1.
Jargque vs Desierto (Cannot find whole case)
(A.C. No. 4509, En Banc Resolution December 5, 1995),
that the Ombudsman or his deputies must first be
removed from office via impeachment before they may
be held to answer for any wrong or misbehavior which
may be proven against them in disbarment proceedings.
_____________________________________________
2. Francisco vs House of Representatives
Facts:
On 28 November 2001, the 12th Congress of the House
of Representatives adopted and approved the Rules of
Procedure in Impeachment Proceedings, superseding
the previous House Impeachment Rules approved by
the 11th Congress.
On 22 July 2002, the House of Representatives adopted
a Resolution, which directed the Committee on Justice
“to conduct an investigation, in aid of legislation, on the
manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary
Development Fund (JDF).
On 2 June 2003, former President Joseph E. Estrada
filed an impeachment complaint (first impeachment
complaint) against Chief Justice Hilario G. Davide Jr. and
seven Associate Justices of the Supreme Court for
“culpable violation of the Constitution, betrayal of the
public trust and other high crimes.” The complaint was
endorsed by House Representatives, and was referred
to the House Committee on Justice on 5 August 2003 in
accordance with Section 3(2) of Article XI of the
Constitution. The House Committee on Justice ruled on
13 October 2003 that the first impeachment complaint
was “sufficient in form,” but voted to dismiss the same
on 22 October 2003 for being insufficient in substance.
The following day or on 23 October 2003, the second
impeachment complaint was filed with the Secretary
General of the House by House Representatives against
Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by
above-mentioned House Resolution. The second
impeachment complaint was accompanied by a
“Resolution of Endorsement/Impeachment” signed by
at least 1/3 of all the Members of the House of
Representatives.
Various petitions for certiorari, prohibition, and
mandamus were filed with the Supreme Court against
the House of Representatives, et. al., most of which
petitions contend that the filing of the second
impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the
Constitution that “[n]o impeachment proceedings shall
be initiated against the same official more than once
within a period of one year.”
Issues:
1. Whether or not the offenses alleged in the Second
impeachment complaint constitute valid impeachable
offenses under the Constitution.
2. Whether or not Sections 15 and 16 of Rule V of the
Rules on Impeachment adopted by the 12th Congress
are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution.
3. Whether the second impeachment complaint is
barred under Section 3(5) of Article XI of the
Constitution.
Rulings:
1. This issue is a non-justiciable political question which
is beyond the scope of the judicial power of the
Supreme Court under Section 1, Article VIII of the
Constitution.
Any discussion of this issue would require the Court to
make a determination of what constitutes an
impeachable offense. Such a determination is a purely
political question which the Constitution has left to the
sound discretion of the legislation. Such an intent is
clear from the deliberations of the Constitutional
Commission.
Courts will not touch the issue of constitutionality
unless it is truly unavoidable and is the very lis
mota or crux of the controversy.
2. The Rule of Impeachment adopted by the House of
Congress is unconstitutional.
Section 3 of Article XI provides that “The Congress shall
promulgate its rules on impeachment to effectively
carry out the purpose of this section.” Clearly, its power
to promulgate its rules on impeachment is limited by
the phrase “to effectively carry out the purpose of this
section.” Hence, these rules cannot contravene the very
purpose of the Constitution which said rules were
intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations
on its power to make rules.
It is basic that all rules must not contravene the
Constitution which is the fundamental law. If as alleged
Congress had absolute rule making power, then it
would by necessary implication have the power to alter
or amend the meaning of the Constitution without need
of referendum.
3. It falls within the one year bar provided in the
Constitution.
Having concluded that the initiation takes place by the
act of filing of the impeachment complaint and referral
to the House Committee on Justice, the initial action
taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has
been initiated in the foregoing manner, another may
not be filed against the same official within a one year
period following Article XI, Section 3(5) of the
Constitution.
Considering that the first impeachment complaint, was
filed by former President Estrada against Chief Justice
Hilario G. Davide, Jr., along with seven associate justices
of this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives
Gilberto C. Teodoro, Jr. and Felix William Fuentebella
against the Chief Justice on October 23, 2003 violates
the constitutional prohibition against the initiation of
impeachment proceedings against the same
impeachable officer within a one-year period.
Hence, Sections 16 and 17 of Rule V of the Rules of
Procedure in Impeachment Proceedings which were
approved by the House of Representatives on
November 28, 2001 are unconstitutional. Consequently,
the second impeachment complaint against Chief
Justice Hilario G. Davide, Jr. which was filed by
Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary
General of the House of Representatives on October 23,
2003 is barred under paragraph 5, section 3 of Article XI
of the Constitution.
_____________________________________________
3. Binay vs Sandiganbayan
Pursuant to Section 4, Article XIII of the 1973
Constitution, Presidential Decree No. 1486 created an
Anti-Graft Court known as the Sandiganbayan. Since
then the jurisdiction of the Sandiganbayan has
undergone various
changes, 1 the most recent of which were effected
through Republic Act Nos. 7975 2 and 8249. 3 Whether
the Sandiganbayan, under these laws, exercises
exclusive original jurisdiction over criminal cases
involving municipal mayors accused of violations of
Republic Act No. 3019 4 and Article 220 of the Revised
Penal Code 5 is the central issue in these consolidated
petitions.
In G.R. Nos. 120681-83, petitioner Jejomar Binay seeks
to annul, among others, the Resolution of the
Sandiganbayan denying his motion to refer Criminal
Case Nos. 21001, 21005 and 21007 to the Regional Trial
Court (RTC) of Makati and declaring that the
Sandiganbayan has jurisdiction over said cases despite
the enactment of R.A. No. 7975.
In G.R. No. 128136, petitioner Mario C. Magsaysay, et
al. assail the October 22, 1996 Resolution of the
Sandiganbayan, reversing its Order of June 21, 1996
which suspended the proceedings in Criminal Case No
23278 in deference to whatever ruling this Court will lay
down in the Binay cases.1âwphi1.nêt
The, facts, as gathered from the records, are as follows:
G.R. Nos. 120681-83
On September 7, 1994, the Office of the Ombudsman
filed before the Sandiganbayan three separate
informations against petitioner Jejomar Binay, one for
violation of Article 220 of the Revised Penal Code, 6 and
two for violation of Section 3 (e) of R.A. No. 3019. 7 The
informations, which were subsequently amended on
September 15, 1994, all alleged that the acts
constituting these crimes were committed in 1987
during petitioner's incumbency as Mayor of Makati,
then a municipality of Metro Manila.
Thereafter, petitioner moved to quash the
informations. He contented that the six-year delay from
the time the charges were filed in the Office of the
Ombudsman on July 27, 1988 to the time the
informations were filed in the Sandiganbayan on
September 7, 1994 constituted a violation of his right to
due process. Arraignment of the accused was held in
abeyance pending the resolution of this motion.
On March 29, 1995, the Sandiganbayan issued a
Resolution denying petitioner's motion to quash.
Petitioner's motion for reconsideration, which was
opposed by the prosecution, was likewise denied by the
Sandiganbayan. The resolution denying the motion for
reconsideration, however, was issued before petitioner
could file a reply to the prosecution's opposition to the
motion for reconsideration.
In the meantime, on March 31, 1995, the prosecution
filed a "Motion to Suspend Accused Pendente Lite." The
Sandiganbayan, in a Resolution dated April 25, 1995,
granted the motion and ordered the suspension of
petitioner for ninety days from receipt of the resolution.
The court ruled that the requisites for
suspension pendente lite were present as petitioner was
charged with one of the offenses under Section 13 of
R.A. No. 3019 8 and the informations containing these
charges had previously been held valid in the resolution
denying the motion to quash and the resolution denying
the motion for reconsideration.
Petitioner thus filed before this Court a petition
for certiorari, 9 to set aside the resolution denying his
motion for reconsideration, claiming that he was denied
due process when the Sandiganbayan ordered his
suspensionpendente lite before he could file a reply to
the prosecution's opposition to his motion for
reconsideration of the resolution denying the motion to
quash. In a Resolution dated April 28, 1995, the Court
directed the Sandiganbayan to, among other things,
permit petitioner to file said reply.
After allowing and considering petitioner's reply, the
Sandiganbayan, on June 6, 1995, issued a Resolution
reiterating the denial of his motion for reconsideration
of the denial of the motion to quash. On the same day,
the Sandiganbayan issued another resolution reiterating
the order suspending petitioner pendente lite.
Meanwhile, R.A. No. 7975, redefining the jurisdiction of
the Sandiganbayan, took effect on May 16, 1995. 10
On June 13, 1995, petitioner filed before the
Sandiganbayan a motion to refer his cases to the
"proper court" for further proceedings, alleging that
when the two Resolutions, both dated June 6, 1995,
were issued by the Anti-Graft Court, it had already lost
jurisdiction over the subject cases. The Sandiganbayan,
in a Resolution dated July 4, 1995, denied petitioner's
motion, holding thus:
There is no question that Municipal Mayors are
classified as Grade "27" under the Compensation &
Position Classification Act of 1989. Since, at the time of
the commission of the offenses charged in the above-
entitled cases, the accused Mayor Jejomar C. Binay was
a Municipal Mayor, although in an acting or interim
capacity, the Sandiganbayan, has, under Section 4 (e) 5,
original jurisdiction over the cases therein filed against
him. The allegation that Mayor Binay ought to have
been classified with a salary grade lower than Grade
"27", because at the time of the commission of the
offenses charged he was paid a salary which merits a
grade lower than Grade "27" does not hold water. In
1986 when the herein offenses were committed by the
accused, the Compensation & Position Classification Act
of 1989 was not as yet in existence. From the very
definition of the very Act itself, it is evident that the Act
was passed and had been effective only in 1989. The
Grade classification of a public officer, whether at the
time of the commission of the offense or thereafter, is
determined by his classification under the
Compensation & Position Classification Act of 1989.
Thus since the accused Mayor Jejomar C. Binay was a
Municipal Mayor at the time of the commission of the
offenses and the Compensation & Position Classification
Act of 1989 classifies Municipal Mayors as Grade "27", it
is a conclusion beyond cavil that the Sandiganbayan has
jurisdiction over the accused herein.
As of July 1, 1989, when Republic Act No. 6758 took
effect, Municipal Mayor Jejomar C. Binay had begun
receiving a monthly salary of P15,180.00 which is
equivalent to Grade "28" under the salary scale
provided for in Section 27 of the said Act. Under the
Index of Occupational Services, the position titles and
salary grades of the Compensation & Position
Classification system prepared by the Department of
Budget and Management pursuant to Section 6 of
Republic [A]ct No. 6758, the position of Municipal
Mayor had been classified as Grade "27." 11
On July 7, 1995, petitioner filed the present petition
for certiorari, prohibition and mandamus questioning
the jurisdiction of the Sandiganbayan over Criminal
Case Nos. 21001, 21005 and 21007. He prayed, among
others, that the Court annul and set aside: (1) the
Resolution of the Sandiganbayan dated June 6, 1995
reiterating the denial of the motion for reconsideration
of the motion to quash; (2) the Resolution of the same
court also dated June 6, 1995 reiterating the order
suspending petitioner pendente lite; and (3) the
Resolution of the Sandiganbayan dated July 4, 1995
denying the motion to refer case to the RTC. Petitioner
also asked that the Court issue a temporary restraining
order preventing the suspension and arraignment of
petitioner. The Court on July 7, 1995, resolved, among
others, to issue the temporary restraining order prayed
for.
On July 14, 1995, petitioner filed an "Addendum to
Petition (To allow the introduction of alternative
reliefs)," praying that, should this Court hold that the
Sandiganbayan has jurisdiction over the cases, the
criminal cases filed against him be dismissed just the
same on the ground that the long delay of the
preliminary investigation before the Ombudsman prior
to the filing of the informations, deprived him of his
right to due process; and that, moreover, there was no
probable cause to warrant the filing of the informations.
G.R. No. 128136
Petitioner Mario Magsaysay is the Mayor of the
Municipality of San Pascual, Batangas. Save for
petitioner Vicente dela Rosa, all of Mayor Magsaysay's
co-petitioners are officials of the same municipality.
In a complaint dated April 16, 1994, Victor Cusi, then
Vice-Mayor of San Pascual, Batangas, charged
petitioners along with Elpidia Amada, Jovey C. Babago,
and Brigido H. Buhain, also officials of San Pascual
Batangas, with violation of R.A. No. 3019, as amended.
The complaint charged the respondent municipal
officials of overpaying Vicente de la Rosa of TDR
Construction for the landscaping project of the San
Pascual Central School. This case was docketed in the
Office of the Ombudsman as OMB-1-94-1232.
In a Resolution dated June 14, 1995, Graft Investigation
Officer Lourdes A. Alarilla recommended the filing of an
information for violation of Section 3(e) and (g) of R.A.
No. 3019, as amended, against petitioners with the
Sandiganbayan. Director Elvis John S. Asuncion
concurred in the resolution, and Manuel C. Domingo,
Deputy Ombudsman for Luzon, recommended approval
of the same. The resolution was approved by then
Acting Ombudsman Francisco A. Villa with the following
marginal note:
Authority is given to the Deputy Ombudsman for Luzon
to cause the preparation of the information and to
approve the same for filing with the proper court. 12
On August 11, 1995, an Information for violation of
Section 3(e) and (g) was filed against petitioners and
Jovey C. Babago, not with the Sandiganbayan per the
June 14, 1995 Resolution, but with the RTC of Batangas
City. The information was signed by Lourdes A. Alarilla,
the same Graft Investigation Officer who recommended
the filing of the information with the Sandiganbayan.
In the meantime, a group denominated as the
Concerned Citizens of San Pascual, Batangas filed a
complaint before the Ombudsman against petitioners,
and Elpidia Amada and Brigido Buhain, with violations
of R.A. No. 3019. The complaint also alleged, among
others, the overpricing of the landscaping project of San
Pascual Central School. The case was docketed as OMB-
0-94-0149.
In a Resolution dated July 27, 1995, Graft Investigation
Officer Ernesto M. Nocos recommended the filing of an
information charging petitioners with violation of
Section 3(e) and (g) of R.A. No. 3019, as amended "with
the proper court." The resolution, which was
recommended for approval by Nicanor J. Cruz, OIC-
Deputy Ombudsman for Luzon, and approved by
Ombudsman Aniano A. Desierto, adopted the findings
and conclusions in the resolution in OMB-1-94-1232
that the landscaping project was overpriced.
On February 9, 1996, another Information for violation
of Section 3(e)of R.A. No. 3019, as amended, was filed
against petitioners for the overpricing of the
landscaping project, this time before the
Sandiganbayan. The information was subsequently
amended on May 17, 1996. Except for the date the
alleged crime was committed, the information charged
essentially the same inculpatory facts as the
information filed in the RTC. The case was docketed in
the Sandiganbayan as Crim. Case No. 22378.
On June 1, 1996, the accused filed with the
Sandiganbayan a motion to quash the information in
Crim. Case No. 22378 on the following grounds: that the
Sandiganbayan had no jurisdiction over the case; that
the accused were charged with the same offense in two
informations; and that the proceedings in the
Sandiganbayan would expose petitioners to double
jeopardy. The Sandiganbayan denied the accused's
motion to quash in a Resolution dated June 21, 1996.
The court, however, suspended proceedings in the case
until the Supreme Court resolved the question of the
Sandiganbayan's jurisdiction involved in the Binay
petition.
Meanwhile, on June 7, 1996, Prosecutor Eric Mallonga
filed a motion before the RTC to refer the R.A. No. 3019
case pending therein to the Sandiganbayan, arguing
that under R.A. No. 7975 the Sandiganbayan, not the
RTC, had jurisdiction over the case. On July 3, 1996, the
RTC issued an order holding in abeyance the resolution
of the motion to refer the case since the issue of
jurisdiction was pending before the Sandiganbayan.
Back at the Sandiganbayan, the prosecution, on July 24,
1996, filed a motion for reconsideration of the
Sandiganbayan's Order dated June 21, 1996. On August
2, 1996, filed their own motion for the reconsideration
of the same order. On October 22, 1996, the
Sandiganbayan granted the motion for reconsideration
filed by the prosecution and set the case for
arraignment. Petitioners moved for a reconsideration of
the October 22, 1996 Resolution ordering their
arraignment, which motion was denied on February 17,
1997.
On February 27, 1997, the accused filed the present
petition.
On October 1, 1997, the Court resolved to issue a
temporary restraining order to prevent respondents
from further proceeding with Crim. Case No. 23278 of
the Sandiganbayan.
The petition raises the following issues:
I
Had the Sandiganbayan been ousted of its jurisdiction
over the case of municipal mayor after the passage of
Republic Act No. 7975, coupled with the filing earlier of
an information for the same offense before the
Regional Trial Court having territorial jurisdiction and
venue of the commission of the offense?
II
Are the respondents Ombudsman and the prosecutors
estopped by laches or waiver from filing and
prosecuting the case before respondent Sandiganbayan
after the filing earlier of the information in the proper
court, thereafter repudiating it, seeking another court
of the same category and finally to respondent court?
III
Whether or not the filing of two (2) informations for the
same offense violated the rule on duplicity of
information?
IV
Whether or not the trial to be conducted by respondent
court, if the case shall not be dismissed, will expose the
petitioners who are accused therein to double
jeopardy?
V
Under the circumstances, are the respondent
Ombudsman and the prosecutors guilty of forum
shopping? 13
On October 6, 1997, the Court resolved to consolidate
G.R. No. 128136 (the Magsaysay petition) with G.R. Nos.
120681-83 (the Binay petition).
In resolving these consolidated petitions, the Court shall
first address the common question of the
Sandiganbayan's jurisdiction.
I
The Court rules that it is the Sandiganbayan which has
jurisdiction over the subject cases.
The informations against Mayor Binay were filed in the
Sandiganbayan on July 7, 1994 pursuant to Presidential
Decree No. 1606,14 as amended by Presidential Decree
No. 1861, 15 the pertinent provisions of which state:
Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public
officers and employees in relation to their office,
including those employed in government-owned or
controlled corporations, whether simple or complexed
with other crimes, where the penalty prescribed by law
is higher than prision correccional or imprisonment for
six (6) years, or a fine of
P6,000.00; PROVIDED, HOWEVER, that offenses or
felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision
correccional or imprisonment for six (6) years or a fine
of P6,000.00 shall be tried by the proper Regional Trial
Court, Metropolitan Trial Court and Municipal Circuit
Trial Court.
xxx xxx xxx
On May 16, 1995, R.A. No. 7975 took effect. At this
time, Mayor Binay had not yet been arraigned in the
Sandiganbayan. On the other hand, R.A. No. 7975 was
already in effect when the information against Mayor
Magsaysay et al., was filed on August 11, 1995 in the
RTC of Batangas City.
Sec. 2 of R.A. No. 7975 amended Section 4 of P.D. No.
1606 to read as follows:
Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code, where one
or more of the principal accused are officials occupying
the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of
the commission of the offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as grade "27" and higher, of the
Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of
the sangguniang panlunsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) PNP chief superintendent and PNP officers of higher
rank;
(f) City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress and officials thereof classified
as Grade "27" and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as
Grade "27" and higher under the Compensation and
Position Classification Act of 1989.
b. Other offenses or felonies committed by the public
officials and employees mentioned in subsection (a) of
this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A.
In cases where none of the principal accused are
occupying positions corresponding to salary grade "27"
or higher, as prescribed in the said Republic Act No.
6758, or PNP officers occupying the rank of
superintendent or higher, or their equivalent, exclusive
jurisdiction thereof shall be vested in the proper
Regional Trial Court, Metropolitan Trial Court, Municipal
Trial Court, and Municipal Circuit Trial Court, as the case
may be, pursuant to their respective jurisdiction as
provided in Batas Pambansa Blg. 129.
xxx xxx xxx
While the cases against petitioners were pending in this
Court, Congress enacted R.A. No. 8249, again redefining
the jurisdiction of the Anti-Graft Court. This law took
effect, per Section 10 thereof, on February 23, 1997,
fifteen days after its complete publication on February
8, 1997 in the Journal and Malaya, two newspapers of
general circulation.
As further amended by Section 4 of R.A. No. 8249,
Section 4 of P.D. No. 1606 now reads:
Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials
occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch occupying the
position of regional director and higher, otherwise
classified as grade "27" and higher, of the
Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of
the sangguniang panlunsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations.
(2) Members of Congress and officials thereof classified
as Grade "27" and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as
Grade "27" and higher under the Compensation and
Position Classification Act of 1989.
b. Other offenses or felonies whether simple or
complexed with other crimes committed by the public
officials and employees mentioned in subsection (a) of
this section in relation to their office.
d. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.
In cases where none of the accused are occupying
positions corresponding to salary grade "27" or higher,
as prescribed in the said Republic Act No. 6758, or
military and PNP officers mentioned above, exclusive
original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal
trial court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions as
provided in Batas Pambansa Blg. 129, as amended.
Petitioners contend that they do not come under the
exclusive original jurisdiction of the Sandiganbayan
because:
(1) At the alleged time of the commission of the crimes
charged, petitioner municipal mayors were not
classified as Grade 27.
(2) Municipal mayors are not included in the
enumeration in Section 4a(1) of P.D. No. 1606, as
amended by R.A. No. 7975.
(3) Congressional records reveal that the law did not
intend municipal mayors to come under the exclusive
original jurisdiction of the Sandiganbayan.
A
In support of his contention that his position was not
that of Grade 27, Mayor Binay argues:
. . . The new law's consistent and repeated reference to
salary grades show[s] an intention to base the
separation of jurisdiction between the Sandiganbayan
and the regular courts on pay scale. Grades are
determined by compensation. The essence of grades is
pay scales. Therefor, pay scales determine grades. 16
Mayor Binay, thus, presented a Certification 17 from the
City Personnel Officer of Makati stating that petitioner
as mayor received a monthly salary of only P10,793.00
from March 1987 to December 31, 1988. This amount
was supposedly equivalent to Grade 22 under R.A. No.
6758.
Mayor Magsaysay, for his part, submitted a similar
Certification 18 from the Municipal Treasurer of San
Pascual, Batangas, stating:
. . . that the basic monthly salary received by Mario C.
Magsaysay Municipal Mayor of San Pascual, Batangas
with Salary Grade 27 is ELEVEN THOUSAND EIGHT
HUNDRED TWENTY EIGHT PESOS (P11,828.00) per
month as of November 3, 1993 equivalent only to Grade
25, Step 5 of RA 6758, the Compensation and Position
Classification Act of 1989.
Sec. 444(1) (Grad[e] 27) of RA 6758 is not as yet
implemented due to budgetary constraints. This
certification is issued to Mayor Mario C. Magsaysay this
30th day of May 1996 at San Pascual, Batangas for
whatever legal purpose and/or purposes it may serve.
The Court does not subscribe to the manner by which
petitioners classify Grades.
The Constitution 19 states that in providing for the
standardization of compensation of government
officials and employees, Congress shall take "into
account the nature of the responsibilities pertaining to,
and the qualifications required for their positions," thus:
The Congress shall provide for the standardization of
compensation of government officials, including those
in government-owned or controlled corporations with
original charters, taking into account the nature of the
responsibilities pertaining to, and the qualifications
required for their positions.
Corollary thereto, Republic Act No. 6758 20 provides in
Section 2 thereof that differences in pay are to be
based "upon substantive differences in duties and
responsibilities, and qualification requirements of the
positions." In short, the nature of an official's position
should be the determining factor in the fixing of his or
her salary. This is not only mandated by law but
dictated by logic as well.
Consistent with these policies, the law employs the
scheme known as the "grade" defined in Presidential
Decree No. 985 21 as including
. . . all classes of positions which, although different
with respect to kind or subject matter of work, are
sufficiently equivalent as to level of difficulty and
responsibilities and level of qualification requirements
of the work to warrant the inclusion of such classes of
positions within one range of basic compensation. 22
The grade, therefore, depends upon the nature of one's
position — the level of difficulty, responsibilities, and
qualification requirements thereof — relative to that of
another position. It is the official's Grade that
determines his or her salary, not the other way around.
It is possible that a local government official's salary
may be less than that prescribed for his Grade since his
salary depends also on the class and financial capability
of his or her respective local government
unit. 23 Nevertheless, it is the law which fixes the
official's grade.
Thus, Section 8 of R.A. No. 6758 fixes the salary grades
of the President, Vice-President, Senate President,
Speaker, Chief Justice, Senators, Members of the House
of Representatives, Associate Justices of the Supreme
Court, as well as the Chairmen and Members of the
Constitutional Commissions. Section 8 also authorizes
the Department of Budget and Management (DBM) to
"determine the officials who are of equivalent rank to
the foregoing officials, where applicable" and to assign
such officials the same Salary Grades subject to a set of
guidelines found in said section.
For positions below those mentioned under Section 8,
Section 9 instructs the DBM to prepare the "Index of
Occupational Services" guided by the Benchmark
Position prescribed in Section 9 and the factors
enumerated therein.
To determine whether an official is within the exclusive
original jurisdiction of the Sandiganbayan, therefore,
reference should be made to R.A. No. 6758 and the
Index of Occupational Services, Position Titles and
Salary Grades. Salary level is not determinative. An
official's grade is not a matter of proof, but a matter
of law, of which the Court must take judicial notice. 24
As both the 1989 and 1997 versions of the Index of
Occupational Services, Position Titles and Salary Grades
list the Municipal Mayor under Salary Grade 27,
petitioner mayors come within the exclusive original
jurisdiction of the Sandiganbayan. Petitioner mayors are
"local officials classified as Grade "27" and higher under
the Compensation and Position Classification Act of
1989," under the catchall provision, Section 4a(5) of
P.D. No. 1606, as amended by R.A. No. 7975. More
accurately, petitioner mayors are "[o]fficials of the
executive branch occupying the positions of regional
director and higher, otherwise classified as grade "27"
and higher, of the Compensation and Position
Classification Act of 1989," under Section 4a(1) of P.D.
No. 1606, as amended by R.A. No. 7975. 25
B
Petitioners, however, argue that they are not included
in the enumeration in Section 4a(1). They invoke the
rule in statutory construction expressio unius est
expressio alterius. As what is not included in those
enumerated is deemed excluded, municipal officials are
excluded from the Sandiganbayan's exclusive original
jurisdiction.
Resort to statutory construction, however, is not
appropriate where the law is clear and
unambiguous. 26 The law is clear in this case. As stated
earlier, Section 4a(1) of P.D. No. 1606, as amended by
R.A. No. 7975, speaks of "[o]fficials of the executive
branch occupying the positions of regional director and
higher, otherwise classified as grade "27" and higher, of
the Compensation and Position Classification Act of
1989."
The Court fails to see how a different interpretation
could arise even if the plain meaning rule were
disregarded and the law subjected to interpretation.
The premise of petitioners' argument is that the
enumeration in Section 4a(1) is exclusive. It is not. The
phrase "specifically including" after "[o]fficials of the
executive branch occupying the positions of regional
director and higher, otherwise classified as grade "27"
and higher, of the Compensation and Position
Classification Act of 1989" necessarily conveys the very
idea of non-exclusivity of the enumeration. The
principle of expressio unius est exclusio alterius does not
apply where other circumstances indicate that the
enumeration was not intended to be exclusive, 27 or
where the enumeration is by way of example
only. 28 In Conrado B. Rodrigo, et al. vs. The Honorable
Sandiganbayan (First Division), supra, the Court held
that the catchall in Section 4a(5) was "necessary for it
would be impractical, if not impossible, for Congress to
list down each position created or will be created
pertaining to Grades 27 and above." The same rationale
applies to the enumeration in Section 4a(1). Clearly, the
law did not intend said enumeration to be an
exhaustive list.
Should there be any doubt as to whether petitioner
mayors are under the category of Grade 27, Section
444(d) of the Local Government Code settles the
matter:
The municipal mayor shall receive a minimum monthly
compensation corresponding to Salary Grade twenty-
seven (27) as prescribed under R.A. No. 6758 and the
implementing guidelines issued pursuant thereto.
In the Court's Resolution in Rodrigo dated July 2, 1999
denying the motion for reconsideration, we treated the
above provision as "confirmatory of the Salary Grade
assigned by the DBM to Municipal Mayors."
C
Petitioner Binay cites previous bills 29 in Congress
dealing with the jurisdiction of the Sandiganbayan.
These bills supposedly sought to exclude municipal
officials from the Sandiganbayan's exclusive original
jurisdiction to relieve these officials, especially those
from the provinces, of the financial burden brought
about by trials in Manila.
The resort to congressional records to determine the
proper application of the law in this case is unwarranted
in this case for the same reason that the resort to the
rule of inclusio unius est expressio alterius is
inappropriate.
Verily, the interpretation of the law desired by the
petitioner may be more humane but it is also an
elementary rule in statutory construction that when the
words and phrases of the statute are clear and
unequivocal, their meaning must be determined from
the language employed and the statute must be taken
to mean exactly what it says. (Baranda v. Gustilo, 165
SCRA 758-759 [1988]). The courts may not speculate as
to the probable intent of the legislature apart from the
words (Aparri v. CA, 127 SCRA 233 [1984]). When the
law is clear, it is not susceptible to interpretation. It
must be applied regardless of who may be affected,
even if the law may be harsh or onerous.
(Nepomuceno, et al. v. FC, 110 Phil. 42). And even
granting that exceptions may be conceded, the same as
a general rule, should be strictly but reasonably
construed; they extend only so far as their language
fairly warrants, and all doubts should be resolved in
favor of the general provisions rather than the
exception. Thus, where a general rule is established by
statute, the court will not curtail the former nor add to
the latter by implication (Samson v. C.A., 145 SCRA 654
[1986]). 30
Thus, in Rodrigo, petitioners therein argued in their
motion for reconsideration:
. . . that the inclusion of Municipal Mayors within the
jurisdiction of the Sandiganbayan would be
inconvenient since the witnesses in their case would
come from Baguio City and San Nicolas, Pangasinan.
This, according to petitioners, would defeat one of the
purposes of R.A. No. 7975, that is, the convenience of
the accused.
The Court, in denying the motion for reconsideration,
held, among others, that:
The legislature has nevertheless chosen the mode and
standard by which to implement its intent, and courts
have no choice but to apply it. Congress has willed that
positions with Grade 27 and above shall come within
the jurisdiction of the Sandiganbayan and this Court is
duty-bound to obey the congressional will.
Petitioner Binay also quotes the Sponsorship Speech of
Senator Roco, stating:
Since February 1979, when the Sandiganbayan was
established up to the present, the Court has been
confronted with the problem of those accused who are
of limited means who stand trial for "petty crimes," the
so-called "small fry" — the barangay officials, the
municipal officials and employees, postal clerks and
letter carriers and the like — who are involved with
"nickel-and-dime" cases and money-related cases such
as malversation, estafa and theft. . . .1âwphi1.nêt
xxx xxx xxx
Senate Bill No. 1353 modifies the present jurisdiction of
the Sandiganbayan such that only those occupying high
positions in the Government and the military fall under
the jurisdiction of the court. 31
It is not clear, however, whether Senator Roco meant
that all municipal officials are excluded from the
jurisdiction of the Sandiganbayan. In any case, courts
are not bound by a legislator's opinion in congressional
debates regarding the interpretation of a particular
legislation. It is deemed a mere personal opinion of the
legislator. 32 Such opinions do not necessarily reflect the
view of the entire Congress. 33
D
From the foregoing discussion, it is clear that the cases
against petitioner Binay cannot be referred to the
regular courts under Section 7 of R.A. No. 7975, which
provides:
Sec. 7. Upon effectivity of this Act, all criminal cases in
which trial has not begun in the Sandiganbayan shall be
referred to the proper courts.
In construing the correct import of Section 7, it may be
helpful to refer to the guidelines in determining
jurisdiction laid down in Bengzon vs. Inciong: 34
The rule is that where a court has already obtained and
is exercising jurisdiction over a controversy, its
jurisdiction to proceed to the final determination of the
cause is not affected by new legislation placing
jurisdiction over such proceedings in another tribunal.
The exception to the rule is where the statute expressly
provides, or is construed to the effect that it is intended
to operate as to actions pending before its enactment.
Where a statute changing the jurisdiction of a court has
no retroactive effect, it cannot be applied to a case that
was pending prior to the enactment of the statute.
R.A. No. 7975, by virtue of Section 7, belongs to the
exception rather than the rule. The provision is
transitory in nature and expresses the legislature's
intention to apply its provisions on jurisdiction to
"criminal cases in which trial has not begun in the
Sandiganbayan." To this extent, R.A. 7975 is retroactive.
Such a transitory provision is not peculiar to R.A. No.
7975; similar provisions are found in other laws
reallocating the jurisdiction of the courts. 35 There is no
reason why Section 7 of R.A. No. 7975 should be any
different.
The term "proper courts," as used in Section 7, means
"courts of competent jurisdiction," and such jurisdiction
is defined in Section 4 of P.D. No. 1606, as amended by
R.A. No. 7975. The former should not be read in
isolation but construed in conjunction with the latter.
The term "proper courts" as used in Section 7,
therefore, is not restricted to "regular courts," but
includes as well the Sandiganbayan, a special court. If
the intent of Congress were to refer all cases the trials
of which have not begun to the regular courts, it should
have employed the term "proper regular courts" or
"regular courts" instead of "proper courts." Accordingly,
the law in the third paragraph of Section 4 of P.D. No.
1606, as amended by Section 2 of R.A. No. 7975, uses
the term "regular courts," not "proper courts":
The Sandiganbayan shall exercise exclusive appellate
jurisdiction on appeals from the final judgments,
resolutions or orders of regular courts where all the
accused are occupying positions lower than salary grade
"27," or not otherwise covered by the preceding
enumeration. [emphasis supplied.]
Construed thus, the effects of Section 7 may be
summarized as follows:
1. If trial of cases before the Sandiganbayan has already
begun as of the approval of R.A. No. 7975, R.A. No. 7975
does not apply.
2. If trial of cases before the Sandiganbayan
has not begun as of the approval of R.A. No. 7975, then
R.A. No. 7975 applies.
(a) If by virtue of Section 4 of P.D. No. 1606, as
amended by Section 2 of R.A. No. 7975, the
Sandiganbayan has jurisdiction over a case before it,
then the cases shall be referred to the Sandiganbayan.
(b) If by virtue of Section 4 of P.D. No. 1606, as
amended by Section 2 of R.A. No. 7975, the
Sandiganbayan has no jurisdiction over a case before it,
the case shall be referred to the regular courts.
The trial of the cases involving Mayor Binay had not yet
begun as of the date of the approval of R.A. No. 7975;
consequently, the Anti-Graft Court retains jurisdiction
over said cases.
In any case, whatever seeming ambiguity or doubt
regarding the application of Section 7 of R.A. No. 7975
should be laid to rest by Section 7 of R.A. No. 8249,
which states:
Sec. 7. Transitory Provision. — This Act shall apply to all
cases pending in any court over which trial has not
begun as of the approval hereof.
The latter provision more accurately expresses the
legislature's intent and in any event should be applied in
this case, R.A. No. 8249 having superseded R.A. No.
7975.
In Panfilo M. Lacson vs. The Executive Secretary, et
al., 36 the Court explained the purpose of the foregoing
provision.
. . . it can be reasonably anticipated that an alteration of
[the Sandiganbayan's] jurisdiction would necessarily
affect pending cases, which is why it has to provide for a
remedy in the form of a transitory provision. . . . . The
transitory provision does not only cover cases which are
in the Sandiganbayan but also in "any court." . . . .
Moreover, those cases where trial had already begun
are not affected by the transitory provision under
Section 7 of the new law (RA 8249). [Emphasis in the
original.]
The possible disruptive effect of the amendments to the
Sandiganbayan's jurisdiction on pending cases was,
therefore, not lost on the legislature. Congress has,
furthermore, deemed the commencement of the trial
as the crucial point in determining whether a court
retains a case pending before it or lose the same on the
ground of lack of jurisdiction per the provisions of R.A.
No. 8249. The law obviously does not want to waste the
time and effort already devoted to the presentation of
evidence if trial had already begun. On the other hand,
not much disruption would be caused if the amendment
were made to apply to cases the trials of which have yet
to start.
The ramifications of Section 7 of R.A. No. 8249 may be
stated as follows:
1. If trial of the cases pending before whatever court
has already begun as of the approval of R.A. No. 8249,
said law does not apply.
2. If trial of cases pending before whatever court
has not begun as of the approval of R.A. No. 8249, then
said law applies.
(a) If the Sandiganbayan has jurisdiction over a case
pending before it, then it retains jurisdiction.
(b) If the Sandiganbayan has no jurisdiction over a case
pending before it, the case shall be referred to the
regular courts.
(c) If the Sandiganbayan has jurisdiction over a case
pending before a regular court, the latter loses
jurisdiction and the same shall be referred to the
Sandiganbayan.
(d) If a regular court has jurisdiction over a case pending
before it, then said court retains jurisdiction.
Thus, under both R.A. Nos. 7975 and 8429, the
Sandiganbayan retains jurisdiction over said cases.
II
Petitioner Binay avers in his Addendum to Petition that
his right to speedy disposition has been violated by the
inordinate delay in the resolution of the subject cases
by the Ombudsman.
Art. III of the Constitution provides that:
Sec. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.
The constitutional right to "a speedy disposition of
cases" is not limited to the accused in criminal
proceedings but extends to all parties in all cases,
including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial
hearings. 37 Hence, under the Constitution, any party to
a case may demand expeditious action on all officials
who are tasked with the administration of justice. 38
However, the right to a speedy disposition of a case, like
the right to speedy trial, 39 is deemed violated only
when the proceedings is attended by vexatious,
capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured,
or when without cause or justifiable motive a long
period of time is allowed to elapse without the party
having his case tried. 40 Equally applicable is the
balancing test used to determine whether a defendant
has been denied his right to a speedy trial, or a speedy
disposition of a case for that matter, in which the
conduct of both the prosecution and the defendant is
weighed, and such factors as the length of the delay,
the reasons for such delay, the assertion or failure to
assert such right by the accused, and the prejudice
caused by the delay. 41 The concept of speedy
disposition is a relative term and must necessarily be a
flexible concept. 42
A mere mathematical reckoning of the time involved,
therefore, would not be sufficient. 43 In the application
of the constitutional guarantee of the right to speedy
disposition of cases, particular regard must also be
taken of the facts and circumstances peculiar to each
case. 44
In Tatad vs. Sandiganbayan, 45 the Court held that the
length of delay and the simplicity of the issues did not
justify the delay in the disposition of the cases therein.
The "unexplained inaction" 46 of the prosecutors called
for the dismissal of the cases against petitioner Tatad.
In Alvizo vs. Sandiganbayan, 47 the Court also ruled that
there was no violation of the right to speedy
disposition. The Court took into account the reasons for
the delay, i.e., the frequent amendments of procedural
laws by presidential decrees, the structural
reorganizations in existing prosecutorial agencies and
the creation of new ones by executive fiat, resulting in
changes of personnel, preliminary jurisdiction, and the
functions and powers of prosecuting agencies. The
Court likewise considered the failure of the accused to
assert such right, and the lack of prejudice caused by
the delay to the accused.
In Santiago vs. Garchitorena, 48 the complexity of the
issues and the failure of the accused to invoke her right
to speedy disposition at the appropriate time spelled
defeat to her claim to the constitutional guarantee.
In Cadalin vs. POEA's Administrator, 49 the Court,
considering also the complexity of the cases ("not run-
of-the-mill variety") and the conduct of the parties'
lawyers, held that the right to speedy disposition was
not violated therein.
In petitioner Binay's case, the Court finds that there was
no undue delay in the disposition of the subject cases.
The proceedings conducted before the Office of the
Tanodbayan, and later with the Office of the
Ombudsman, adequately explains the length of the
delay:
1. That on July 27, 1988 Bobby Brillante filed with the
Office of the Tanodbayan an affidavit-complaint
charging, Jejomar Binay, Sergio Santos, Roberto Chang,
Delfin Almeda, Nelson Irasga, Nicasio Santiago, Feliciano
Basam, Maria Chan, Romeo Barrios, Azucena Diaz,
Virgilio Clarete, Godofredo Marcelo, Armando San
Miguel, Salvador Pangilinan and John Does of the
following offenses: (a) Massive Malversation of Public
Funds; (b) Multiple Falsification of Public Documents; (c)
Usurpation of Official Functions; (d) Violation of Election
Law; and (e) Violation of Sec. 3(e) of R.A. 3019.
1.1. Brillante's complaint was based on the initial
findings and observations of the COA on the
examination of the cash and accounts covering
transactions from April 1, 1987 to January 4, 1988 and
Post-Audit of Selected Accounts for the last quarter of
1987 of the Municipality of Makati contained in its
Report dated January 11, 1988. The COA furnished the
Tanodbayan a copy of this report on August 1, 1988
upon request of the latter.
1.2. In the letter of the COA transmitting a copy of the
report, the Tanodbayan was informed that this COA
audit report of January 11, 1988 is not yet released
since the Mayor of Makati was given thirty days within
which to explain/clarify the findings in the report and is
subject to change or modification depending upon the
explanation/clarification to be submitted by the Mayor
of Makati. Because of this the information from the
COA the preliminary investigation was held in abeyance
until the submission of the final report.
1.3. On March 1, 1989, the first part of the Final Report
on Audit of Makati was received by the Office of the
Ombudsman and was transmitted for purposes of the
ensuring preliminary investigation to the Tanodbayan
which received the same on March 22, 1989.
1.4. This first part of the Final Report contained the
fifteen (15) adverse findings, above elsewhere stated as
the basis of Bobby Brillante's complaint.
1.5. Eleven (11) COA auditors participated in the
documentation and analysis of its findings and
preparation of the final report.
1.6. The first part of the final report was followed by a
Supplemental Report on Findings No. 1 and 3. This
Supplemental Report is dated July 3, 1989.
2. After securing machine copies of the voluminous
documents supporting the COA findings, Pros.
Margarito Gervacio, Chairman of the Panel of
Prosecutors, issued the corresponding subpoena
directing the respondents to submit their respective
counter-affidavits.
2.1. In compliance with the subpoena, Mayor Jejomar
Binay submitted his counter-affidavit on May 18, 1990,
Marissa Chan, Feliciano Bascon, Nicanor Santiago, Jr. on
June 19, 1990, Renato Manrique on June 4, 1990,
Alfredo Ignacio on June 6, 1990, Roberto Chang on
August 27, 1990. Feliciano Bascon submitted his
Supplemental Affidavit on November 22, 1990.
2.2. Thereafter, clarificatory examinations were
conducted on September 27, 1990, October 26, 1990,
November 8, 9, 14, 22, 1990.
3. On January 15, 1991 Mayor Jejomar Binay submitted
a copy of this Petition forCertiorari in G.R. No. 92380
which he and the municipality of Makati filed with the
Supreme Court against COA Chairman, Eufemio
Domingo and the Commission on Audit, with a
manifestation that said petition is submitted to support
Binay's stand as regard COA Finding No. 9 aforestated.
4. On April 2, 1992 respondent Marissa Chan filed an
affidavit containing allegations incriminating Jejomar
Binay;
5. Upon being ordered to comment on the said April 2,
1992 affidavit of Marissa Chan, Jejomar Binay submitted
his comment thereto on April 30, 1992.
6. On August 4, 1993, the Investigation Panel submitted
to the Deputy Special Prosecutor its Resolution
disposing the preliminary investigation of the case.
6.1. On August 10, 1993 the said Resolution was
approved by the Special Prosecutor, who forwarded the
same and the entire records to the Office of the
Ombudsman for review and/or final action.
6.2. On August 16, 1994, the Review Panel of the
Ombudsman submitted to the latter its review action
for approval.
6.3. On August 19, 1994; the Ombudsman approved
some of the recommendations of the Review Panel and
directed the preparation and filing of the
informations. 50
Furthermore, the prosecution is not bound by the
findings of the Commission on Audit (COA); it must rely
on its own independent judgment in the determination
of probable cause. Accordingly, the prosecution had to
conduct its own review of the COA findings. Judging
from said findings, we find that the cases were
sufficiently complex, thus justifying the length of time
for their resolution. As held by the Sandiganbayan in its
Resolution dated March 29, 1995 denying the Motion to
Quash:
2. Ten charges are involved in these cases and the
prosecution, unable to rely on the raw findings of the
Commission on Audit in 15 reports caused the
investigation and examination of thousands of
vouchers, payrolls, and supporting documents
considering that no less than the Chairman of the
Commission on Audit, assisted by a team supervisor and
10 team members had to take part in the conduct of a
final audit consisting of evaluation and analysis of the
initial findings in the 15 raw reports, the cases must
have involved complicated legal and factual issues
which do warrant or justify a longer period of time for
preliminary investigation.
xxx xxx xxx
5. In the TATAD case, the preliminary investigation was
resolved close to three (3) years from the time all the
counter-affidavits were submitted to the Tanodbayan,
notwithstanding the fact that very few documentary
and testimonial evidence were involved. In the above-
entitled cases, the preliminary investigation of all ten
(10) cases was terminated in merely two (2) years and
four (4) months from the date Mayor Binay filed his last
pleading, on April 30, 1992. 51
Petitioner claims that the Resolution of the
Sandiganbayan ordering his suspension pendente lite is
unwarranted since the informations charging him were
not valid. This contention, however, must fail in view of
our pronouncement that there was no delay in the
resolution of the subject cases in violation of his right to
speedy disposition. Accordingly, the informations in
question are valid and petitioner's suspension pendente
lite must be upheld.
Finally, whether or not there is probable cause to
warrant the filing of the subject cases is a question best
left to the discretion of the Ombudsman. Absent any
grave abuse of such discretion, the Court will not
interfere in the exercise thereof. 52 Petitioner in this
case has failed to establish any such abuse on the part
of the Ombudsman.
III
Having ruled that the criminal case against petitioners in
G.R. No. 128136 is within the exclusive original
jurisdiction of the Sandiganbayan, the Court will now
dispose of the following issues raised by them:
(1) The Sandiganbayan was ousted of its jurisdiction by
the filing of an information alleging the same facts with
the Regional Trial Court.
(2) Respondents are estopped from filing an
information before the Sandiganbayan considering that
they had already filed another information alleging the
same facts before the Regional Trial Court.
(3) The filing of the information before the
Sandiganbayan constitutes double jeopardy.
The Court tackles these arguments successively then
deals with the questions of duplicity of information and
forum shopping.
Petitioners invoke the rule that "the jurisdiction of a
court once it attaches cannot be ousted by subsequent
happenings or events, although of such character which
would have prevented jurisdiction from attaching in the
first instance." 53 They claim that the filing of the
information in the Sandiganbayan was a "subsequent
happening or event" which cannot oust the RTC of its
jurisdiction.
This rule has no application here for the simple reason
that the RTC had no jurisdiction over the case.
Jurisdiction never attached to the RTC. When the
information was filed before the RTC, R.A. No. 7975 was
already in effect and, under said law, jurisdiction over
the case pertained to the Sandiganbayan.
Neither can estoppel be successfully invoked. First,
jurisdiction is determined by law, not by the consent or
agreement of the parties or by estoppel. 54 As a
consequence of this principle, the Court held in Zamora
vs. Court of Appeals 55 that:
It follows that as a rule the filing of a complaint with
one court which has no jurisdiction over it does not
prevent the plaintiff from filing the same complaint
later with the competent court. The plaintiff is not
estopped from doing so simply because it made a
mistake before in the choice of the proper forum. In
such a situation, the only authority the first court can
exercise is to dismiss the case for lack of jurisdiction.
This has to be so as a contrary conclusion would allow a
party to divest the competent court of its jurisdiction,
whether erroneously or even deliberately, in derogation
of the law.
It is true that the Court has ruled in certain cases 56 that
estoppel prevents a party from questioning the
jurisdiction of the court that the party himself invoked.
Estoppel, however, remains the exception rather than
the rule, the rule being that jurisdiction is vested by
law. 57 Even in those instances where the Court applied
estoppel, the party estopped consistently invoked the
jurisdiction of the court and actively participated in the
proceedings, impugning such jurisdiction only when
faced with an adverse decision. This is not the case
here. After discovering that a similar information had
earlier been filed in the RTC, respondents promptly
asked the trial court to refer the case to the
Sandiganbayan, which motion was followed by a motion
to resolve the previous motion. There was no consistent
invocation of the RTC's jurisdiction. There were no
further proceedings after the filing of the information
save for the motion to refer the case precisely on the
ground of lack of jurisdiction, and the motion to resolve
the earlier motion. Finally, the trial court had not
rendered any decision, much less one adverse to
petitioners.
Second, petitioners cannot hold respondents in
estoppel for the latter are not themselves party to the
criminal action. In a criminal action, the State is the
plaintiff, for the commission of a crime is an offense
against the State. Thus, the complaint or information
filed in court is required to be brought in the name of
the "People of the Philippines." 58 Even then, the
doctrine of estoppel does not apply as against the
people in criminal prosecutions. 59Violations of the Anti-
Graft and Corrupt Practices Act, like attempted
murder, 60 is a public offense. Social and public interest
demand the punishment of the offender; hence,
criminal actions for public offenses can not be waived or
condoned, much less barred by the rules of estoppel. 61
The filing of the information in the Sandiganbayan did
not put petitioners in double jeopardy even though they
had already pleaded "not guilty" to the information
earlier filed in the RTC. The first jeopardy never
attached in the first place, the RTC not being not being a
court of competent jurisdiction. There can be no double
jeopardy where the accused entered a plea in a court
that had no jurisdiction. 62 The remedy of petitioners,
therefore, was not to move for the quashal of the
information pending in the Sandiganbayan on the
ground of double jeopardy. 63 Their remedy was to
move for the quashal of the information pending in
the RTC on the ground of lack of jurisdiction. 64
The contention that the filing of the information in the
Sandiganbayan violated the rule against duplicitous
informations is patently unmeritorious. That rule
presupposes that there is one complaint or information
charging not one offense, but two or more offenses.
Thus, Rule 110 of the Rules of Court states:
Sec. 13. Duplicity of offense. — A complaint or
information must charge but one offense, except only in
those cases in which existing laws prescribe a single
punishment for various offenses.
Non-compliance with this rule is a ground for quashing
the duplicitous complaint or information under Rule
117:
Sec. 3. Grounds. — The accused may move to quash the
complaint or information on any of the following
grounds:
xxx xxx xxx
(e) That more than one offense is charged except in
those cases in which existing laws prescribe a single
punishment for various offenses;
xxx xxx xxx
Here, petitioners are faced not with one
information charging more than one offense but
with more than one information charging one offense.
The Court does not find the prosecution guilty of forum-
shopping. Broadly speaking, forum shopping exists
when, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion (other than by appeal
or certiorari) in another, or when he institutes two or
more actions or proceedings grounded on the same
cause, on the gamble that one or the other court would
make a favorable disposition. 65 We discern no intent on
the part of the State, in filing two informations in two
different courts, to "gamble that one or the other court
would make a favorable disposition."
Obviously, respondents got their signals crossed. One
set of officials, after investigating a complaint filed by
the Vice-Mayor of San Pascual, Batangas charging
petitioners of overpricing, filed the information for
violation of Section 3(e) of R.A. No. 3019 in the RTC.
Another set of officials investigated another complaint
from the Concerned Citizens Group accusing petitioners
of, among others, overpricing the same project subject
of the previous complaint. Finding probable cause, the
second set of officials instituted the criminal action,
charging the same offense and alleging essentially the
same facts as the first, this time in the Sandiganbayan.
Later learning of the procedural faux pas, respondents
without undue delay asked the RTC to refer the case to
the Sandiganbayan.
WHEREFORE, the consolidated petitions are hereby
DISMISSED.
_____________________________________________
4. Orap vs Sandiganbayan
Tanodbayan Special Prosecutor Rodolfo B. Aquino filed
four informations before the Sandiganbayan charging
petitioner Vicente S. Orap Presiding Judge of the
Municipal Court of Mangatarem, Pangasinan, with
violation of Section 3(e) of Rep.Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act. The
gravamen of all these charges was to the effect that the
accused on different occasions unlawfully and
feloniously received and took various sums of money
from several persons in connection with a criminal
case pending before his sala.
Before his arraignment, petitioner filed a motion to
quash the informations on the ground that the officer
who signed the same had no authority to do so and
that, corollarily, the Sandiganbayan did not acquire
jurisdiction over the offenses charged. The respondent
court denied the motion to quash. Petitioner verbally
moved for the reconsideration of the order but the
relief sought was denied.
Hence, petitoner filed a petition for certiorari and
prohibition before the SC. It is the petitioner's position
that the Tanodbayan has no power to conduct
preliminary investigations, file informations and
prosecute criminal cases against judges and their
appurtenant judicial staff. He contended that under the
Section 9(a) of the Tanodbayan Decree, the courts,
judges and other appurtenant judicial staff, among
others, are beyond the reach of the Tanodbayan, and
that only administrative acts of agencies of the
government, whether or not criminal in character, are
within the powers of said official.
Issue:
Has the Tanodbayan the authority to conduct a
preliminary investigation of a complaint charging a
municipal judge and his clerk of court with violation of
Section 3(e) of Rep. Act No. 3019 and, upon a finding of
prima facie case, proceedto file the corresponding
information before the Sandiganbayan and prosecute
the same?
Held:
Yes. Petitioner’s argument overlooks the fact that under
the decree, the Tanodbayan functions not only as an
ombudsman, but as prosecutor as well.
As ombudsman, his investigatory powers are limited to
complaints initiated against officers and personnel of
administrative agencies, as defined in Section 9(a) of
the law. To that extent, we agree with the petitioner's
interpretation of the law that insofar as administrative
complaints are concerned, the courts, judges and their
appurtenant judicial staff are outside the Tanodbayan's
investigatory power. The reason for such exclusion is
quite evident: under Section 6, Article 10 of the
Constitution, it is the Supreme Court
that exercises administrative supervision over all courts
and their personnel and, therefore, is the proper forum
to which administrative complaints involving judges and
the court's personnel should be lodged.
As prosecutor, however, the authority of the
Tanodbayan is primary and without exceptions. His
powers are defined in Sections 17 and 19 of P.D. 1607,
as follows:
SEC. 17. Office of the Chief Special Prosecutor.—There
is hereby created in the Office of the Tanodbayan an
Office of the Chief Special Prosecutor composed of a
Chief Special Prosecutor, an Assistant Chief Special
Prosecutor, and nine (9) Special Prosecutors, who shall
have the same qualifications as provincial and city
fiscals and who shall be appointed by the President; ...
The Chief Special Prosecutor, the Assistant Chief Special
Prosecutor and the Special Prosecutors shall have the
exclusive authority to conduct preliminary investigation
of all cases cognizable, by the Sandiganbayan:
to file informations therefor and to direct and control
the prosecution of said cases therein Provided, however
that the Tanodbayan may upon recommendation of the
Chief Special Prosecutor, designate any fiscal, state
prosecutor or lawyer in the government service
to act as Special Prosecutor to assist in the investigation
and prosecution of all cases cognizable by the
Sandiganbayan who shall not receive any
additional compensation except such allowances, per
diems and travelling expenses as the Tanodbayan may
determine in accordance with existing laws, rules and
regulations.

SEC. 19. Prosecution of Public Personnel or Other
Person.—If the Tanodbayan has reason to believe that
any public official employee, or other person has acted
in a manner warranting criminal or disciplinary action
or proceedings, he shall cause him to be investigated
by the Office of the Chief Special Prosecutor who
shall file and prosecute the corresponding criminal or
administrative case before the Sandiganbayan or the
proper court or before the proper administrative
agency. In case of failure of justice, the Tanodbayan
shall make the appropriate recommendations to the
administrative agency concerned.
Section 17 of the Decree, in unequivocal term, confers
upon the Tanodbayan, through the Chief Special
Prosecutor and the Special Prosecutors, the exclusive
authority to "conduct preliminary investigation of all
cases cognizable by the Sandiganbayan,
to file informations therefor, and to direct and control
the prosecution of said cases therein." If, as petitioner
contends, judges, and other court personnel lie outside
the investigatory power of the Tanodbayan, then no
judge or court employee could ever be brought to
justice for crimes and offenses cognizable by the
Sandiganbayan, for lack of proper officer or entity
authorized to conduct the preliminary investigation on
complaints of such nature against them. This absurd
situation the law could never have intended,
considering that the Office of the Tanodbayan was
purposely created to "give effect to
the constitutionalright of the people to petition the
government for redress of grievances and to promote
higher standards of integrity and efficiency in the
government service."
____________________________________________
5. Buenaseda vs Flavier
In 1992, the NCMH Nurses Association (NCMH) filed a
case of graft and corruption against Dr. Brigida
Buenaseda and several other government officials of
the Department of Health (DOH). The Ombudsman
(then Conrado Vasquez), ordered the suspension
of Buenaseda et al. The suspension was carried on by
then DOH Secretary Juan Flavier, being the officer in
charge over Buenaseda et al. Buenaseda et al then filed
with the Supreme Court a petition for certiorari,
prohibition, and mandamus, questioning the suspension
order. NCMH submitted its Comment on the Petition
where they attached a Motion for Disbarment against
the lawyers of Buenaseda et al.
Allegedly, the lawyers of Buenaseda et al advised them
not to obey the suspension order, which is a lawful
order from a duly constituted authority. NCMH
maintains that such advice from the lawyers constitute
a violation against the Code of Professional
Responsibility.
The Solicitor General, commenting on the case, agreed
with Buenaseda’s lawyers as he maintained that all the
Ombudsman can do is to recommend suspensions not
impose them. The Sol-Gen based his argument on
Section 13 (3) of the 1987 Constitution which provides
that the Office of the Ombudsman shall have inter
alia the power, function, and duty to:
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.
ISSUES: Whether or not the Ombudsman has the power
to suspend government officials. Whether or not a
Motion for Disbarment may be filed in a special civil
action.
HELD: Yes, the Ombudsman may impose suspension
orders. The Supreme Court clarifies that what the
Ombudsman issued is an order of preventive
suspension pending the resolution of the case or
investigation thereof. It is not imposing suspension as a
penalty (not punitive suspension). What the
Constitution contemplates that the Ombudsman may
recommend are punitive suspensions.
Anent the issue of the Motion for Disbarment filed with
the Ombudsman, the same is not proper. It cannot be
filed in this special civil action which is confined to
questions of jurisdiction or abuse of discretion for the
purpose of relieving persons from the arbitrary acts of
judges and quasi-judicial officers. There is a set of
procedure for the discipline of members of the bar
separate and apart from the present special civil action.
However, the lawyers of Buenaseda were reminded not
be carried away in espousing their client’s cause. The
language of a lawyer, both oral or written, must be
respectful and restrained in keeping with the dignity of
the legal profession and with his behavioral attitude
toward his brethren in the profession.
____________________________________________
6. PDIC vs Casimiro
Facts:
Petitioner PDIC, through its duly-authorized agents,
filed a Joint-Affidavit charging private respondents Cu
(as the 85.99% owner of Bicol Development Bank, Inc.
(BDBI), Zate (as Chairman/President of BDBI), and Apelo
(as a former employee of the Banko Sentral ng Pilipinas
(BSP) who acted as Bank Officer-In-Charge that
examined BDBI’s books and records, of the crimes of
Direct Bribery and Corruption of Public Officials, as well
as violation of the Anti-Graft and Corrupt Practices Act.
It averred that after the BSP Monetary Board ordered
BDBI's closure, PDIC started to perform its functions as
statutory receiver, which includes, among others, the
control, management, and administration of BDBI as
well as investigating the causes of BDBI's closure. In the
course of the receivership, Gomez — a former Cashier,
Service Officer, and Treasurer of BDBI — came forward
and through her affidavit, reported the purported
scheme perpetrated by private respondents that
fraudulently concealed BDBI's true condition as a
banking entity.
Gomez's affidavit outlines such scheme as follows: (a)
Apelo would provide Cu an "advance warning" of any
impending surprise bank examinations on BDBI by BSP;
(b) upon receipt of the "advance warning," Cu would
then make the necessary steps to misrepresent BDBI's
status, such as instructing BDBI employees on how to
cover the possible findings/exceptions of the BSP
examiner on the books of BDBI, as well as infusing cash
into BDBI's vault in order to make it appear that the
cash listed in the books reflect the actual cash in vault,
and thereafter returning such cash to the source; (c) in
exchange for such "advance warnings," Cu and/or Zate
gave Apelo as "professional fees" the aggregate amount
of P140,000.00 by depositing the same to the latter's
bank account; and (d) to cover up such amounts given
to Apelo, Cu and/or Zate, instructed Gomez to initially
cover the unofficial and unbooked cash disbursements
in favor of Apelo by placing such amounts in BDBI's
books as "Other Cash I tems," and thereafter, regularize
and remove from BDBI 's books such disbursements by
including them in the other accounts of BDBI until they
were completely covered. To support such statements,
Gomez provided copies of deposit slips showing that
such amount was indeed deposited to Apelo's bank
account. She likewise asserted that in the course of her
employment at BDBI, she does not know of any official
or legitimate transactions that BDBI had with Apelo that
would warrant the disbursement of the aforesaid
amount in the latter's favor.
Cu denied having ordered or instructed Gomez to make
such deposits to Apelo's bank account. He pointed to
the lack of evidence to prove that Apelo was aware or
made aware of any alleged bank deposits made to her
bank account, thus, negating the charge of Direct
Bribery against her and Corruption of Public Officials
against him. For her part, Zate likewise denied the
allegations hurled against her, countering that Gomez's
statements should not be relied upon for being
unfounded. Apelo did not file any counter-affidavit
despite the Ombudsman's orders.
The Ombudsman’s Ruling
The Ombudsman dismissed the criminal complaint for
lack of probable cause, finding that while it may be said
that certain amounts were indeed deposited to Apelo's
bank account, there is no proof that Apelo subsequently
withdrew the same.
PDIC moved for reconsideration, which was denied. The
Ombudsman found Gomez's affidavit showing Apelo as
the source of the "advance warnings" received by Cu in
connection with the BSP examinations to be
inadmissible in evidence for being hearsay.
Issue:
Whether or not the Ombudsman gravely abused its
discretion in finding no probable cause to indict private
respondents of the crimes charged.
Ruling:
(Yes) The petition is meritorious.
At the outset, it must be stressed that the Court has
consistently refrained from interfering with the
discretion of the Ombudsman to determine the
existence of probable cause and to decide whether or
not an Information should be filed. Nonetheless, this
Court is not precluded from reviewing the
Ombudsman's action when there is a charge of grave
abuse of discretion. Grave abuse of discretion implies a
capricious and whimsical exercise of judgment merits of a party's defense or accusation, as well as the
tantamount to lack of jurisdiction. The Ombudsman's admissibility of testimonies and evidence, are better
exercise of power must have been done in an arbitrary ventilated during trial proper than at the preliminary
or despotic manner which must be so patent and gross investigation level.”
as to amount to an evasion of a positive duty or a virtual
The Court finds that the Ombudsman gravely abused its
refusal to perform the duty enjoined or to act at all in
discretion in dismissing the criminal complaint against
contemplation of law.19 The Court's pronouncement
private respondents for lack of probable cause, as will
in Ciron v. Gutierrez20 is instructive on this matter, to
be explained hereunder.
wit:
Apelo was accused of committing the crime of Direct
Bribery, which has the following elements: (a) that the
x x x this Court's consistent policy has been to maintain
accused is a public officer; (b) that he received directly
noninterference in the determination of the
or through another some gift or present, offer or
Ombudsman of the existence of probable cause,
promise; (c) that such gift, present or promise has been
provided there is no grave abuse in the exercise of
given in consideration of his commission of some crime,
such discretion. This observed policy is based not only
or any act not constituting a crime, or to refrain from
on respect for the investigatory and prosecutory
doing something which is his official duty to do; and (d)
powers granted by the Constitution to the Office of the
that the crime or act relates to the exercise of his
Ombudsman but upon practicality as well. Otherwise,
functions as a public officer.27 On the other hand, Cu
the functions of the Court will be seriously hampered by
and Zate were accused of committing the crime of
innumerable petitions assailing the dismissal of
Corruption of Public Officials, the elements of which are
investigatory proceedings conducted by the Office of
as follows: (a) that the offender makes offers or
the Ombudsman with regard to complaints filed before
promises, or gives gifts or presents to a public officer;
it, in much the same way that the courts would be
and (b) that the offers or promises are made or the gifts
extremely swamped with cases if they could be
or presents are given to a public officer under
compelled to review the exercise of discretion on the
circumstances that will make the public officer liable for
part of the fiscals or prosecuting attorneys each time
direct bribery or indirect bribery.28 In addition, all
they decide to file an information in court or dismiss a
private respondents were charged with violation of
complaint by a private complainant.
Section 3 (e) of RA 3019. The essential elements of such
Probable cause, for the purpose of filing a criminal crime are as follows: (a) that the accused must be a
information, has been defined as such facts as are public officer discharging administrative, judicial, or
sufficient to engender a well-founded belief that a official functions (or a private individual acting in
crime has been committed and that respondent is conspiracy with such public officers29); (b) that he acted
probably guilty thereof. It does not require an inquiry with manifest partiality, evident bad faith, or
into whether there is sufficient evidence to procure a inexcusable negligence; and (c) that his action caused
conviction. It is enough that it is believed that the act any undue injury to any party, including the
or omission complained of constitutes the offense government, or giving any private party unwarranted
charged. benefits, advantage, or preference in the discharge of
his functions.30
Verily, preliminary investigation is merely an
inquisitorial mode of discovering whether or not there
A review of the records of the case reveals that after
is reasonable basis to believe that a crime has been
BDBFs closure, PDIC started to perform its functions as
committed and that the person charged should be held
statutory receiver, which includes, among others, the
responsible for it. Being merely based on opinion and
control, management, and administration of BDBI as
belief, a finding of probable cause does not require an
well as investigating the causes of BDBI's closure.31 In
inquiry as to whether there is sufficient evidence to
the course of the receivership, Gomez — a former
secure a conviction. The presence or absence of the
Cashier, Service Officer, and Treasurer of BDBI - came
elements of the crime is evidentiary in nature and is a
forward and through her affidavit, reported the
matter of defense that may be passed upon after a full-
purported scheme perpetrated by private respondents
blown trial on the merits. Hence, "the validity and
that fraudulently concealed BDBFs true condition as a
banking entity. Gomez's affidavit outlines such scheme
as follows: (a) Apelo would provide Cu an "advance
warning" of any impending surprise bank examinations
on BDBI by BSP; (b) upon receipt of the "advance
warning," Cu would then make the necessary steps to
misrepresent BDBI's status, such as instructing BDBI
employees on how to cover the possible
findings/exceptions of the BSP examiner on the books
of BDBI, as well as infusing cash into BDBI's vault in
order to make it appear that the cash listed in the books
reflect the actual cash in vault, and thereafter returning
such cash to the source; (c) in exchange for such
"advance warnings," Cu and/or Zate gave Apelo as
"professional fees" the aggregate amount of
P140,000.00 by depositing the same to the latter's bank
account; and (d) to cover up such amounts given to
Apelo, Cu and/or Zate, instructed Gomez to initially
cover the unofficial and unbooked cash disbursements
in favor of Apelo by placing such amounts in BDBI's
books as "Other Cash Items," and thereafter, regularize
and remove from BDBI's books such disbursements by
including them in the other accounts of BDBI until they
were completely covered. To support such statements,
Gomez provided copies of deposit slips showing that
such amount was indeed deposited to Apelo's bank
account. She likewise asserted that in the course of her
employment at BDBI, she does not know of any official
or legitimate transactions that BDBI had with Apelo that
would warrant the disbursement of the aforesaid
amount in the latter's favor.
In view of such grave accusations against them, Cu and
Zate resorted to mere denials, while Apelo ignored the
complaint by not filing a counter-affidavit despite due
notice, thus, miserably failing to debunk the charges
hurled against them. Indubitably, the foregoing
establishes probable cause to believe that private
respondents may have indeed committed such acts
constituting the crimes charged against them. As such,
they must defend themselves in a full-blown trial on the
merits.
Finally, it was error on the part of the Ombudsman to
simply discredit Gomez's affidavit as inadmissible in
evidence for being hearsay. It is noteworthy to point
out that owing to the initiatory nature of preliminary
investigations, the technical rules of evidence should
not be applied in the course of its proceedings.32 In the
recent case of Estrada v. Ombudsman,33 the Court
declared that hearsay evidence is admissible in
determining probable cause in preliminary
investigations because such investigation is merely
preliminary, and does not finally adjudicate rights and
obligations of parties. Citing a case decided by the
Supreme Court of the United States, it was held that
probable cause can be established with hearsay
evidence, as long as there is substantial basis for
crediting the hearsay, viz.:
Justice Brion's pronouncement in Unilever that "the
determination of probable cause does not depend on
the validity or merits of a party's accusation or defense
or on the admissibility or veracity of testimonies
presented" correctly recognizes the doctrine in the
United States that the determination of probable cause
can rest partially, or even entirely, on hearsay
evidence, as long as the person making the hearsay
statement is credible.
In United States v. Ventresca, the United States
Supreme Court held:
While a warrant may issue only upon a finding of
"probable cause," this Court has long held that "the
term 'probable cause' ... means less than evidence
which would justify condemnation," x x x and that a
finding of "probable cause" may rest upon evidence
which is not legally competent in a criminal trial, x x x As
the Court stated in Brinegar v. United States x x x,
"There is a large difference between two things to be
proved (guilt and probable cause), as well as between
the tribunals which determine them, and therefore a
like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the
bases for issuance of the warrant "so long as there ...
[is] a substantial basis for crediting the hearsay." x x x
And, in Aguilar, we recognized that "an affidavit may be
based on hearsay information and need not reflect the
direct personal observations of the affiant," so long as
the magistrate is "informed of some of the underlying
circumstances" supporting the affiant's conclusions
and his belief that any informant involved "whose
identity need not be disclosed..." was "credible" or his
information "reliable." x x x.
Thus, probable cause can be established with hearsay
evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is admissible
in determining probable cause in a preliminary
investigation because such investigation is merely
preliminary, and does not finally adjudicate rights and
obligations of parties.
In sum, the Court is convinced that there is probable
cause to indict private respondents of the crimes
charged against them. Hence, the Ombudsman
committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it ordered the dismissal of
the criminal complaint against private respondents.
WHEREFORE, the petition is GRANTED. The Resolution
dated January 24, 2012 and the Order dated October
29, 2012 of the Office of the Ombudsman in OMB-C-C-
10-0294-G are hereby REVERSED and SET ASIDE.
Accordingly, the Office of the Ombudsman
is DIRECTED to issue the proper resolution in order to
indict private respondents Fidel C. Cu, Carmelita B. Zate,
and Mary Lou S. Apelo in accordance with this Decision.
_____________________________________________
7. Amit vs COA
FACTS: The Commission on Audit (COA) conducted a
special audit on the Multi-Purpose Drying Pavement
(MPDP) project conducted by the Department of
Agriculture (DA). COA discovered that eleven (11)
government employees were allegedly responsible for
ghost projects and misappropriation of public funds.
Thus, COA administratively charged them before the
Ombudsman including petitioner Efren Amit who was a
Senior Agriculturist of the DA whose functions include
the approval of MPDP project documents.
The Ombudsman found all the officials so charged guilty
of grave misconduct and dishonesty for conspiring in
the falsification of documents to facilitate the
disbursement and misappropriation of the funds
intended for the MPDP projects. In some of the
vouchers, the signatures of certain officials were forged.
It was also discovered that the vouchers and checks for
the MPDP project were released without proper
authorization to certain beneficiaries. The Ombudsman
concluded that the employees conspired with one
another to facilitate the disbursement and
misappropriation of funds intended for the MPDP
project.
Amit appealed to the CA. The CA denied the petition
and ruled that Amits approval of the documents in
question is not merely ministerial. Amit moved to
reconsider the denial of his petition but the CA denied
the motion. Hence, the present petition.
The Petition
Amit argues in his petition that he cannot be held liable
for falsification because:
1. the issue slips, which were ordinarily used in the
requisition and procurement of supplies and materials
by the DA RFU 6, were unnecessary in the
implementation of the MPDP projects since the DA
merely reimburses the actual expenses incurred by the
farmers’ organizations in the construction of the MPDP;
2. due to the error in releasing funds under supplies and
materials, the issue slips were required by the
Accounting Section for the purpose of dropping the
entry of inventory for supplies and materials in the
Monthly Report of Supplies and Materials which he
followed because he believed that the Accounting
Section was better equipped to determine the
requirements for the disbursement of funds;
3. in signing the issue slips, neither did he make it
appear that the construction materials listed therein
have been issued and delivered to the farmers’
organizations since he had no participation in the
procurement, canvass, delivery, receipt and acceptance
of materials, nor did he certify on the delivery and
acceptance of the materials, which functions pertained
to the Reports of Inspection and the Certificate of
Acceptance by the farmers’ organizations concerned;
and
4. the issue slips were not intended to facilitate the
release of funds because under the memorandum of
agreement, full payment shall be released upon the
recipient’s submission of official receipts for the actual
expenses incurred in the construction of the MPDP,
subject to the issuance by the DA of the Certificate of
Inspection on the full completion of the projects, which
he had no participation in the issuance thereof.17
He also argues that there was no conspiracy between
him and the other officials in the administrative case to
falsify documents to facilitate the disbursement and
release of public funds and/or to misappropriate the
funds.18
The Court’s Ruling
The petition lacks merit.
First, Amit’s acts did not result from a mere failure to
exercise the necessary prudence in complying with the
proper procedure. The performance of the complained
acts was discretionary on his part. Amit’s acts were
done willfully and deliberately. They were done without
regard to the high positions that he occupied, which
impose upon him greater responsibility, and obliged
him to be more circumspect in his actions or in the
discharge of his official duties.
Amit, for instance, inexplicably signed the issue slips
despite his alleged knowledge that these documents
were unnecessary. With Amit’s signing of the
documents, however, the immediate release of the
funds was facilitated. This indicates shortsightedness on
the part of Amit which is so gross that it cannot be
considered a result of indifference or carelessness. Amit
simply failed to conduct himself in the manner expected
of an occupant of a high office. In other words, he failed
to act in accordance with the demands of the
responsibility that attaches to the office he was
occupying.
Second, the Ombudsman’s finding of conspiracy reveals
the crucial role which Amit played in the commission of
fraud with other officials. Amit’s acts were one of the
more, if not the most, indispensable, final, and
operative acts that ultimately led to the consummation
of the fraud. No disbursement or release of government
funds could happen without Amit’s imprimatur. Amit’s
participatory acts were, in other words, of a degree that
their absence could have prevented the completion of
the acts complained of.
Amit’s role in the committed irregularities shows his
concurrence – although based on circumstantial, not
direct, evidence – with the other officials’ objective to
defraud the government. The irregularities will not see
their fruition if Amit and the other officials involved in
the fraud did not consent to its implementation by
making it appear that there were valid requisitions,
deliveries, inspections, pre-auditing and approval of the
vouchers and checks paid to the contractors/suppliers.
These acts pointed to one (1) criminal intent – with one
participant performing a part of the transaction and the
others performing other parts of the same transaction
to complete the whole scheme, with a view of attaining
the object which they were pursuing.19
In other words, there was the required concurrence of
wills supporting the finding of conspiracy, made more
pronounced in the case of Amit because of his positions
and peculiarly important role in the completion of the
acts.
Third, Amit’s defense – the alleged reliance on the acts
of his subordinates in good faith – is simply
unacceptable.
Public office is a public trust and public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice
and lead modest lives.20 This high constitutional
standard of conduct is not intended to be mere
rhetoric; those in the public service are enjoined to fully
comply with this standard or run the risk of facing
administrative sanctions ranging from reprimand to the
extreme penalty of dismissal from the service.
As such, Amit has the duty to supervise his subordinates
– he must see to it that his subordinates have
performed their functions in accordance with the law.
We cannot allow him to simply interpose this defense,
as he is precisely duty-bound to check whether these
acts are regular, lawful and valid, and his full reliance on
the acts of his subordinates is antithetical to the duties
imposed by his position on them. The excuse or defense
is totally unacceptable, too, given that the transaction
relates to disbursement of public funds, over which
great responsibility attaches.
Fourth, Amit did not wholly rely on the acts of his
subordinates. As earlier mentioned, he performed
functions using independent judgment. Amit signed the
issue slips despite the absence of some of the required
documents for the release of government funds for the
MPDP projects. By his admission too, Amit voluntarily
agreed to a system, per the Accounting Division’s
prodding, that purportedly shows disbursement of
funds for supplies and materials, when in truth and in
fact, the disbursement is actually for reimbursement of
advances by recipient farmers’ organizations.
Viewed in these lights, the Court of Appeals committed
no reversible error of law in affirming the Ombudsman’s
decision. "Misconduct is a transgression of some
established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a
public officer. As differentiated from simple
misconduct, in grave misconduct, the elements of
corruption, clear intent to violate the law or flagrant
disregard of established rule, must be
manifest."21"Corruption as an element of grave
misconduct consists in the official’s unlawful and
wrongful use of his station or character [reputation] to
procure some benefit for himself or for another person,
contrary to duty and the rights of others."22
In Manuel v. Judge Calimag, Jr.,23 we held:
By uniform legal definition, it is a misconduct such as
affects his performance of his duties as an officer and
not such only as affects his character as a private
individual. In such cases, it has been said at all times, it
is necessary to separate the character of the man from
the character of the officer x x x It is settled that
misconduct, misfeasance, or malfeasance warranting
removal from office of an officer must have direct
relation to and be connected with the performance of
official duties amounting either to maladministration or
willful, intentional neglect and failure to discharge the
duties of the office.24 (emphasis and italics ours)
We declared in Office of the Ombudsman v.
Apolonio25 that "if a nexus between the public officer’s
acts and functions is established, such act is properly
referred to as misconduct."
Amit's acts were well within the scope of his functions.
There is no doubt that his inability to live up to the
standards so imposed on him in the performance of his
duties is misconduct. In this case, the misconduct
cannot be considered simple misconduct; it is grave
misconduct, considering the presence of the qualifying
elements of corrupt motive and flagrant disregard of
the rules taken from a collective consideration of the
circumstances of the case.
WHEREFORE, premises considered, we DENY the
petition for lack of merit.
_____________________________________________
8. Seville vs COA
This case provides what it takes to make a government
official or employee liable for ghost projects.
The Facts and the Case
The Commission on Audit (COA) Regional Office VI
administratively charged 11 officials and employees of
the Department of Agriculture (DA) Regional Field Unit
in Iloilo City, including petitioner Sonia V. Seville, an
Assistant Regional Director for Fisheries, before the
Office of the Ombudsman-Visayas.
The complaint alleged that, as a result of a special
audit1 of the Post Harvest Component of the Grains
Production Enhancement Program of the DA,
particularly the construction of Multi-Purpose Drying
Pavements (MPDPs) projects in Iloilo from January 1,
1995 to June 30, 1999, it was discovered that she signed
a ghost MPDP project in Sto. Rosario, Ajuy, Iloilo, out of
the 120 such projects that were subject of the audit.
She signed the disbursement voucher, as required by
Memorandum Order 104, Series of 1998, in view of the
absence of the Regional Director and the Assistant
Regional Director for Administration. But she claimed
that she acted in good faith, merely relying on the
completeness and genuineness of the supporting
documents that were shown to her. She had no prior
knowledge of the MPDPs, which catered to rice
production, since she was an Assistant Regional Director
for Fisheries. She admitted, however, not conducting an
actual physical inspection of the project since she
believed that it was not her responsibility to do so.
The investigators filed a separate criminal complaint
against petitioner Seville for violation of the anti-graft
and corrupt practices act before the Office of the
Ombudsman to determine if she had any criminal
liability for her acts. Subsequently, the investigation
resulted in her exoneration, absent any proof that she
took part in a conspiracy to defraud the government.
In its Decision dated July 9, 2004,2 however, the Office
of Deputy Ombudsman for Visayas found those charged
in connection with the ghost MPDPs, including
petitioner, guilty of Grave Misconduct and Gross
Dishonesty, resulting in their dismissal from
government service with forfeiture of benefits and
disqualification from holding public office.
Petitioner Seville filed a petition for review of the
Deputy Ombudsman’s decision before the Court of
Appeals (CA) in CA-G.R. CEB-SP 01492. On July 20, 2006
the CA rendered a decision,3 holding that her failure to
verify the correctness and sufficiency of the documents
presented to her for signing led to the unrequited
disbursement of public funds. She filed a motion for
reconsideration but the CA denied the same, hence, this
petition for review.
The Issue Presented
The sole issue in this case is whether or not the CA
correctly affirmed the Ombudsman’s decision that
found petitioner liable for grave misconduct and gross
dishonesty for signing the disbursement voucher for the
particular ghost MPDP in Sto. Rosario, Ajuy, Iloilo.
The Court’s Rulings
In grave misconduct, the elements of corruption, clear
intent to violate the law, or flagrant disregard of an
established rule must be evident.4 Misconduct, in the
administrative sense, is a transgression of some
established and definite rule of action. On the other
hand, dishonesty is intentionally making a false
statement in any material fact or the disposition to lie,
cheat, deceive or defraud.5 Both are considered grave
offenses for which the penalty of dismissal is meted
even for first time offenders.6
Here, the COA charged petitioner Seville
administratively because the government released
funds for that particular ghost project in Sto. Rosario,
Ajuy, Iloilo. Seville anchors her innocence on good faith.
Good faith implies honest intent, free from any
knowledge of circumstances that ought to have
prompted an individual to undertake an inquiry.
While Seville merely substituted for the absent Regional
Director at that time, it is not an excuse for lightly
shirking from the latter’s duties and responsibilities. It
was her responsibility when she signed that
disbursement voucher for the Regional Director to
verify the accuracy and completeness of the supporting
documents presented to her. In the discharge of duties,
a public officer must use prudence, caution, and
attention which careful persons use in the management
of their affairs. Public servants must show at all times
utmost dedication to duty.
The Court finds, however, that Seville cannot be held
liable for grave misconduct. Corruption, as an element
of grave misconduct, consists in the official or
employee’s act of unlawfully or wrongfully using his
position to gain benefit for one’s self.7 Here, the Court is
not convinced that under the circumstances then
present, she had depraved motives.
Seville signed on the rare happenstance that both the
Regional Director and the Assistant Regional Director
for Administration were absent. That both signatories
were absent when the Sto. Rosario project was
presented to her for signature was a coincidence that
cannot be imputed to her for she could not have
orchestrated that for her gain, absent evidence to the
contrary. She did not volunteer for the position nor is
there proof that she lobbied for the OIC designation, it
being provided by a DA internal regulation.8 She is but
liable for the lesser offense of simple misconduct since
she should have exercised the necessary prudence to
ensure that the proper procedure was complied with in
the release of government funds.9
The penalty for simple misconduct is suspension for one
month and one day to six months for the first
offense.10There being no aggravating or mitigating
circumstances, Section 54(b) of the Uniform Rules on
Administrative Cases in the Civil Service provides that
the medium of the penalty should be imposed.
As for the offense of gross dishonesty, the Court also
clears petitioner from liability.1âwphi1 Her participation
in the release of funds is brought upon by her OIC
designation and not spurred by corrupt intent. A post-
harvest facility such as MPDP is related to rice farming
and not within her knowledge as Assistant Director for
Fisheries. To a certain extent, leniency can be afforded
for her reliance on the credibility and expertise of her
co-signatories namely the Chief of Crops Sector Division
and Chief of Finance and Administrative Division. Her
error in judgment cannot be equated with gross
dishonesty. The evidence does not prove conscious
distortion of the truth or even an inclination to it.
WHEREFORE, the Court REVERSES and SETS ASIDE the
decision of the Court of Appeals in CA-G.R. CEB-SP
01492 dated July 20, 2006. In its place, the Court FINDS
petitioner Sonia V. Seville liable for SIMPLE
MISCONDUCT and IMPOSES on her the penalty of three
months suspension without pay in accordance with
Section 54(b) of the
Uniform Rules on Administrative Cases in the Civil
Service.11
SO ORDERED.
____________________________________________
9. Gutierrez vs House of Representatives Committee
on Justice
G.R. No. 193459 February 15, 2011
GUTIERREZ vs. THE HOUSE OF REPRESENTATIVES
COMMITTEE ON JUSTICE
Facts:
1. On 22 July 2010, Baraquel, et al. filed an
impeachment complaint (First Complaint) against
Ombudsman Ma. Merceditas N. Gutierrez (petitioner)
based on betrayal of public trust and culpable
violation of the Constitution.
2. On 3 August 2010, a Second Complaint was filed by
Reyes, et al. against the same respondent also based
on betrayal of public trust and culpable violation of the
Constitution.
3. On 11 August 2010, the two complaints were referred
by the House Plenary to the Committee on Justice at
the same time.
4. On 1 September 2010, the Committee on Justice
found the First and Second Complaints sufficient in
form. On 7 September 2010, the Committee on
Justice, found the First and Second Complaints were
sufficient in form.
5. On 13 September 2010, petitioner filed a petition for
certiorari and prohibition before the Supreme Court
seeking to enjoin the Committee on Justice from
proceeding with the impeachment proceedings. The
petition prayed for a temporary restraining order.
Petitioner: She invokes the Court’s expanded certiorari
jurisdiction to "determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government."
Public Respondent: The petition is premature and not yet
ripe for adjudication since petitioner has at her
disposal a plain, speedy and adequate remedy in the
course of the proceedings before public respondent.
Public respondent argues that when petitioner filed
the present petition on September 13, 2010, it had not
gone beyond the determination of the sufficiency of
form and substance of the two complaints. Hence,
certiorari is unavailing.
6. The following day, during the en banc morning
session of 14 September 2010, the majority of the
Court voted to issue a status quo ante order
suspending the impeachment proceedings against
petitioner. (Note: In urgent cases, it is a matter of
practice for the Court that all the Justices should have
been given time, at least an hour or two, to read the
petition before voting on the issuance of the status
quo ante order. Unfortunately, this was not done.)
7. Section 3(5), Article XI of the 1987 Constitution
provides that "no impeachment proceedings shall be
initiated against the same official more than once
within a period of one year."
Issue #1: Does the Supreme Court have the power to
determine whether public respondent committed a
violation of the Constitution in the exercise of its discretion
relating to impeachment proceeding?
Held: YES, under the doctrine of expanded judicial
review. The Constitution did not intend to leave the matter
of impeachment to the sole discretion of Congress.
Instead, it provided for certain well-defined limits, or in the
language of Baker v. Carr,"judicially discoverable
standards" for determining the validity of the exercise of
such discretion, through the power of judicial review.
There exists no constitutional basis for the contention that
the exercise of judicial review over impeachment
proceedings would upset the system of checks and
balances. Verily, the Constitution is to be interpreted as a
whole and "one section is not to be allowed to defeat
another." Both are integral components of the calibrated
system of independence and interdependence that
insures that no branch of government act beyond the
powers assigned to it by the Constitution.
Indubitably, the Court is not asserting its ascendancy over
the Legislature in this instance, but simply upholding the
supremacy of the Constitution as the repository of the
sovereign will.
Issue #2: Is the petition premature and not yet ripe for
adjudication?
Held: NO. In the present petition, there is no doubt that
questions on the validity of the simultaneous referral of
the two complaints and on the need to publish as a mode
of promulgating the Rules of Procedure in Impeachment
Proceedings of the House (Impeachment Rules) present
constitutional vagaries which call for immediate
interpretation.
The unusual act of simultaneously referring to public
respondent two impeachment complaints presents a
novel situation to invoke judicial power. Petitioner cannot
thus be considered to have acted prematurely when she
took the cue from the constitutional limitation that only one
impeachment proceeding should be initiated against an
impeachable officer within a period of one year.
Issue #3: When is an impeachment complaint deemed
initiated?
Held: There are two components of the act of initiating the
complaint: the filing of the impeachment complaint
AND the referral by the House Plenary to the Committee
on Justice. Once an impeachment complaint has been
initiated (meaning, filed and initiated), another
impeachment complaint may not be filed against the
same official within a one year period.
Issue #4: Do the Impeachment Rules provide for
comprehensible standards in determining the sufficiency
of form and substance?
Held: YES. Contrary to petitioner’ contention, the
Impeachment Rules are clear in echoing the constitutional
requirements and providing that there must be a "verified
complaint or resolution," and that the substance
requirement is met if there is "a recital of facts constituting
the offense charged and determinative of the jurisdiction
of the committee.
In fact, it is only in the Impeachment Rules where a
determination of sufficiency of form and substance of an
impeachment complaint is made necessary. This
requirement is not explicitly found in the Constitution
which merely requires a "hearing." ( Section 3[2], Article
XI). In the discharge of its constitutional duty, the House
deemed that a finding of sufficiency of form and
substance in an impeachment complaint is vital "to
effectively carry out" the impeachment process, hence,
such additional requirement in the Impeachment Rules.
Issue #5: May the Supreme Court look into the narration
of facts constitutive of the offenses vis-à-vis petitioner’s
submissions disclaiming the allegations in the
complaints?
Held: NO. This issue would "require the Court to make a
determination of what constitutes an impeachable
offense. Such a determination is a purely political
question which the Constitution has left to the sound
discretion of the legislature (Francisco vs. House of
Representatives.)
Issue #6: Was petitioner denied of due process, because
of the delay in the publication of the Impeachment Rules?
Held: NO. The Supreme Court discussed the difference
between publication and promulgation.
To recall, days after the 15th Congress opened on July
26, 2010 or on August 3, 2010, public respondent
provisionally adopted the Impeachment Rules of the 14th
Congress and thereafter published on September 2, 2010
its Impeachment Rules, admittedly substantially identical
with that of the 14th Congress, in two newspapers of
general circulation.
Citing Tañada v. Tuvera, petitioner contends that she was
deprived of due process since the Impeachment Rules
was published only on September 2, 2010 a day after
public respondent ruled on the sufficiency of form of the
complaints. She likewise tacks her contention on Section
3(8), Article XI of the Constitution which directs that
"Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section."
Public respondent counters that "promulgation" in this
case refers to "the publication of rules in any medium of
information, not necessarily in the Official Gazette or
newspaper of general circulation."
While "promulgation" would seem synonymous to
"publication," there is a statutory difference in their usage.
The Constitution notably uses the word "promulgate" 12
times. A number of those instances involves the
promulgation of various rules, reports and issuances
emanating from Congress, the Supreme Court, the Office
of the Ombudsman as well as other constitutional offices.
To appreciate the statutory difference in the usage of the
terms "promulgate" and "publish," the case of the
Judiciary is in point. In promulgating rules concerning the
protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts, the
Supreme Court has invariably required the publication of
these rules for their effectivity. As far as promulgation of
judgments is concerned, however, PROMULGATION
means "the delivery of the decision to the clerk of
court for filing and publication.
Promulgation must thus be used in the context in which it
is generally understood—that is, to make known. Since
the Constitutional Commission did not restrict
"promulgation" to "publication," the former should be
understood to have been used in its general sense. It is
within the discretion of Congress to determine on how to
promulgate its Impeachment Rules, in much the same
way that the Judiciary is permitted to determine that to
promulgate a decision means to deliver the decision to the
clerk of court for filing and publication. It is not for the
Supreme Court to tell a co-equal branch of government
how to promulgate when the Constitution itself has not
prescribed a specific method of promulgation. The Court
is in no position to dictate a mode of promulgation beyond
the dictates of the Constitution.
Inquiries in aid of legislation under Section 21, Article VI
of the Constitution is the sole instance in the Constitution
where there is a categorical directive to duly publish a
set of rules of procedure. (Neri vs. Senate)
Even assuming arguendo that publication is required, lack
of it does not nullify the proceedings taken prior to the
effectivity of the Impeachment Rules which faithfully
comply with the relevant self-executing provisions of the
Constitution. Otherwise, in cases where impeachment
complaints are filed at the start of each Congress, the
mandated periods under Section 3, Article XI of the
Constitution would already run or even lapse while
awaiting the expiration of the 15-day period of publication
prior to the effectivity of the Impeachment Rules. In effect,
the House would already violate the Constitution for
its inaction on the impeachment complaints pending
the completion of the publication requirement. (Just
like what happened in this case, where the complaint was
filed even before the 15th Congress open its first session)
Given that the Constitution itself states that any
promulgation of the rules on impeachment is aimed at
"effectively carry[ing] out the purpose" of impeachment
proceedings, the Court finds no grave abuse of discretion
when the House deemed it proper to provisionally adopt
the Rules on Impeachment of the 14th Congress, to meet
the exigency in such situation of early filing and in keeping
with the "effective" implementation of the "purpose" of the
impeachment provisions. In other words, the provisional
adoption of the previous Congress’ Impeachment Rules
is within the power of the House to promulgate its rules on
impeachment to effectively carry out the avowed purpose.
Moreover, the rules on impeachment, as contemplated by
the framers of the Constitution, merely aid or supplement
the procedural aspects of impeachment. Being
procedural in nature, they may be given retroactive
application to pending actions. The retroactive application
of procedural laws does not violate any right of a person
who may feel that he is adversely affected, nor is it
constitutionally objectionable. The reason for this is that,
as a general rule, no vested right may attach to, nor arise
from, procedural laws." In the present case, petitioner
fails to allege any impairment of vested rights.
It bears stressing that, unlike the process of inquiry in aid
of legislation where the rights of witnesses are involved,
impeachment is primarily for the protection of the people
as a body politic, and not for the punishment of the
offender.
Issue #7: When do we reckon the start of the one-year
ban?
Petitioner contends that it is reckoned from the filing of the
first impeachment complaint against her on July 22, 2010
or four days before the opening on July 26, 2010 of the
15th Congress. She posits that within one year from July
22, 2010, no second impeachment complaint may be
accepted and referred to public respondent.
Held: Francisco doctrine states that the term "initiate"
means to file the complaint and referral of the complaint
to the Committee on Justice. Once an impeachment
complaint has been initiated, another impeachment
complaint may not be filed against the same official within
a one year period. Therefore, the one-year period ban is
reckoned not from the filing of the first complaint, but on
the date it is referred to the House Committee on Justice.
Petitioner submits that referral could not be the reckoning
point of initiation because "something prior to that had
already been done.” This is wrong. Following petitioner’s
line of reasoning, the verification of the complaint or the
endorsement by a member of the House – steps
done prior to the filing – would already initiate the
impeachment proceedings.
Issue #8: Does an impeachment complaint need to
allege only one impeachable offense?
Petitioner argues that public respondent gravely abused
its discretion when it disregarded its own Impeachment
Rules, which provides that "the Rules
of Criminal Procedure under the Rules of Court shall, as
far as practicable, apply to impeachment proceedings
before the House." Petitioner invokes the application of
Section 13, Rule 110 of the Rules on Criminal Procedure
on one offense per complaint rule. To petitioner, the two
impeachment complaints are insufficient in form and
substance since each charges her with both culpable
violation of the Constitution and betrayal of public trust.
Petitioner adds that heaping two or more charges in one
complaint will confuse her in preparing her defense;
expose her to the grave dangers of the highly political
nature of the impeachment process; constitute a
whimsical disregard of certain rules; impair her
performance of official functions as well as that of the
House; and prevent public respondent from completing its
report within the deadline.
Public respondent counters that there is no requirement
in the Constitution that an impeachment complaint must
charge only one offense, and the nature of impeachable
offenses precludes the application of the above-said Rule
on Criminal Procedure since the broad terms cannot be
defined with the same precision required in defining
crimes. It adds that the determination of the grounds for
impeachment is an exercise of political judgment, which
issue respondent-intervenor also considers as non-
justiciable, and to which the Baraquel group adds that
impeachment is a political process and not a criminal
prosecution, during which criminal prosecution stage the
complaint or information referred thereto and cited by
petitioner, unlike an impeachment complaint, must
already be in the name of the People of the Philippines.
Held: The Constitution allows the indictment for multiple
impeachment offenses, with each charge representing an
article of impeachment, assembled in one set known as
the "Articles of Impeachment." It, therefore, follows that
an impeachment complaint need not allege only one
impeachable offense.
Petitioner’s claim deserves scant consideration.
Without going into the effectiveness of the suppletory
application of the Rules on Criminal Procedure in carrying
out the relevant constitutional provisions, which
prerogative the Constitution vests on Congress, and
without delving into the practicability of the application of
the one offense per complaint rule, the initial
determination of which must be made by the
House93 which has yet to pass upon the question, the
Court finds that petitioner’s invocation of that particular
rule of Criminal Procedure does not lie. Suffice it to state
that the Constitution allows the indictment for multiple
impeachment offenses, with each charge representing an
article of impeachment, assembled in one set known as
the "Articles of Impeachment."94 It, therefore, follows that
an impeachment complaint need not allege only one
impeachable offense.
The second procedural matter deals with the rule on
consolidation. In rejecting a consolidation, petitioner
maintains that the Constitution allows only one
impeachment complaint against her within one year.
Records show that public respondent disavowed any
immediate need to consolidate. Its chairperson Rep.
Tupas stated that "[c]onsolidation depends on the
Committee whether to consolidate[; c]onsolidation may
come today or may come later on after determination of
the sufficiency in form and substance," and that "for
purposes of consolidation, the Committee will decide
when is the time to consolidate[, a]nd if, indeed, we need
to consolidate."95 Petitioner’s petition, in fact, initially
describes the consolidation as merely "contemplated."96
Since public respondent, whether motu proprio or upon
motion, did not yet order a consolidation, the Court will not
venture to make a determination on this matter, as it
would be premature, conjectural or anticipatory. 97
Even if the Court assumes petitioner’s change of stance
that the two impeachment complaints
were deemedconsolidated,98 her claim that consolidation
is a legal anomaly fails. Petitioner’s theory obviously
springs from her "proceeding = complaint" equation which
the Court already brushed aside.
_____________________________________________
10. Bolastig vs Sandiganbayan
This is a petition for certiorari to set aside the
resolution, dated March 18, 1993, of the
Sandiganbayan, granting the motion of the Special
Prosecution Officer to suspend the accused from
office pendente lite and the resolution, dated March 29,
1993, denying reconsideration of the first resolution.
Petitioner Antonio M. Bolastig is governor of Samar. On
August 31, 1989, an information was filed against him
and two others for alleged overpricing of 100 reams of
onion skin paper in violation of the Anti-Graft and
Corrupt Practices Act (Republic Act No. 3019). The
Information alleged:
That on or about June 24, 1986, in the Municipality of
Catbalogan, Samar, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused ANTONIO M. BOLASTIG, PEDRO ASON and
PRUDENCIO MACABENTA, all public officers, duly
appointed and qualified as such, being the OIC
Governor, Provincial Treasurer and Property Officer
respectively, all of the Province of Samar, and being
members of Bids and Awards Committee responsible
for the purchase of office supplies for the Provincial
Government of Samar and while in the performance of
their respective positions, confederating and mutually
helping one another and through manifest partiality and
evident bad faith, did then and there wilfully and
unlawfully enter into a purchase contract with
REYNALDO ESPARAGUERRA, a private citizen, for the
purchase of certain office supplies, namely: one
hundred (100) reams of Onion Skin size 11" x 17" at a
unit price of Five Hundred Fifty pesos (P550.00) or a
total price of Fifty-Five Thousand Pesos (P55,000.00),
which contract was manifestly and grossly
disadvantageous to the government as the prevailing
unit price for said item was only Fifty-Five Pesos
(P55.00) or a total price of Five Thousand Five Hundred
Pesos (P5,500.00), thereby causing undue injury to the
government in the total amount of Forty-Nine
Thousand Five Hundred Pesos (P49,500.00).
CONTRARY TO LAW.
Petitioner was arraigned on January 5, 1993,
whereupon he entered a plea of "not guilty."
On January 25, 1993, Special Prosecution Officer III
Wilfredo Orencia moved for petitioner's suspension,
citing sec. 13 of Republic Act No. 3019 which provides in
part:
Sec. 13. Suspension and loss of benefits. — Any
incumbent public officer against whom any criminal
prosecution under a valid information under this Act or
under Title 7, Book II of the Revised Penal Code or for
any offense involving fraud upon government or public
funds or property, whether as a simple or as a complex
offense and in whatever stage of execution and mode
of participation, is pending in court, shall be suspended
from office.
Petitioner opposed the motion, arguing inter alia that:
2. Upon a bare invocation of the foregoing provision,
the prosecution would have this Honorable Court issue
an Order suspending the accused, as if suspension of a
public officer is a mindless and meaningless exercise,
and is imposed without regard to the spirit and intent of
the law upon which it is based.
3. Indeed, it cannot be simply assumed that laws are
enacted and followed without a particular purpose to be
served, especially when a mechanical application shall
injure not only the public official concerned, but the
entire electorate as well.1
The Sandiganbayan rejected petitioner's argument and
ordered the suspension of petitioner from office for a
period of 90 days. It held that preventive suspension is
mandatory under sec. 13, of Rep. Act No. 3019,
pursuant to which all that is required is for the court to
make a finding that the accused stands charged under a
valid information "for any of the above-described
crimes for the purpose of granting or denying the
sought for suspension."2
Implementation of the resolution was held in abeyance
to allow petitioner to file a motion for reconsideration,
which the Sandiganbayan, however, eventually denied
on March 29, 1993.
Hence, this petition. It is contended that the
Sandiganbayan committed a grave abuse of its
discretion in issuing its resolution
(a) despite the failure of the prosecution to show any
public interest to be served, or injury to be prevented,
or any other compelling factual circumstance which
justifies the preventive suspension of petitioner; and
(b) despite the injury not only upon petitioner but also
upon the people of Samar whose political rights are
trenched upon by the suspension for no valid reason of
their duly elected Governor.
To the Solicitor General's contention that upon the filing
of a valid information suspension pendente lite is
mandatory as held in several decisions of this
Court,3 petitioner replies that, while the Sandiganbayan
has the power to order preventive suspension, there is
a "need [for the Sandiganbayan] to go further, beyond
the filing of the information, to a determination of the
necessity of the preventive suspension in accordance
with the spirit and intent of the Anti-Graft Law."
Petitioner explains:
In other words, when the Anti-Graft Law gave the
courts the authority to order the preventive suspension
of the accused, it never intended to impose a mindless
and meaningless exercise. The exercise of such
authority must always be within the confines of the
legislative intent, for to go beyond it would be to
exceed the bounds of the law. Preventive suspension
should therefore be ordered only when the legislative
purpose is achieved, that is, when "the suspension
order . . . prevent(s) the accused from using his office to
influence potential witnesses or tamper with records
which may be vital in the prosecution of the case
against him." Corollarily, when the legislative purpose is
not achieved, preventive suspension is improper and
should not be decreed."4
The petitioner's contention has no merit. It is now
settled that sec. 13 of Republic Act No. 3019 makes it
mandatory for the Sandiganbayan to suspend any public
officer against whom a valid information charging
violation of that law, Book II, Title 7 of the Revised Penal
Code, or any offense involving fraud upon government
or public funds or property is filed.5 The court trying a
case has neither discretion nor duty to determine
whether preventive suspension is required to prevent
the accused from using his office to intimidate
witnesses or frustrate his prosecution or continue
committing malfeasance in office. The presumption is
that unless the accused is suspended he may frustrate
his prosecution or commit further acts of malfeasance
or do both, in the same way that upon a finding that
there is probable cause to believe that a crime has been
committed and that the accused is probably guilty
thereof, the law requires the judge to issue a warrant
for the arrest of the accused. The law does not require
the court to determine whether the accused is likely to
escape or evade the jurisdiction of the court.
It is indeed true that in some of our decisions6 the
expression "the maximum period of ninety (90) days" is
used. But that is only for the purpose of emphasizing
that the preventive suspension therein involved, which
were for more than ninety (90) days, were excessive
and unreasonable. It is to be noted that the ninety-day
period of preventive suspension is not found in sec. 13
of Republic Act No. 3019 but was adopted from sec. 42
of the Civil Service Decree (P.D. No. 807),7 which is now
sec. 52 of the Administrative Code of 1987. This latter
provision states:
Sec. 52. Lifting of Preventive Suspension Pending
Administrative Investigation. — When the
administrative case against the officer or employee
under preventive suspension is not finally decided by
the disciplining authority within the period of ninety
(90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service: Provided, That when the delay in the disposition
of the case is due to the fault, negligence or petition of
the respondent, the period of delay shall not be
counted in computing the period of suspension herein
provided.
The duration of preventive suspension is thus coeval
with the period prescribed for deciding administrative
disciplinary cases. If the case is decided before ninety
days, then the suspension will last less than ninety days,
but if the case is not decided within ninety days, then
the preventive suspension must be up to ninety days
only. Similarly, as applied to criminal prosecutions
under Republic Act No. 3019, preventive suspension will
last for less than ninety days only if the case is decided
within that period; otherwise, it will continue for ninety
days.
The duration of preventive suspension will, therefore,
vary to the extent that it is contingent on the time it
takes the court to decide the case but not on account of
any discretion lodged in the court, taking into account
the probability that the accused may use his office to
hamper his prosecution.
Indeed, were the Sandiganbayan given the discretion to
impose a shorter period of suspension, say, 80, 70 or 60
days, as petitioner asserts, it would lie in its power not
to suspend the accused at all. That, of course, would be
contrary to the command of sec. 13 of Republic Act No.
3019.
Our holding that, upon the filing of a valid information
charging violation of Republic Act No. 3019, Book II,
Title 7 of the Revised Penal Code, or fraud upon
government or public property, it is the duty of the
court to place the accused under preventive suspension
disposes of petitioner's other contention that since the
trial in the Sandiganbayan is now over with respect to
the presentation of evidence for the prosecution there
is no longer any danger that petitioner would intimidate
prosecution's witnesses. The fact is that the possibility
that the accused would intimidate witnesses or
otherwise hamper his prosecution is just one of the
grounds for preventive suspension. The other one is, as
already stated, to prevent the accused from committing
further acts of malfeasance while in office.
Finally, the fact that petitioner's preventive suspension
may deprive the people of Samar of the services of an
official elected by them, at least temporarily, is not a
sufficient basis for reducing what is otherwise a
mandatory period prescribed by law. The vice governor,
who has likewise been elected by them, will act as
governor.8 Indeed, even the Constitution authorizes the
suspension for not more than sixty days of members of
Congress found guilty of disorderly behavior,9 thus
rejecting the view expressed in one case10 that
members of the legislature could not be suspended
because in the case of suspension, unlike in the case of
removal, the seat remains filled but the constituents are
deprived of representation.
For the foregoing reasons, we hold that in ordering the
preventive suspension of petitioner, the Sandiganbayan
acted according to law.
WHEREFORE, the Petition for Certiorari is DISMISSED.
_____________________________________________
11. Fajardo vs Office of Ombudsman
Under the "threefold liability rule," any act or omission
of any public official or employee can result in criminal,
civil, or administrative liability, each of which is
independent of the other.1
This Petition for Review on Certiorari2 under Rule 45 of
the Rules of Court assails the Decision3 dated April 27,
2006 and the Resolution4 dated June 28, 2006 of the
Court of Appeals (CA) in CA-G.R. SP No. 91021.
Factual Antecedents
Petitioner Ernesto A. Fajardo was employed by
respondent Bureau of Customs (BOC) as a Clerk I from
February 26, 1982 to February 29, 1988 and as a Clerk II
from March 1, 1988.5 However, due to the exigency of
the service, he was designated as a Special Collecting
Officer at the Ninoy Aquino International Airport (NAIA)
Customs House, Collection Division, Pasay City.6
In May 2002, Nancy Marco (Marco), a Commission on
Audit (COA) State Auditor detailed at the NAIA Customs
House,7 was directed by her superior, Auditor Melinda
Vega-Fria, to conduct a post audit of the abstract of
collection of all collecting officers of the NAIA Customs
House.8 In the course of her audit, State Auditor Marco
noticed that in petitioner’s daily abstract of collection
dated August 16, 2002, he received checks in the
amounts of ₱ 295,000.00, ₱ 247,000.00, ₱ 122,000.00, ₱
108,000.00 and ₱ 105,000.00.9 To verify whether it was
possible for him to receive such amounts in one day, a
daily analysis of the sales of accountable forms with the
corresponding documentary stamps was made.10
In the Audit Observation Memorandum (AOM No.
2002-008)11 dated November 26, 2002, State Auditor
Prudencia S. Bautista (Bautista) reported that petitioner
has an unremitted collection from sales of accountable
forms with money value and stamps in the amount of ₱
20,118,355.00 for the period January 2002 to October
2002.12 Upon further investigation by State Auditor
Marco, it was discovered that based on the analysis of
the monthly sales of accountable forms and stamps,
petitioner failed to remit the total amount of ₱
53,214,258.0013 from January 2000 to October 2002.14
On January 6, 2003, Customs Commissioner Antonio M.
Bernardo requested respondent National Bureau of
Investigation-National Capital Region (NBI-NCR) to
conduct an investigation on the reported
misappropriation of public funds committed by
petitioner.15
On January 8, 2003, the resident auditors of NAIA
Customs House, namely: Marco, Bautista, and Filomena
Tolorio, executed separate "Sinumpaang Salaysay"16 at
the NBI. They stated under oath that based on the
Analysis of the Monthly Sales of Accountable Forms and
Stamps for the years 200017 and 2001,18 and the period
January 1, 2002 to October 31, 2002,19 and the
Summary of Analysis of Sale of Stamps and Accountable
Forms for the period January 2000 to October
2002,20 petitioner failed to remit the total amount of ₱
53,214,258.00.21
Thereafter, on January 10, 2003, an Information for
violation of Republic Act (RA) No. 7080 (Plunder) was
filed against petitioner.22 The case was raffled to Branch
119 of the Regional Trial Court (RTC) of Pasay City and
docketed as Criminal Case No. 03-0043.23
On February 8, 2003, Customs District Collector Celso P.
Templo demanded from petitioner the unremitted
collection but the latter failed to return the money and
duly account for the same.24
Finding sufficient basis to commence an administrative
investigation, Mary Susan S. Guillermo, the Director of
the Administrative Adjudication Bureau of the Office of
the Ombudsman, in an Order25 dated February 11, 2003,
directed petitioner to file his counter-affidavit.
On May 19, 2003, petitioner filed his Counter-
Affidavit26 categorically denying the accusation hurled
against him. He claimed that there was no under
remittance on his part because the sale of BOC forms
does not automatically result in the sale of
documentary stamps from the Documentary Stamp
Metering Machine.27 He likewise assailed the validity of
the AOM No. 2002-008 on the ground that it was not
referred to the COA Legal and Adjudication Office as
mandated by Section 1, subsection 2 of the General
Guidelines of COA Memorandum No. 2002-053 dated
August 26, 2003.28
Ruling of the Ombudsman
On May 3, 2005, the Ombudsman rendered a
Decision29 finding petitioner guilty of dishonesty and
grave misconduct.30 Pertinent portions of the Decision
read:
The bulk of the evidence presented supports the finding
that indeed respondent failed to remit the collection
from the sales of accountable forms with money value
and of documentary stamps of the Ninoy Aquino
International Airport Custom House for the years 2000
and 2001 and from January 01 to October 31, 2002 in
the total sum of FIFTY THREE MILLION SIX HUNDRED
FIFTY EIGHT THOUSAND THREE HUNDRED SEVENTY-
ONE PESOS (₱ 53,658,371.00) despite demand on
February 8, 2003 by the Customs District Collector Celso
P. Templo for him to return the same.
The above-mentioned unremitted amount was
discovered after representatives from the COA-NAIA
Customhouse discovered discrepancies in the
collections and remittances of respondent Fajardo
during the period covering January 1, 2002 to October
30, 2002 amounting to ₱ 20,118,355.00 which was
initially communicated to District Collector Celso
Templo through an Audit Observation Memorandum
No. 2002-008 dated November 26, 2002. This leads to a
further investigation resulting to the analysis of
Monthly Sales of Accountable Forms and Stamps
prepared by the COA State Auditors covering the period
January 1, 2000 to October 30, 2002, which showed
that the total amount of unremitted collections for the
sale of accountable forms with money value and
customs documentary and BIR stamps amounted to ₱ Warehouse. The Flow Chart of Accountable Forms
53,658,371.00. submitted by the Collection Division shows that it is the
Collecting Officer (Fajardo) who is authorized to accept
The following table shows a comparison of collections
payment for the sale of Forms and CDS. The assigned
and remittances per report of Mr. Ernesto Fajardo and
Clerk assists him in the stamping on the forms of the
per audit by the team for the period January 2000 to
required CDS, but returns the same to the Collecting
October 30, 2002. As per audit report, the total amount
Officer already stamped for release to the brokers.
of collections is ₱ 440,623,111.00, whereas
respondent’s report disclosed total collections in the The Collecting Officer thereafter prepares Report of
amount of ₱ 387,913,381.00. Collections and deposits collections to the LBP. He also
records transactions in his official cash book where he
xxxx
tallies his collections with the remittances made for the
The above-cited comparison focused on the day.
examination and verification of documents covering
This flow of transactions is also supported by the Sworn
collections and remittances of Fajardo. The documents
Statements executed by Mr. Pica and Ms. Caber who
composed of liquidated and unliquidated entries
attested that they assisted Fajardo in the performance
coming from the following offices:
of his functions. Ms. Caber stamps the forms with
1) Liquidation and Billing Division – which has the required CDS using the franking machine while Mr. Pica
function of verifying, reviewing and checking has the following duties, among others:
computation of formal entries;
1) Checks correctness of RIV of forms requisitions;
2) Cashiers – who submit to COA all informal entries
2) Checks serial number of entries to be sold for the day;
after they have collected customs duties, taxes and
other charges for the imported good; and also the Bonds 3) Assists in the issuance of OR and having it signed by
Division and Office of the Deputy Collector for Mr. Fajardo as Collecting Officer.
Operations which also have custody of various forms
Both of them further attested that payments are
without money value such as bonds, clearances, etc.,
personally received by Fajardo. There are times,
where Customs Documentary Stamps (CDS) are required
however, that they receive the payment but turn the
by regulations to be affixed. The audit likewise
same over to Fajardo.
concentrated on Confirmation with from Brokers
regarding the sale of CDS. Since Fajardo is the only Collecting Officer authorized to
receive payment from the Sale of BOC Forms and CDS at
In fact, confirmation letters were sent to 212 brokers
the Collection Division, NAIA Customs House, he is
who purchased BOC Accountable Forms from NAIA for
accountable for all the collections from the sale by NAIA
the period January 2000 to October 2002. Selection was
Customs House of Bureau of Customs Accountable
based on the volume of purchases made by the brokers.
Forms and Customs Documentary and BIR Stamps
The selected brokers had the highest number of
(CDS).
purchases of BOC Accountable Forms with money value
requiring payment of CDS. To explain how that total aggregate amount was arrived
at, COA State Auditor Nancy Marco said that from her
From the existing procedural flowchart of the Collection
Analysis on the Monthly Sales of Accountable Forms
Division, NAIA Customs House, it appeared that the
and Stamps of respondent for the period January 1,
Collection Division has a Section in charge of the sale of
2002 to October 31, 2002, said respondent was able to
BOC Forms and CDS. Per Organizational Chart of the
sell accountable forms with money value and stamps in
Collection Division, Mr. Fajardo is the Collecting Officer
the sum of ₱ 157,612,585.00 but remitted only ₱
assigned to perform such function. The organizational
137,494,230.00 to the LandBank, NAIA Customs. On
chart also shows that there are three (3) other
January 2001 – December 2001, respondent sold forms
personnel under Fajardo’s supervision such as the BC
and stamps in the sum of ₱ 237,905,834.00 but
Forms Clerk, CDS Clerk and the one in charge of the sale
remitted only ₱ 123,753,065.00. For the year 2000 said
of BC Forms with CDS at Pair Cargo, a Customs Bonded
respondent sold the same forms and stamps in the sum
of ₱ 145,320,000.00 but remitted only ₱
126,666,186.00. From her summary, the total forms and
stamps which respondent sold for said period was in the
total sum of ₱ 441,127,739.00. However, respondent
remitted only the sum of ₱ 389,913,481.00. Therefore,
the total sum which respondent failed to remit
amounted to ₱ 53,214,258.00.00, which was later on
corrected in the COA final audit report to ₱
53,658,371.00 or an increase of ₱ 444,113.00.
A review of the above analysis initiated by COA State
Auditors Filomena Bascon Tolorio and Prudencia S.
Bautista, confirmed the foregoing findings.
The investigating panel is, therefore, of the view that
respondent ERNESTO A. FAJARDO, being a special
collecting officer of the NAIA Customs House, is duty
bound to remit collections of payments from the sale of
Bureau of Customs (BOC) accountable forms with
money value as well as Customs Documentary Stamps,
to the Government via Landbank, the government’s
authorized depositary bank. Respondent’s failure to
remit the amount he collected constitutes Dishonesty
and Grave Misconduct.
xxxx
FOREGOING CONSIDERED, pursuant to Section 52 (A-1)
and (A-3), Rule IV of the Uniform Rules on
Administrative Cases (CSC Resolution No. 991936),
dated August 31, 1999, respondent ERNESTO A.
FAJARDO is hereby found guilty of DISHONESTY and
GRAVE MISCONDUCT and is meted the corresponding
penalty of DISMISSAL FROM THE SERVICE including all
its accessory penalties and without prejudice to criminal
prosecution.
SO ORDERED.31
Petitioner moved for reconsideration32 which was
denied in an Order33 dated July 22, 2005, the dispositive
portion of which reads:
PREMISES CONSIDERED, the instant motion for
reconsideration is hereby DENIED and
the DECISION dated 03 May 2005, is
hereby AFFIRMED with finality.
The Honorable ALEXANDER M. AREVALO,
Commissioner, Bureau of Customs, is hereby directed to
implement the Decision dated 03 May 2005, with the
request to promptly submit to this Office, thru the
Preliminary Investigation and Administrative
Adjudication Bureau – C, 4th Floor, Ombudsman Bldg.,
Agham Road, Government Center, North Triangle,
Diliman, Quezon City, a Compliance Report thereof,
indicating therein the subject OMB case number.
Compliance is respectfully enjoined consistent with
Section 15 (3) of Republic Act No. 6770 (Ombudsman
Act of 1989).
SO ORDERED.34
Ruling of the Court of Appeals
Unfazed, petitioner elevated the case to the CA.
On April 27, 2006, the CA affirmed the dismissal of
petitioner. The CA found substantial evidence to
support the Ombudsman’s finding that petitioner is
guilty of dishonesty and grave misconduct.35 It brushed
aside petitioner’s allegation that the report on the
results of the audit was not lawfully introduced into the
records of the case since no evidence was presented to
substantiate such allegation.36 It likewise rejected
petitioner’s contention that the Ombudsman only has
recommendatory powers, and thus, affirmed the power
of the Ombudsman to remove erring public officials or
employees.37 The fallo of the CA Decision38 reads:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the
petition for review on certiorari is
hereby DISMISSED for lack of merit. Costs against
petitioner.
SO ORDERED.39
Petitioner sought reconsideration40 but the same was
unavailing.41
Issues
Hence, this petition raising the following issues:
A.
Whether x x x competent evidence was presented
before the Office of the Ombudsman to establish
dishonesty and grave misconduct on the part of
petitioner.
B.
Whether x x x the CA committed grave abuse of
discretion in failing to consider and appreciate the
following vital evidences [sic]:
1. At the Collecting Division of NAIA Customs House,
there is only one documentary stamp metered machine.
2. That documentary stamps are sold at the NAIA
Customs House only thru the use of this metered
machine.
3. In Marco’s own analysis x x x, the proceeds from the
actual sale of documentary stamps per metered
machine for the period from January 1, 2000 to October
30, 2002 were all remitted and accounted for by
petitioner.
4. The testimony of Nancy Marco on the safeguards
used to protect the integrity or reliability of the
metered machine.
5. Nancy Marco is not an expert when she testified.
6. The repeated admissions of Nancy Marco that her
"Audit" sales can not be possible for the load on the
machine per month was less than her monthly "audit"
sale.
C.
Whether x x x the CA committed grave abuse of
discretion in failing to consider and appreciate the
findings of the trial court in the related criminal case
that the evidence of guilt against petitioner was
wanting and that there was no direct evidence to prove
that petitioner malversed and/or amassed government
funds.
D.
Whether x x x the CA committed grave abuse of
discretion in relying on documents which were not
introduced or offered in evidence before the Office of
the Ombudsman.
E.
Whether x x x the Ombudsman can directly dismiss
petitioner from government service.42
Petitioner’s Arguments
Insisting on his innocence, petitioner claims that no
competent evidence was presented before the
Ombudsman to show that he is guilty of dishonesty and
grave misconduct.43 He asserts that the audit report of
State Auditor Marco has no evidentiary weight as the
figures stated therein are mere speculations.44 He
likewise contends that the CA and the Ombudsman
erred in relying on the report on the results of the audit,
which was never formally submitted as evidence during
the proceedings before the Ombudsman.45 Instead, they
should have considered the finding of the RTC in the
related criminal case that the evidence of guilt against
petitioner is wanting.46 He points out that when State
Auditor Marco was cross-examined during the bail
hearing in the criminal case filed against him, she
allegedly admitted that it was not possible for him to
have sold more than the amount loaded in the machine
since there is only one metered machine at the
Collecting Division of the NAIA Customs House.47 Lastly,
petitioner contends that the Office of the Ombudsman
only has the power to recommend the removal of a
public official.48
Respondents’ Arguments
The Solicitor General, as counsel for respondents,
maintains that the CA and the Ombudsman correctly
found petitioner guilty of dishonesty and grave
misconduct as there is substantial evidence to support
such finding.49Moreover, contrary to the view of
petitioner, the Ombudsman has the power to remove
an erring public official or employee.50
Our Ruling
The petition lacks merit.
At the outset, it must be emphasized that questions of
fact may not be the subject of an appeal
by certiorari under Rule 45 of the 1997 Rules of Court as
the Supreme Court is not a trier of facts.51 As a rule,
findings of fact of the Ombudsman, when affirmed by
the CA, are conclusive and binding upon this Court,
unless there is grave abuse of discretion on the part of
the Ombudsman.52 In this case, there is none.
Presumption of regularity was not
overturned.
Petitioner imputes irregularities in the proceedings
before the Ombudsman. He claims that the CA and the
Ombudsman should not have relied on the report on
the results of the audit because it was not lawfully
introduced or offered in evidence before the Office of
the Ombudsman.53 Such allegation deserves scant
consideration. No evidence was presented by petitioner
to prove such allegation. As we have often said, in the
absence of clear and convincing proof to the contrary,
public officers or employees are presumed to have
performed their official duties regularly, properly and
lawfully.54
Besides, the report on the results of the audit was not
the sole basis for his dismissal from public service.
Affidavits and testimonies of witnesses taken during the
bail hearing in the criminal case were also submitted as
evidence in the administrative case to prove the
charges against him.55 In fact, the final report merely
confirmed the contents of the audit report of State
Auditor Marco as pointed out by Assistant Ombudsman
Pelagio S. Apostol in his marginal note in the Order
dated July 22, 2005, which reads:
The findings of discrepancies as contained in the audit
observation memorandum prepared by State Auditor
Nancy Marco was already verified and validated per
COA final audit report which was indubitably considered
in the drafting of the questioned Decision.56
There is substantial evidence to support
the finding that petitioner is guilty of
dishonesty and grave misconduct.
The audit report of State Auditor Marco revealed that
petitioner’s remittance fell short of ₱
53,658,371.00.57 Said figure was arrived at by deducting
the total amount remitted by petitioner from the total
"audit sales" of all the accountable forms. The "audit
sales" of each accountable form was computed by
dividing the total sale of each form by the price of the
form multiplied by the corresponding amount of the
documentary stamps.58 The computations were made in
accordance with Customs Memorandum Order (CMO)
No. 19-7759 dated April 14, 1977 which provides that:
In order to simplify the processing of entry papers and
other customs documents, it is directed that metered
customs documentary stamps be impressed beforehand
and the amount thereof added to the cost of the
documents when sold. x x x (Emphasis supplied.)
Thus, contrary to the view of petitioner, the "audit
sales" are not based on mere speculations but are
based on CMO No. 19-77. In fact, during the initial
audit, petitioner and his staff confirmed that
"accountable forms, namely: BC 236, BC 177, BC 199, BC
43 and BC 242 are always sold with documentary
stamps."60
To disprove the correctness of the "audit sales,"
petitioner harps on the fact that the amount loaded on
the machine per month was less than the monthly
"audit sales" of State Auditor Marco. He insists that this
proves that there was no under remittance on his part.
We do not agree. The mere fact that the load in the
machine is less than the "audit sale" does not prove his
innocence. Rather, it only means that either petitioner
sold the accountable forms without the corresponding
documentary stamp, which is a clear violation of CMO
No. 19-77, or that he used another machine, not
authorized by his office, as theorized by State Auditor
Marco.61
To us, the discrepancy between the "audit sales" and
the actual amount remitted by petitioner is sufficient
evidence of dishonesty and grave misconduct
warranting his dismissal from public service. We need
not belabor the point that unlike in a criminal case
where proof beyond reasonable doubt is required,
administrative proceedings only require substantial
evidence or "such relevant evidence as a reasonable
mind may accept as adequate to support a
conclusion."62
Neither do we find any grave abuse of discretion on the
part of the CA in not considering the finding of the RTC
"that the evidence of guilt of petitioner is not
strong."63 To begin with, the Order64 dated January 6,
2004, granting petitioner’s application for bail, was not
attached to the Petition65 he filed with the CA, nor was
it submitted as evidence before the Ombudsman.66 It is
likewise significant to mention that the said Order
merely resolved petitioner’s entitlement to bail. More
important, the Ombudsman and the CA are not bound
by the RTC’s finding because as a rule, administrative
cases are independent from criminal proceedings.67 In
fact, the dismissal of one case does not necessarily
merit the dismissal of the other.68
All told, we find that there is substantial evidence to
show that petitioner failed to remit the amount of ₱
53,658,371.00 from the sale of accountable forms with
money value and documentary stamps for the period
January 2000 up to October 2002.
The Ombudsman has the power to
dismiss erring public officials or
employees.
As a last ditch effort to save himself, petitioner now
puts in issue the power of the Ombudsman to order his
dismissal from service. Petitioner contends that the
Ombudsman in dismissing him from service disregarded from a minimum of six (6) years
Section 13, subparagraph 3, Article XI of the and one day of prision mayor to
Constitution as well as Section 15(3) of RA No. a maximum of ten (l0) years
6770.69 which only vests in the Ombudsman the power and one (1) day of reclusion
to recommend the removal of a public official or temporal;
employee.
2. fine in the amount of
Petitioner's contention has no leg to stand on. P9,813.99, the amount equal to
the amount malversed; and
It is already well-settled that "the power of the
Ombudsman to determine and impose administrative 3. perpetual special
liability is not merely recommendatory but actually disqualification for public office.
mandatory."70 As we have explained in Atty. Ledesma v.
She is likewise ordered to pay the Bureau of Posts the
Court of Appeals,71 the fact "that the refusal, without
amount of P6.70 only to complete the restitution made
just cause, of any officer to comply with the order of the
by the accused.
Ombudsman to penalize an erring officer or employee is
a ground for disciplinary action under Section 15(3) of SO ORDERED. 1
RA No. 6770; is a strong indication that the
Ombudsman's 'recommendation' is not merely advisory In her petition for review before this Court, Milagros
in nature but is actually mandatory within the bounds of Diaz assails her conviction by the Sandiganbayan and
law."72 continues to profess her innocence.

WHEREFORE, the petition is hereby DENIED. the The case against petitioner sprung from the
Decision dated April 27, 2006 and the Resolution dated implementation of Office Order No. 83-15, dated 03
June 28, 2006 of the Court of Appeals in CA-G.R. SP No. March 1983, issued by Provincial Auditor Diosdado
91021 are hereby AFFIRMED. Lagunday, Surigao del Sur, that directed Auditor II
Dominico L. Quijada and Auditing Examiners I Victor B.
Tecson and Zenaida C. Cueto to examine the cash and
other accounts of petitioner Milagros L. Diaz, then
postmistress of Tandag, Surigao del Sur. The following
12. Diaz vs Sandiganbayan day of 04 March 1983, Quijada required petitioner Diaz
to produce all "cash, treasury warrants, checks, money
Milagros L. Diaz, erstwhile postmistress of Tandag,
orders, paid vouchers, payrolls and other cash items"
Surigao del Sur, was found guilty beyond reasonable
that she was officially accountable for. Petitioner, who
doubt of the crime of malversation of public funds
was bonded for P100,000.00, was found to have made
defined by Article 217, paragraph 4, of the Revised
cash payments in the total amount of six thousand one
Penal Code, in a decision rendered by the
hundred seventy-one pesos and twenty-three centavos
Sandiganbayan on 15 March 1996 in Criminal Case No.
(P6,171.23), hereunder itemized:
11295. The Sandiganbayan adjudged:
Nature of Claims Date Amount
WHEREFORE, in view of all the foregoing, the Court
hereby finds the accused Milagros L. Diaz GUILTY Telephone Rental Nov. 1980 P250.00
beyond reasonable doubt of the crime of malversation
of public funds as described and penalized in Art. 217 of Office Rental, S. Haguisan Mar. 1981 570
the Revised Penal Code for the amount of P9,813.99,
and after considering the mitigating circumstance of full TEV, Milagros L. Diaz Dec. 1980 385.2
restitution in her favor and applying the provisions of
Spare parts, Phil. Mail Jun. 1979 50.5
the Indeterminate Sentence Law, hereby sentences her
to suffer the following penalties: Gasoline, Phil. Mail Aug. 1979 1,020.20
1. imprisonment for an
Spare parts, Phil. Mail Dec. 1979 684.8
indeterminate period ranging
Spare parts, Phil. Mail Jan. 1980 353.55 That on March 4, 1983 or for sometime prior thereto, in
the Municipality of Tandag, Province of Surigao del Sur,
Repair, Phil. Mail Oct. 1980 64 Philippines, and within the jurisdiction of this Honorable
Court, said accused Milagros L. Diaz, a public officer
Repair, Phil. Mail Dec. 1980 46 being then the Postmaster III of the Bureau of Posts of
Tandag, Surigao del Sur and as such is responsible and
Registration Fee; Phil. Mail Dec. 1980 25.5
accountable for the public funds entrusted to her by
Office Rental, S. Haguisan Aug. 1981 640 reason of her position, with grave abuse of confidence
and taking advantage of her public position as such, did
TEV, Milagros L. Diaz Nov. 1981 468.5 then and there willfully, unlawfully and feloniously
misappropriate, embezzle and take from said public
Repair, Phil. Mail Jan. 1982 32 funds the amount of P14,191.63, Philippine Currency,
which he (sic) appropriated and converted to her own
Mail Carriage, Postmaster Jan. 1982 6
personal use, to the damage and prejudice of the
Gasoline, Phil. Mail Sept. 1982 228.44 government in the aforementioned amount.

Mail Carriage, Postmaster Feb. 1982 12.5
Gasoline, Phil. Mail Feb. 1982 238.95
Fare, Pedro D. Sindo Oct. 1982 5 posted bail in the amount of P20,000.00; she was
TEV, Milagros L. Diaz Nov. 1982 250.5
Salary, Carlos M. Acevedo 839.59
————
TOTAL P6,171.23 2
=======
The audit team also found petitioner to have sold
postage stamps in the sum of P8,020.40 which she had
failed to record in her cash book, and since Quijada
neither considered the cash items in the aforesaid
amount of P6,171.23 as having been validly disbursed,
he reported that petitioner had incurred a total "cash
shortage" of P14,191.63. He then referred the matter to
the Regional Director of the Bureau of Posts.
In a letter, dated 15 April 1983, Quijada asked petitioner
to explain why criminal and administrative charges
should not be instituted against her. Petitioner did not
respond. On 24 May 1985, Quijada executed an affidavit
attesting to the incurrence by petitioner of a cash
shortage of P14,191.63 and her failure to make a
restitution thereof. On 05 March 1986, an information
for malversation of public funds was filed against
petitioner with the Sandiganbayan; it read:
CONTRARY TO LAW. 3
Petitioner was arrested by virtue of a warrant of arrest
issued by the Sandiganbayan. On 24 March 1986, she
forthwith ordered released from custody by the
Regional Trial Court of Tandag, Surigao del Sur, Branch
XXVII.
The arraignment of petitioner scheduled for 15 May
1986 was reset to 16 June 1986 due to petitioner's
illness and later to the following month at her request.
Meanwhile, petitioner filed a motion for reinvestigation
with the Sandiganbayan contending that the Acting
Provincial Fiscal of Tandag, Surigao del Sur, who had
conducted the preliminary investigation ultimately
recommended the dismissal of the complaint on the
ground that petitioner was able to fully account for the
alleged shortage of P14,191.63. The motion was
granted. The Tanodbayan reinvestigated the case. On
24 April 1987, Mariflor Punzalan-Castillo, the
investigating prosecutor, issued an order dismissing the
complaint on the basis of her finding that there was "no
showing of bad faith on the part of the accused when
she defrayed the expenses subject of the audit," 4 that
the shortage was incurred to defray operational
expenses for the Tandag post office and that the
shortage in cash should instead be blamed on the
failure, or delay, of the Regional Office of the Bureau of
Posts in replenishing the amount spent for office
operation. The investigating prosecutor said:
Only the amount of P1,786.89 has so far been
replenished by the Regional Office. The accountant of
the Regional Office, Bureau of Posts, Davao City, issued
a certification that the amount of P4,384.34
representing claims of Mrs. Diaz were listed in the
statement of payable but unbooked in their book of
accounts due to lack of funds. The remaining shortage
in the amount of P9,807.29 was paid by the accused
also pending replenishment from the Regional Office.
Lastly, the new Postmaster of Tandag, Surigao del Sur
issued a certification that Mrs. Milagros Diaz has
already been cleared of her money accountability.5
The prosecutor thereupon filed with the Sandiganbayan
a motion to withdraw the information against petitioner
from which the Commission on Audit ("COA"), through
its General Counsel, excepted when directed by the
Sandiganbayan to comment. On 19 August 1987, the
Sandiganbayan denied the motion to withdraw the
information and held that the restitution made by
petitioner would not exculpate her from liability.
On 01 December 1987, petitioner was arraigned. She
pleaded not guilty to the indictment.
A pre-trial was conducted on 03 December 1987 during
which petitioner's counsel informed the Sandiganbayan
that the Regional Office of the Bureau of Posts had
reimbursed the entire amount for which petitioner was
held accountable thereby confirming that the assailed
disbursements were truly legitimate. On 18 December
1987, petitioner wrote Presiding Justice Francis E.
Garchitorena a letter 7 submitting to the Sandiganbayan
a carbon copy of the certification of Eduardo F. Cauilan,
Chief of the Finance Section of Region XI of the Bureau
of Posts, to the following effect:
CERTIFICATION
To Whom It May Concern:
This is to certify that according to the records of this
office, the following expenses forming part of the
accountability of former Postmaster Milagros L. Diaz of
Tandag, Post Office, Tandag, Surigao del Sur, were
legitimate expenses having to do with postal operations
of said post office all incurred in the exigencies and
interest of public service, which were all considered and
taken cognizance by this office, details of which are
listed in separate statement forming a part of this
certification covering the total amount of P14,503.31.
This certification is issued upon request and
representation by said Milagros Diaz for whatever legal
purpose it may serve on her behalf.
Issued this 18th day of December, 1987 at Davao City,
Philippines.
(Sgd.)
EDUARDO F. CAUILAN
Chief, Finance Section.
NOTED:
(Sgd.)
DIOSCORO A. GELITO
Asst. Regional Director
Officer-In-charge 8
The statement referred to in the certificate indicated
that the expenses incurred had, in fact, been liquidated.
On 08 February 1988, Special Prosecutor Fidel D.
Galindez informed the Sandiganbayan of the advice he
had received from the Bureau of Posts that the
questioned items were "appropriate expenses by the
Bureau." 9 On 22 March 1988, the prosecutor
manifested that with the aforequoted certification of
the Chief of the Finance Section of Region XI of the
Bureau of Posts, holding to be legitimate expenses the
amount covered by the supposed shortage incurred by
petitioner, there was no prima facie case of
malversation. The motion drew observation from COA,
through Assistant Director Jose G. Molina, that the
statement of petitioner's total accountability of
P14,503.31 was inaccurate.
On 17 June 1988, the Sandiganbayan again denied the
motion to withdraw the information and ruled that the
withdrawal of the information was not justified because
petitioner had already been arraigned and that the
resolution of the conflict on the propriety of the
disbursements made by petitioner was a matter of
evidence that should instead be threshed out during
trial.
Trial ensued with the prosecution and the defense
presenting their respective versions of the case.
On 15 March. 1996, following the submission of
evidence, the Sandiganbayan promulgated its decision
convicting petitioner of the crime of malversation.
Touching base on the evidence of petitioner that the
expenses she had incurred were "office related," the
Sandiganbayan said that the ruling in Villacorta vs.
People, 10 where such expenses were held to be
"payments made in good faith, thus destroying in these
instances the presumption of peculation in Art. 217 of
the Revised Penal Code," would only give "the accused
the benefit of the doubt" by allowing her to show that
the expenses were "indeed office related expenses, and
thus valid cash items" requiring thereby "for
presentation at audit of the required receipts
accompanied by the duly accomplished and approved
vouchers, as well as a demonstration that these claims
had not been reimbursed and were still outstanding" at
the time of audit. Conceding that the amounts of
P1,081.00 and P3,296.64, or a total of P4,377.64, were
allowable, the Sandiganbayan said that petitioner was
"still short of funds by P9,813.99" which petitioner
would be "presumed to have malversed . . . there being
no satisfactory proof presented to substantiate the
legitimate disbursement thereof.
In tackling the claim of petitioner that she had
liquidated rather than restituted the cash items, the
Sandiganbayan explained:
The distinction between liquidation and restitution, of
course, is important. A liquidation of a cash item means
the validation of the transaction,
while restitution means that the accountable officer had
to dig from his or her private resources to cover the
amount involved. The amount paid by the accused as
evidenced by the official receipts she presented in court
represented amounts which she had already received
but which she never turned over until long after the
audit. This only meant that she has paid these amounts
to cover her cash shortage. Thus these items do not
represent liquidation but restitution. 11
It likewise noted that restitution is merely "recognized
in jurisprudence (to be) a mitigating circumstance in
malversation cases." l2
In her petition for review before this Court, petitioner
insists that she did not appropriate or convert to her
personal use the final sum of P9,813.99 held by the
Sandiganbayan to have been malversed by her; that the
amount has been used to defray the expenses for office
rentals, telephone rentals, spare parts, gasoline and
registration fees, and that she did have the
corresponding authority to pay those items of expenses.
The crime of malversation for which petitioner has been
indicted is defined and penalized under Article 217 of
the Revised Penal Code; its pertinent provisions read:
Art. 217. Malversation of public funds or property —
Presumption of malversation. — Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other
person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the
misappropriation of malversation of such funds or
property, shall suffer:
xxx xxx xxx
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed
or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming
any public funds or property with which he is
chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.
The felony involves breach of public trust, and whether
it is committed through dolo or culpa the law makes it
punishable and prescribes a uniform penalty therefor.
Even when the information charges willful
malversation, conviction for malversation through
negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the
offense. 13 The elements of malversation of public funds
are that (a) the offender is a public officer, (b) he has
custody or control of the funds or property by reason of
the duties of his office, (c) the funds or property are
public funds or property for which he is accountable,
and, most importantly, (d) he has appropriated, taken,
misappropriated or consented, or, through
abandonment or negligence, permitted another person
to take them. 14
Concededly, the first three elements are present in this
case. It is the last element, i.e., whether or not
petitioner really has misappropriated public funds,
where the instant petition focuses itself. In convicting
petitioner, the Sandiganbayan cites the presumption in
Article 217 of the Revised Penal Code that the "failure
of a public officer to have duly forthcoming any public
funds with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence
that he has put such missing funds or property to
personal uses." The presumption is, of course,
rebuttable. Accordingly, if the accused is able to present
adequate evidence that can nullify any likelihood that
he had put the funds or property to personal use, then
that presumption would be at an end and the prima
facie case is effectively negated. This Court has
repeatedly said that when the absence of funds is not
due to the personal use thereof by the accused, the
presumption is completely destroyed; in fact, the
presumption is deemed never to have existed at all. 15
The prosecution, upon whose burden was laden the
task of establishing by proof beyond reasonable doubt
that petitioner had committed the offense charged,
mainly relied on the statutory presumption aforesaid
and failed to present any substantial piece of evidence
to indicate that petitioner had used the funds for
personal gain. The evidence submitted, just to the
contrary, would point out that not a centavo of the so-
called "missing funds" was spent for personal use, a
matter that was later acknowledged by the Special
Prosecutor who thereupon recommended the
withdrawal of the information earlier filed against
petitioner. The alleged shortages in the total amount of
P14,191.63 claimed by Auditor Quijada had been
explained by petitioner. On the day of the audit, she
presented a list of cash items showing that she had
spent the amount of P6,171.23 for telephone and office
rentals, spare parts of the vehicle being utilized for the
delivery of mails, registration and repair of that vehicle,
gasoline, fare of an employee, the salary of another
employee and petitioner's travel expense
voucher. l6 The auditor disallowed these cash items
only because at the time of audit, these payments were
not yet approved by the Regional Office. 17 The records,
nevertheless, would show that petitioner's use of the
cash in her possession for operational expenses was
founded on valid authority. COA Circular No. 76-37
allowed postmasters to make payments for gasoline,
spare parts and minor repairs of vehicles subject to
reimbursement by the Regional Office. She advanced
payments of salaries of employees on the basis of
Circular No. 82-21 issued by the Postmaster General.
The Regional Office, through the chief of the finance
section, certified that all the payments made by
petitioner were legitimate operational expenses. Exhibit
7-a, attached to the certificate of 18 December 1987,
disclosed that thirty-two items of the operational
expenses were later approved and liquidated with
checks bearing dates between 07 November 1982 and
28 February 1983. It would appear that somehow the
Sandiganbayan failed to consider the fact that, on 20
November 1982, petitioner had to vacate her post upon
her promotion. Notably, while the thirty-two checks
were issued prior to the audit, there was nothing to
suggest that she already had the checks in her
possession at the time.
Liquidation of obligations incurred by accountable
public officials involves a long process; pertinent
government accounting principles, require the (a)
preparation of the disbursement voucher, (b)
processing of the request for allotment supported by
such documents as payrolls, disbursement vouchers,
purchase/job orders, requisitions for supplies/materials,
etc., and (c) issuance of the corresponding
check. 18 Each time, when accomplished, the
corresponding amount is debited or deducted from the
available funds of the agency which would then
consider the claim settled and paid although there may
have yet been no actual transfer of cash involved from
the government to the payee of the check. The term "to
liquidate" means to settle, to adjust, to ascertain or to
reduce to precision in amount. 19 "Liquidation" does not
necessarily signify payment, 20 and "to liquidate an
account," can mean to ascertain the balance due, to
whom it is due, and to whom it is payable, 21 hence, an
account that has been "liquidated" can also mean that
the item has been made certain as to what, and how
much, is deemed to be owing.22
It would indeed be folly and too restrictive a usage to
construe the word "liquidated" as being solely the
"receipt of checks by petitioner or encashment of the
check by petitioner," and to thereby conclude that she
should be held to have malversed the amount of
P5,600.84 merely for her "failure" to transfer the sum
either to her successor the day she was promoted or to
the auditor on the day the audit was made. 23 The
defense evidence, the authenticity and genuineness of
which were not controverted by the prosecution, would
show that the Regional Office issued thirty checks
bearing dates between 07 November 1982 and 21
March 1984. The checks were not issued forthrightly.
The probability that ineptitude on the part of the
personnel taking charge of the issuance of the checks,
not to mention the commonly-experienced long trail of
red tape in government transactions, had engendered
delay in such issuance should not be discounted.
According to petitioner, again not contested by the
prosecution, after substantiating her claim that the
"shortage" represented legitimate operational
expenses, she followed up the approval of the cash
items with the Regional Office. Upon finally receiving
the thirty-three checks, with her as payee, she encashed
them and immediately turned the cash over to the
Bureau of Posts of Tandag. 24 Forthwith, on 01 July
1983, petitioner paid the amount of P5,652.15 to the
Bureau of Posts under O.R. No. 6645668 25 which
amount, incidentally, is even slightly over the total
amount of P5,600.84 found by the Sandiganbayan.
The payment by postal employees who made "vales"
from petitioner were deposited by her to the account of
the Bureau of Posts of Tandag under O.R. No. 6645670,
dated 06 July 1983, in the amount of P4,155.14.
Petitioner explained that this sum was P294.69 less
than the total amount of the salaries due the
employees because the employees did not always make
"vales" for the full amount of their salaries. 26 While this
Court would consider the practice of disbursing public
funds under the "vale" system to be unmeritorious
where the disbursing officer had not been authorized to
grant "vales" or to make advances of salaries, 27 in this
case, however, the conditions appended to the
authority granted by the Postmaster General to
advance salaries of employees under Circular No. 82-21
sanctioned the practice.
The conclusion made by the Sandiganbayan that the
amounts paid by petitioner to the Bureau of Posts
under O.R. No. 6645668 and No. 6645670 were
"restitution's" would seem to be less than accurate. The
amounts were "replenishments" 28 coming from the
Regional Office in checks issued out in petitioner's name
which she paid, after encashment, to the Bureau of
Posts. The sum of P9,807.29 that was replenished, when
added to the ten items certified to be accounts payable
and to two items replenished by checks issued after 04
March 1983, approved as operational expenses in the
amount of P4,377.64, totalled P14,284.43, or even
P92.80 more than the supposed "shortage" of
P14,161.63.
While it was not made clear which of the office
expenses had been taken from the proceeds of the
postage stamp sales, the fact still remained,
nevertheless, that the Regional Office cleared petitioner
of such accountabilities, indicating at the very least that
she did not spend the amount for personal use. The
Court had heretofore recognized situations that could
necessitate the use by accountable public officials of
cash on hand for pertinent expenditures in the conduct
of official business. In Bugayong vs. People, 29 the Court
acquitted an accused government physician of
malversation for a shortage in cash account upon audit
examination because the collections in the hospital
were found to have been used as its revolving fund for
such official expenditures. In Palma Gil vs.
People, 30 where donated logs were disposed of to
construct municipal projects, the Court held that if
funds or property entrusted to a public officer were
validly used for public purposes he should not be held
liable for malversation.
The Sandiganbayan noticeably depended on the
recommendations of COA in convicting appellant. The
Court could not help but observe that upon being
informed that the Bureau of Posts had reimbursed the
entire amount alleged to be her shortage, Auditor
Quijada opined that his audit report had to be altered
to reflect that fact. Auditor Quijada's acquiescence to
the alteration of his report to conform to the advice
would somehow manifest that the audit was not
conducted with sufficient thoroughness. In Tinga vs.
People, 31 the Court said:
At this juncture, it may not be amiss to state that
considering the gravity of the offense of Malversation of
Public Funds, just as government treasurers are held to
strict accountability as regards funds entrusted to them
in a fiduciary capacity, so also should examining COA
auditors act with greater care and caution in the audit
of the accounts of such accountable officers to avoid
the perpetration of any injustice. Accounts should be
examined carefully and thoroughly 'to the last detail,'
'with absolute certainty' in strict compliance with the
Manual of Instructions. Special note should be taken of
the fact that disallowance's for lack of pre-audit are not
necessarily tantamount to malversation in law.
Imperative it is likewise that sufficient time be given
examined officers to reconstruct their accounts and
refute the charge that they had put government funds
to their personal uses. Access to records must be
afforded them within a reasonable time after audit
when disbursements are still fresh in their minds and
not years after when relevant official records may no
longer be available and the passage of time has blurred
human memory.32
In Dumagat vs. Sandiganbayan 33 where the ruling in
Tinga was reiterated, the Court added:
Since the audit examination left much to be desired in
terms of thoroughness and completeness as there were
accounts which were not considered, the same can not
be made the basis for holding petitioner liable for
malversation.34
Hopefully, the Court is not being impertinent if it were
to urge COA, in the exercise of its awesome powers, to
act with extreme care and judicious consideration of all
attendant circumstances in order to ensure that
innocent public officials may not have to undergo the
trial and the pains that always go with an indictment for
an offense.
Generally, the factual findings of the Sandiganbayan are
conclusive upon this Court but there are established
exceptions to that rule, such as, sans preclusion, when
(1) the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; (2) the inference
made is manifestly an error or founded on a mistake; (3)
there is grave abuse of discretion; (4) the judgment is
based on misapprehension of facts; and (5) the findings
of fact are premised on a want of evidence are
contradicted by evidence on record. 35 In these
instances, this Court is bound to review the facts in
order to avoid a miscarriage of justice. The case at bar,
as may be gleaned from the foregoing disquisition, is
one such instance.1âwphi1.nêt
WHEREFORE, the decision of the Sandiganbayan
appealed from is SET ASIDE, and petitioner Milagros
Diaz ACQUITTED of the crime of malversation of public
funds for insufficiency of proof beyond reasonable
doubt. Costs de oficio.
____________________________________________
13. Ledesma vs CA
This petition for review on certiorari seeks to reverse
and set aside the decision1 dated August 28, 2003 and
the resolution2 dated January 15, 2004 of the Court of
Appeals3 in CA-G.R. SP No. 58264 which affirmed with
modification public respondents’ (1) Joint Resolution
dated January 22, 1999, which ordered, among other
things, petitioner’s suspension for one (1) year for
conduct prejudicial to the service; and (2) Order dated
February 8, 2000, as reiterated in a Memorandum
dated March 17, 2000, which denied petitioner’s
motion for reconsideration but reduced his suspension
to nine (9) months without pay. The Court of Appeals
modified the above issuances by further reducing
petitioner’s suspension from nine (9) months to six (6)
months and one (1) day without pay.4
Petitioner Atty. Ronaldo P. Ledesma is the Chairman of
the First Division of the Board of Special Inquiry (BSI) of
the Bureau of Immigration and Deportation (BID). In a
letter-complaint filed by Augusto Somalio with the Fact
Finding and Intelligence Bureau (FIIB) of the Office of
the Ombudsman, an investigation was requested on
alleged anomalies surrounding the extension of the
Temporary Resident Visas (TRVs) of two (2) foreign
nationals. The FIIB investigation revealed seven (7)
other cases of TRV extensions tainted with similar
irregularities.
As a result, the FIIB, as nominal complainant, filed
before the Administrative Adjudication Bureau (AAB) of
the Office of the Ombudsman a formal complaint
against herein petitioner. Also charged administratively
were Atty. Arthel Caronongan and Ma. Elena P. Ang,
Board Member and Executive Assistant, respectively, in
petitioner’s division. With respect to petitioner, the
complaint was treated as both a criminal and an
administrative charge and docketed as OMB-0-98-0214
(criminal aspect), for nine (9) counts of violation of the
Anti-Graft and Corrupt Practices Act and for falsification
of public documents, and OMB-ADM-0-98-0038
(administrative aspect), for nine (9) counts of
Dishonesty, Grave Misconduct, Falsification of Public
Documents and Gross Neglect of Duty.
The complaint against petitioner, Caronongan and Ang
alleged the following illegal acts: (a) irregularly granting
TRVs beyond the prescribed period; and (b) using
"recycled" or photocopied applications for a TRV
extension without the applicants affixing their
signatures anew to validate the correctness and
truthfulness of the information previously stated
therein. Specifically, petitioner and Caronongan
allegedly signed the Memorandum of Transmittal to the
Board of Commission (BOC) of the BID, forwarding the
applications for TRV extension of several aliens whose
papers were questionable.
In a Joint Resolution5 dated January 22, 1999, Graft
Investigation Officer Marlyn M. Reyes resolved
the administrative cases filed against petitioner,
Caronongan and Ang, as follows:
WHEREFORE, foregoing considered, it is respectfully
recommended that:
1. Respondent ATTY. RONALDO P. LEDESMA be
SUSPENDED from the service for one (1) year for
Conduct Prejudicial to the Interest of the Service;
2. The instant case against ATTY. ARTHEL B.
CARONONGAN be DISMISSED, the same having been
rendered moot and academic; and
3. The instant case against respondent MA. ELENA P.
ANG be DISMISSED for lack of sufficient evidence.
SO RESOLVED.6
Respondent Assistant Ombudsman Abelardo L.
Aportadera, Jr. reviewed the Joint Resolution which was
approved by respondent Ombudsman Desierto on
December 29, 1999.7
In the meantime, on July 9, 1999, respondent
Ombudsman approved a Resolution8 dated June 22,
1999 of Graft Investigation Officer Marilou B. Ancheta-
Mejica, dismissing the criminal charges against
petitioner for insufficiency of evidence.9
10
Petitioner filed a motion for reconsideration in
the administrative case alleging that the BOC which
reviews all applications for TRVs extension, approved
the TRVs in question, hence, petitioner argued that it
effectively declared the applications for extension
regular and in order and waived any infirmity thereon.
11
In an Order dated February 8, 2000, Graft Officer
Reyes recommended the denial of the motion for
reconsideration which was approved by respondent
Ombudsman on March 24, 2000 but reduced the period
of suspension from one (1) year to nine (9) months
without pay.
On April 13, 2000, petitioner filed a petition for review
with the Court of Appeals, which included a prayer for
the issuance of a writ of preliminary prohibitory
mandatory injunction and/or temporary restraining
order to enjoin public respondents from implementing
the order of suspension. The Court of Appeals issued
the TRO on April 19, 2000.
In its Decision dated August 28, 2003, the Court of
Appeals affirmed petitioner’s suspension but reduced
the period from nine (9) months to six (6) months and
one (1) day without pay.12
With the denial of his motion for reconsideration,
petitioner filed the instant petition for review on the
following grounds:
I.
IN PROMULGATING ITS ASSAILED DECISION,
RESPONDENT COURT OF APPEALS MANIFESTLY
OVERLOOKED THE FOLLOWING RELEVANT FACTS AND
MATTERS WHICH, IF PROPERLY CONSIDERED, WOULD
HAVE JUSTIFIED A DIFFERENT CONCLUSION IN FAVOR
OF PETITIONER:
...
II.
THE PRONOUNCEMENT OF RESPONDENT COURT OF
APPEALS THAT THE FINDING OF THE OMBUDSMAN IS
NOT MERELY ADVISORY ON THE BUREAU OF
IMMIGRATION (BI) IS CONTRARY TO THE PERTINENT
PROVISION OF THE 1987 CONSTITUTION AND
APPLICABLE DECISIONS OF THE HONORABLE COURT.
III.
RESPONDENT COURT OF APPEALS ALSO FAILED TO
CONSIDER THAT THE OMBUDSMAN’S RESOLUTION
FINDING PETITIONER ADMINISTRATIVELY LIABLE
CONSTITUTES AN INDIRECT ENCROACHMENT INTO THE
POWER OF THE BUREAU OF IMMIGRATION OVER
IMMIGRATION MATTERS.13
The petition lacks merit.
Petitioner insists that it was the BOC which approved
the questioned applications for the extension of the
TRVs. He denies that he misled or deceived the BOC into
approving these applications and argues that the BOC
effectively ratified his actions and sanctioned his
conduct when it approved the subject applications.
Petitioner adds that he acted in good faith and the
government did not suffer any damage as a result of his
alleged administrative lapse.
We are not persuaded. In his attempt to escape liability,
petitioner undermines his position in the BID and his
role in the processing of the subject applications. But by
his own admission,14 it appears that the BSI not only
transmits the applications for TRV extension and its
supporting documents, but more importantly, it
interviews the applicants and evaluates their papers
before making a recommendation to the BOC. The BSI
reviews the applications and when it finds them in
order, it executes a Memorandum of Transmittal to the
BOC certifying to the regularity and propriety of the
applications.
In Arias v. Sandiganbayan,15 we stated that all heads of
offices have to rely to a reasonable extent on their
subordinates. Practicality and efficiency in the conduct
of government business dictate that the gritty details be
sifted and reviewed by the time it reaches the final
approving authority. In the case at bar, it is not
unreasonable for the BOC to rely on the evaluation and
recommendation of the BSI as it cannot be expected to
review every detail of each application transmitted for
its approval. Petitioner being the Chairman of the First
Division of the BSI has direct supervision over its
proceedings. Thus, he cannot feign ignorance or good
faith when the irregularities in the TRV extension
applications are so patently clear on its face. He is
principally accountable for certifying the regularity and
propriety of the applications which he knew were
defective.
Petitioner could not validly claim that he was singled
out for prosecution. It is of record that administrative
cases were also filed against Caronongan and Ang, but
extraneous circumstances rendered the case against
Caronongan moot while the case against Ang was
dismissed because it was proven that she merely
implemented the approved decision of the BOC.
Equally untenable is the contention that the BOC’s
approval of the defective applications for TRV extension
cured any infirmities therein and effectively absolved
petitioner’s administrative lapse. The instant
administrative case pertains to the acts of petitioner as
Chairman of the First Division of the BSI in processing
nine (9) defective applications, independent of and
without regard to the action taken by the BOC. It does
not impugn the validity of the TRV extensions as to
encroach upon the authority of the BID on immigration
matters. The main thrust of the case is to determine
whether petitioner committed any misconduct,
nonfeasance, misfeasance or malfeasance in the
performance of his duties.
Anent the second and third grounds, petitioner
essentially puts in issue the import of the Ombudsman’s
findings. Petitioner questions the Court of Appeals’
pronouncement that the findings of the Ombudsman
"may not be said to be merely recommendatory" upon
the Immigration Commissioner. He argues that to
uphold the appellate court’s ruling expands the
authority granted by the Constitution to the Office of
the Ombudsman and runs counter to prevailing
jurisprudence on the matter, particularly Tapiador v.
Office of the Ombudsman.16 Petitioner submits that the
Ombudsman’s findings that the TRV applications were
illegal constitutes an indirect interference by the
Ombudsman into the powers of the BOC over
immigration matters.
We do not agree. The creation of the Office of the
Ombudsman is a unique feature of the 1987
Constitution.17 The Ombudsman and his deputies, as
protectors of the people, are mandated to act promptly
on complaints filed in any form or manner against
officers or employees of the Government, or of any
subdivision, agency or instrumentality thereof, including
government-owned or controlled
corporations.18 Foremost among its powers is the
authority to investigate and prosecute cases involving
public officers and employees, thus:
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
Republic Act No. 6770, otherwise known as The
Ombudsman Act of 1989, was passed into law on
November 17, 1989 and provided for the structural and
functional organization of the Office of the
Ombudsman. RA 6770 mandated the Ombudsman and
his deputies not only to act promptly on complaints but
also to enforce the administrative, civil and criminal
liability of government officers and employees in every
case where the evidence warrants to promote efficient
service by the Government to the people.19
The authority of the Ombudsman to conduct
administrative investigations as in the present case is
settled.20 Section 19 of RA 6770 provides:
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.
The point of contention is the binding power of any
decision or order that emanates from the Office of the
Ombudsman after it has conducted its investigation.
Under Section 13(3) of Article XI of the 1987
Constitution, it is provided:
Section 13. The Office of the Ombudsman shall have the
following powers, functions, and duties:
...
(3) Direct the officer concerned to take appropriate
action against a public official or employee at fault,
and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure compliance
therewith. (Emphasis supplied)
Petitioner insists that the word "recommend" be given
its literal meaning; that is, that the Ombudsman’s action
is only advisory in nature rather than one having any
binding effect, citing Tapiador v. Office of the
Ombudsman,21thus:
... Besides, assuming arguendo, that petitioner were
administratively liable, the Ombudsman has no
authority to directly dismiss the petitioner from the
government service, more particularly from his position
in the BID. Under Section 13, subparagraph (3), of
Article XI of the 1987 Constitution, the Ombudsman can
only "recommend" the removal of the public official or
employee found to be at fault, to the public official
concerned.22
For their part, the Solicitor General and the Office of the
Ombudsman argue that the word "recommend" must
be taken in conjunction with the phrase "and ensure
compliance therewith". The proper interpretation of the
Court’s statement in Tapiador should be that the
Ombudsman has the authority to determine the
administrative liability of a public official or employee at
fault, and direct and compel the head of the office or
agency concerned to implement the penalty imposed.
In other words, it merely concerns
the procedural aspect of the Ombudsman’s functions
and not its jurisdiction.
We agree with the ratiocination of public respondents.
Several reasons militate against a literal interpretation
of the subject constitutional provision. Firstly, a cursory
reading of Tapiador reveals that the main point of the
case was the failure of the complainant therein to
present substantial evidence to prove the charges of
the administrative case. The statement that made
reference to the power of the Ombudsman is, at best,
merely an obiter dictum and, as it is unsupported by
sufficient explanation, is susceptible to varying
interpretations, as what precisely is before us in this
case. Hence, it cannot be cited as a doctrinal declaration
of this Court nor is it safe from judicial examination.
The provisions of RA 6770 support public respondents’
theory. Section 15 is substantially the same as Section
13, Article XI of the Constitution which provides for the
powers, functions and duties of the Ombudsman. We
draw attention to subparagraph 3, to wit:
SEC. 15. Powers, Functions and Duties. – The Office of
the Ombudsman shall have the following powers,
functions and duties:
...
(3) Direct the officer concerned to take appropriate
action against a public officer or employee at fault or
who neglects to perform an act or discharge a duty
required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith; or enforce its
disciplinary authority as provided in Section 21 of this
Act: Provided, That the refusal by any officer without
just cause to comply with an order of the Ombudsman
to remove, suspend, demote, fine, censure, or prosecute
an officer or employee who is at fault or who neglects to
perform an act or discharge a duty required by law shall
be a ground for disciplinary action against said
officer; (Emphasis supplied)
We note that the proviso above qualifies the "order" "to
remove, suspend, demote, fine, censure, or prosecute"
an officer or employee – akin to the questioned
issuances in the case at bar. That the refusal, without
just cause, of any officer to comply with such an order
of the Ombudsman to penalize an erring officer or
employee is a ground for disciplinary action, is a strong
indication that the Ombudsman’s "recommendation" is
not merely advisory in nature but is actually mandatory
within the bounds of law. This should not be
interpreted as usurpation by the Ombudsman of the
authority of the head of office or any officer concerned.
It has long been settled that the power of the
Ombudsman to investigate and prosecute any illegal act
or omission of any public official is not an exclusive
authority but a shared or concurrent authority in
respect of the offense charged.23 By stating therefore
that the Ombudsman "recommends" the action to be
taken against an erring officer or employee, the
provisions in the Constitution and in RA 6770 intended
that the implementation of the order be coursed
through the proper officer, which in this case would be
the head of the BID.
It is likewise apparent that under RA 6770, the
lawmakers intended to provide the Office of the
Ombudsman with sufficient muscle to ensure that it can
effectively carry out its mandate as protector of the
people against inept and corrupt government officers
and employees. The Office was granted the power to
punish for contempt in accordance with the Rules of
Court.24 It was given disciplinary authority
over all elective and appointive officials of the
government and its subdivisions, instrumentalities and
agencies (with the exception only of impeachable
officers, members of Congress and the Judiciary).25 Also,
it can preventively suspend any officer under its
authority pending an investigation when the case so
warrants.26
The foregoing interpretation is consistent with the
wisdom and spirit behind the creation of the Office of
the Ombudsman. The records of the deliberations of
the Constitutional Commission27 reveal the following:
MR. MONSOD:
Madam President, perhaps it might be helpful if we give
the spirit and intendment of the Committee. What we
wanted to avoid is the situation where it deteriorates
into a prosecution arm. We wanted to give the idea of
the Ombudsman a chance, with prestige and persuasive
powers, and also a chance to really function as a
champion of the citizen.
However, we do not want to foreclose the possibility
that in the future, The Assembly, as it may see fit, may
have to give additional powers to the Ombudsman; we
want to give the concept of a pure Ombudsman a
chance under the Constitution.
MR. RODRIGO:
Madam President, what I am worried about is if we
create a constitutional body which has neither punitive
nor prosecutory powers but only persuasive powers, we
might be raising the hopes of our people too much and
then disappoint them.
MR. MONSOD:
I agree with the Commissioner.
MR. RODRIGO:
Anyway, since we state that the powers of the
Ombudsman can later on be implemented by the
legislature, why not leave this to the legislature?28
MR. MONSOD:
Yes, because we want to avoid what happened in 1973.
I read the committee report which recommended the
approval of the 27 resolutions for the creation of the
office of the Ombudsman, but notwithstanding the
explicit purpose enunciated in that report, the
implementing law – the last one, P.D. No. 1630—did not
follow the main thrust; instead it created the
Tanodbayan, ...
...
MR. MONSOD: (reacting to statements of Commissioner
Blas Ople):
May we just state that perhaps the honorable
Commissioner has looked at it in too much of an
absolutist position, The Ombudsman is seen as a civil
advocate or a champion of the citizens against the
bureaucracy, not against the President. On one hand,
we are told he has no teeth and he lacks other things.
On the other hand, there is the interpretation that he is
a competitor to the President, as if he is being brought
up to the same level as the President.
With respect to the argument that he is a toothless
animal, we would like to say that we are promoting the
concept in its form at the present, but we are also
saying that he can exercise such powers and functions
as may be provided by law in accordance with the
direction of the thinking of Commissioner Rodrigo. We
did not think that at this time we should prescribe this,
but we leave it up to Congress at some future time if it
feels that it may need to designate what powers the
Ombudsman need in order that he be more effective.
This is not foreclosed.
So, his is a reversible disability, unlike that of a eunuch;
it is not an irreversible disability. (Emphasis supplied)29
It is thus clear that the framers of our Constitution
intended to create a stronger and more effective
Ombudsman, independent and beyond the reach of
political influences and vested with powers that are not
merely persuasive in character. The Constitutional
Commission left to Congress to empower the
Ombudsman with prosecutorial functions which it did
when RA 6770 was enacted. In the case of Uy v.
Sandiganbayan,30 it was held:
Clearly, the Philippine Ombudsman departs from the
classical Ombudsman model whose function is merely
to receive and process the people’s complaints against
corrupt and abusive government personnel. The
Philippine Ombudsman, as protector of the people, is
armed with the power to prosecute erring public
officers and employees, giving him an active role in the
enforcement of laws on anti-graft and corrupt practices
and such other offenses that may be committed by such
officers and employees. The legislature has vested him
with broad powers to enable him to implement his own
actions. ...31
In light of the foregoing, we hold that the Court of
Appeals did not commit any error in finding the
petitioner guilty of conduct prejudicial to the interest of
the service and reducing petitioner’s period of
suspension to six (6) months and one (1) day without
pay, taking into account the education and length of
service of petitioner.
WHEREFORE, the instant petition is DENIED. The
Decision dated August 28, 2003 and the Resolution
dated January 15, 2004 of the Court of Appeals in CA-
G.R. SP No. 58264 are AFFIRMED.
_____________________________________________
14. Bagong Kapisanan vs Dolot (Look at PDF)
_____________________________________________
15. Corona vs Senate
FACTS:
A verified complaint for impeachment was filed against
Chief Justice Renato Corona by respondent Members of
the House of Representatives (HOR). The complaint was
transmitted to the Senate which convened as an
impeachment court.
Petitioner Corona received a copy of the complaint
charging him with culpable violation of the Constitution,
betrayal of public trust and graft and corruption:
a. when he failed to disclose to the public his
statement of assets, liabilities and net worth as
required under Sec. 17, Art. XI of the 1987
Constitution;
b. by failing to meet and observe the stringent
standards under Art. VIII, Section 7 (3) of the
Constitution that provides that “[a] member of
the judiciary must be a person of proven
competence, integrity, probity, and
independence” in allowing the Supreme Court
to act on mere letters filed by a counsel which
caused the issuance of flip-flopping decisions in
final and executory cases;
c. in creating an excessive entanglement with Mrs.
Arroyo through her appointment of his wife to
office; and in discussing with litigants regarding
cases pending before the Supreme Court; when
he blatantly disregarded the principle of
separation of powers by issuing a “status quo
ante” order against the HOR in the case
concerning the impeachment of then
Ombudsman Merceditas Navarro-Gutierrez;
d. through wanton arbitrariness and partiality in
consistently disregarding the principle of res
judicata in the cases involving the 16 newly-
created cities, and the promotion of Dinagat
Island into a province;
 e. by arrogating unto himself, and to a committee
he created, the authority and jurisdiction to
improperly investigate a justice of the Supreme
Court for the purpose of exculpating him. Such
authority and jurisdiction is properly reposed by
the Constitution in the HOR via impeachment.
f. through his partiality in granting a temporary
restraining order (TRO) in favor of former
President Gloria Macapagal-Arroyo and her
husband in order to give them an opportunity
to escape prosecution and to frustrate the ends
of justice, and in distorting the Supreme Court
decision on the effectivity of the TRO in view of
a clear failure to comply with the conditions of
the Supreme Court’s own TRO.
g. when he failed and refused to account for the
Judiciary Development Fund (JDF) and Special
Allowance for the Judiciary (SAJ) collections.
The Impeachment Court granted the prosecution’s
request for subpoena directed to the officers of two
private banks where petitioner allegedly deposited
millions in peso and dollar currencies. PSBank filed a
petition for certiorari and prohibition (G.R. No. 200238)
seeking to enjoin the Impeachment Court and the HOR
prosecutors from implementing the aforesaid subpoena
requiring PSBank thru its authorized representative to
testify and to bring the original and certified true copies
of the opening documents for petitioner’s alleged
foreign currency accounts, and thereafter to render
judgment nullifying the subpoenas including the bank
statements showing the year-end balances for the said
accounts.
This Court issued a TRO in G.R. No. 200238 enjoining
the Senate from implementing the Resolution and
subpoena ad testificandum et duces tecum issued by the
Senate sitting as an Impeachment Court, both dated
February 6, 2012. The Court further resolved to deny
petitioner’s motion for the inhibition of Justices Carpio
and Sereno “in the absence of any applicable
compulsory ground and of any voluntary inhibition from
the Justices concerned.”
On the same day, the present petition was filed arguing
that the Impeachment Court committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when it proceeded to trial on the basis of the complaint
filed by respondent Representatives which complaint is
constitutionally infirm and defective for lack of probable
cause. Petitioner filed a Supplemental Petition claiming
that his right to due process is being violated in the
ongoing impeachment proceedings because certain
Senator-Judges have lost the cold neutrality of impartial
judges by acting as prosecutors. Petitioner particularly
mentioned Senator-Judge Franklin S. Drilon, whose
inhibition he had sought from the Impeachment Court,
to no avail. He further called attention to the fact that
despite the Impeachment Court’s January 27, 2012
Resolution which disallowed the introduction of
evidence in support of paragraph 2.4 of Article II, from
which no motion for reconsideration would be
entertained, “the allies of President Aquino in the
Senate abused their authority and continued their
presentation of evidence for the prosecution, without
fear of objection”. In view of the persistent efforts of
President Aquino’s Senator-allies to overturn the ruling
of Presiding Officer Juan Ponce Enrile that the
prosecution could not present evidence on paragraph
2.4 of Article II -- for which President Aquino even
thanked “his senator allies in delivering what the
prosecution could not”-- petitioner reiterates the reliefs
prayed for in his petition before this Court.
In the Comment Ad Cautelam Ex Superabundanti filed
on behalf of the respondents, the Solicitor General
argues that the instant petition raises matters purely
political in character which may be decided or resolved
only by the Senate and HOR, with the manifestation
that the comment is being filed by the respondents
“without submitting themselves to the jurisdiction of
the Honorable Supreme Court and without conceding
the constitutional and exclusive power of the House to
initiate all cases of impeachment and of the Senate to
try and decide all cases of impeachment.” Citing the
case of Nixon v. United States, respondents contend
that to allow a public official being impeached to raise
before this Court any and all issues relative to the
substance of the impeachment complaint would result
in an unnecessarily long and tedious process that may
even go beyond the terms of the Senator-Judges
hearing the impeachment case. Such scenario is clearly
not what the Constitution intended.
Respondents maintain that subjecting the ongoing
impeachment trial to judicial review defeats the very
essence of impeachment. They contend that the
constitutional command of public accountability to
petitioner and his obligation to fully disclose his assets,
liabilities and net worth prevail over his claim of
confidentiality of deposits; hence, the subpoena subject
of this case were correctly and judiciously issued.
Considering that the ongoing impeachment
proceedings, which was initiated and is being conducted
in accordance with the Constitution, simply aims to
enforce the principle of public accountability and
ensure that the transgressions of impeachable public
officials are corrected, the injury being claimed by
petitioner allegedly resulting from the impeachment
trial has no factual and legal basis. It is thus prayed that
the present petition, as well as petitioner’s prayer for
issuance of a TRO/preliminary injunction, be dismissed.
ISSUE:
Whether or not the certiorari jurisdiction of this Court
may be invoked to assail matters or incidents arising
from impeachment proceedings, and to obtain
injunctive relief for alleged violations of right to due
process of the person being tried by the Senate sitting
as Impeachment Court.
RULING:
Impeachment, described as “the most formidable
weapon in the arsenal of democracy,”14 was foreseen
as creating divisions, partialities and enmities, or
highlighting pre-existing factions with the greatest
danger that “the decision will be regulated more by the
comparative strength of parties, than by the real
demonstrations of innocence or guilt.”15 Given their
concededly political character, the precise role of the
judiciary in impeachment cases is a matter of utmost
importance to ensure the effective functioning of the
separate branches while preserving the structure of
checks and balance in our government. Moreover, in
this jurisdiction, the acts of any branch or
instrumentality of the government, including those
traditionally entrusted to the political departments, are
proper subjects of judicial review if tainted with grave
abuse or arbitrariness.
Impeachment refers to the power of Congress to
remove a public official for serious crimes or
misconduct as provided in the Constitution. A
mechanism designed to check abuse of power,
impeachment has its roots in Athens and was adopted
in the United States (US) through the influence of
English common law on the Framers of the US
Constitution.
Our own Constitution’s provisions on impeachment
were adopted from the US Constitution. Petitioner was
impeached through the mode provided under Art. XI,
par. 4, Sec. 3, in a manner that he claims was
accomplished with undue haste and under a complaint
which is defective for lack of probable cause. Petitioner
likewise assails the Senate in proceeding with the trial
under the said complaint, and in the alleged partiality
exhibited by some Senator-Judges who were apparently
aiding the prosecution during the hearings.
On the other hand, respondents contend that the issues
raised in the Supplemental Petition regarding the
behavior of certain Senator-Judges in the course of the
impeachment trial are issues that do not concern, or
allege any violation of, the three express and exclusive
constitutional limitations on the Senate’s sole power to
try and decide impeachment cases. They argue that
unless there is a clear transgression of these
constitutional limitations, this Court may not exercise its
power of expanded judicial review over the actions of
Senator-Judges during the proceedings. By the nature of
the functions they discharge when sitting as an
Impeachment Court, SenatorJudges are clearly entitled
to propound questions on the witnesses, prosecutors
and counsel during the trial. Petitioner thus failed to
prove any semblance of partiality on the part of any
Senator-Judges. But whether the Senate Impeachment
Rules were followed or not, is a political question that is
not within this Court’s power of expanded judicial
review.
In the meantime, the impeachment trial had been
concluded with the conviction of petitioner by more
than the required majority vote of the Senator-Judges.
Petitioner immediately accepted the verdict and
without any protest vacated his office. In fact, the
Judicial and Bar Council is already in the process of
screening applicants and nominees, and the President
of the Philippines is expected to appoint a new Chief
Justice within the prescribed 90-day period from among
those candidates shortlisted by the JBC. Unarguably, the
constitutional issue raised by petitioner had been
mooted by supervening events and his own acts.
WHEREFORE, the present petition for certiorari and Manor Hotel as required under Rule II, 3.2.2.4
prohibition with prayer for injunctive relief/s is of the Rules Implementing the Building Code.
DISMISSED on the ground of MOOTNESS.
3. There was an unreadable Certificate of
Inspection No. 90-11814 which was made as an
attachment to the application of Manor Hotel
16. Montallana vs Office of Ombudsman
for business/mayor's permit for 2001.
This is a petition for review on certiorari assailing the
4. The Annual Notice of Electrical Inspection dated
Decision[1] dated May 28, 2007 of the Court of Appeals
February 15, 2001 conducted by Gerardo R.
in CA-G.R. SP No. 93898 denying the petition filed by
Villasenor, Electrical Inspector, concurred by
petitioner Romeo M. Montallana and the
Engr. Rodel A. Mesa and petitioner, shows that
Resolution[2] dated September 17, 2007 denying
Manor Hotel has only 89 air-conditioning units
petitioner's motion for reconsideration.
at the time of inspection disclosing a great
disparity as to the true electrical load of the
The factual and procedural antecedents are as follows:
Manor Hotel at the time of the incident.

In the early hours of August 18, 2001, fire struck and 5. The Electrical Division likewise negligently or
engulfed the Manor Hotel in Kamias Road, Quezon City, deliberately failed to indicate in its report that
claiming the lives of seventy-four people and seriously as of September 25, 2000, four (4) electrical
injuring several others. meters of the Manor Hotel were disconnected
by MERALCO due to jumper connections.[3]
To determine the officials and persons responsible for
this tragedy, an investigation was conducted by the
Pending investigation, petitioner and his co-
Fact-Finding & Intelligence Bureau (FFIB) of the Office of
respondents were preventively suspended. On
the Ombudsman (OMB). The FFIB found that the fire
September 24, 2001, petitioner filed his Counter-
that consumed the Manor Hotel was attributable to the
Affidavit.[4] On February 20, 2002, petitioner filed his
hotel's faulty electrical wiring systems. It concluded
Consolidated Memorandum.[5]
that, had it not been for the gross negligence of the
public officials of the local government of Quezon City,
For his part, petitioner raised the following defenses:
who were in charge in the licensing operations of the
Manor Hotel, the incident would not have happened. 1. [D]uring his incumbency as Chief of the
Electrical Division, the mandatory electrical
Consequently, a formal complaint was filed against inspections were regularly conducted and made
petitioner, with several other public officials, before the annually by the assigned inspector(s) in all
Administrative Adjudication Bureau of the OMB, for business establishments within the jurisdiction
Grave Misconduct, Conduct Prejudicial to the Best of Quezon City, including the Manor Hotel.
Interest of the Sendee and Gross Negligence docketed
as OMB-ADM-0-01-0376 (OMB-0-01-0659) and for 2. For year 2000, Electrical Inspector Villasenor
Violation of Section 4, Republic Act (R.A.) No. 6713, inspected the electrical systems of Manor Hotel
docketed as OMB-ADM-O-Oi-0390 (OMB-0-01-0679). and submitted to him the Notice of Annual
Inspection dated February 15, 2001 with No.
The complaint alleged, among other things, that: 01-00896, with a Certification by Edgardo M.
Merida, a licensed electrical contractor, to the
1. From 1995 up to 2000, the Electrical Division, effect that the electrical installations and
Engineering Department did not conduct an equipments at the hotel were inspected and
annual inspection of the electrical systems of tested by the latter and found to be in safe
Manor Hotel. condition. He (Montallana) signed and
approved the same based on the facts set forth
2. The Electrical Division does not even have a
therein, relying in good faith on the correctness
copy of the electrical plans and specifications of
of the entries made by his inspectors.
 3. The requested official records which could
prove that mandatory annual electrical
inspection were conducted at the Manor Hotel
from 1995 to 2000 cannot be produced as these
could have been lost due to frequent transfers
of office and lack of storage rooms or were
among those damaged by the fire that razed
the Quezon City Hall main building sometime in
August 1998.
4. Assuming there was misrepresentation as to the
true electrical status of the Manor Hotel on the
latest inspection conducted six (6) months prior
to the subject fire incident, as a superior officer,
he cannot be held liable for the acts of his
subordinates as he only based his approval on
their reports.[6]
SO ORDERED.[8]
On July 26, 2004, the Office of the Special Prosecutor of
the OMB issued a Memorandum[9] which modified .the
Joint Decision insofar as petitioner and the other
respondents are concerned. In the said Memorandum,
petitioner was also found guilty of gross negligence and
conduct prejudicial to the best interest of the service. It
was also stated therein that since petitioner was
already separated from the service due to his
retirement, the benefits he received by virtue thereof
must be returned to the government as declared in the
Affidavit of Undertaking which he executed before his
retirement. The said Memorandum was approved by
then Ombudsman Simeon V. Marcelo on November 26,
2004.

Aggrieved, petitioner filed a Motion for

On June 17, 2003, the Investigating Panel of the OMB
Reconsideration.[10] On March 2, 2006, the Office of the
rendered a Decision[7] finding petitioner liable for
Special Prosecutor issued a Memorandum[11] denying
Conduct Prejudicial to the Best Interest of the Service
the motion. The said Memorandum was approved by
and Gross Neglect of Duty and meted upon him the
then Ombudsman Ma. Merceditas Navarro-Gutierrez on
penalty of dismissal from the service with all its
March 13, 2006,[12] the dispositive portion of which
accessory penalties, the decretal portion on which
reads:
reads:

WHEREFORE, premises considered, we rule and so hold

as follows:
1). OMB-ADM-0-01-0376:
a). x x x x
b). x x x x
c). Respondents x x x ROMEO M. MONTALLANA x x x,
are hereby found GUILTY OF CONDUCT PREJUDICIAL
TO THE BEST INTEREST OF THE SERVICE AND GROSS
NEGLECT OF DUTY, and for which they are hereby
meted the penalty of DISMISSAL FROM THE SERVICE
WITH ALL ITS ACCESSORY PENALTIES.
xxxx
The Honorable Mayor of Quezon City,
and the Honorable Secretary of the Department of
Interior and Local Government are hereby directed to
implement this DECISION upon finality thereof and in
accordance with law.
WHEREFORE, in view of the foregoing, there having
been no cogent and convincing arguments and pieces of
evidence to set aside the assailed Memorandum, the
undersigned prosecution officers respectfully
recommend that the motions for reconsideration filed
by herein accused be DENIED for utter lack of merit. It is
further recommended that findings and
recommendation contained in the Memorandum dated
26 July 2004 be AFFIRMED in toto.[13]
Not satisfied, petitioner sought recourse before the CA,
docketed as CA-G.R. SP No. 93898. On May 28, 2007,
the CA rendered a Decision[14] denying the petition, the
decretal portion of which reads:
In light of the foregoing, the instant petition is hereby
DENIED. The Joint Decision dated June 17, 2003 and
Memorandum dated July 26, 2004 of the Office of
Ombudsman, in so far as herein petitioner is concerned,
is AFFIRMED.
SO ORDERED.[15]

In ruling against petitioner, the CA ratiocinated that
between petitioner's unsubstantiated denials of the
irregularities made in the electrical inspection of the
Manor Hotel and the categorical findings of the
investigators, there is no room for a contrary conclusion
that petitioner is indeed administratively liable for his
negligence. The CA held that petitioner cannot
attribute the fault to his subordinates. As head of office
and the final approving authority of the Electrical
Division, it behooves petitioner to see to it that his
subordinate engineers and inspectors are performing
their respective duties effectively. Petitioner should
have made appropriate measures that can verify the
veracity of their reports.
Petitioner filed a Motion for Reconsideration,[16] but it
was denied in the Resolution[17] dated September 17,
2007.
Hence, the petition assigning the following errors:
THE COURT OF APPEALS GRAVELY ERRED IN DENYING
PETITIONER'S PETITION AND IN AFFIRMING [THE]
OMBUDSMAN'S DECISION DISMISSING PETITIONER
FROM THE SERVICE, IT APPEARING THAT THE
QUESTIONED DECISION IS NOT IN ACCORD WITH LAW
AND APPLICABLE JURISPRUDENCE OF THIS HONORABLE
COURT CONSIDERING THAT:
A. PUBLIC OFFICERS ARE IMMUNE FROM LIABILITY
FOR THE ACTS AND OMISSIONS OF THEIR
SUBORDINATES.
B. THE FINDINGS OF RESPONDENTS OMBUDSMAN
AND COURT OF APPEALS ON THE
ADMINISTRATIVE LIABILITY OF PETITIONER ARE
BASED ON ASSUMPTION AND SPECULATION.[18]
Petitioner maintains that prior to the incident at the
Manor Hotel, the Electrical Division, Engineering
Department of Quezon City conducted an electrical
inspection on the electrical systems and load of the said
hotel. The inspection was conducted by Electrical
Inspectors Gerardo Villasenor and Edgardo Merida,
which caused the issuance of the Notice of Annual
Inspection[19] dated February 15, 2001 to the owner of
Manor Hotel. The notice bore the signature of the two
inspectors, who both certified that the electrical
installations and equipment at the Manor Hotel were
inspected and tested by them and found to be in safe
condition. Petitioner then affixed his signature thereon
signifying his approval of the reports made by his
subordinates.
Petitioner insists that he signed the Notice of Annual
Inspection in good faith. His act of signing the notice is
incidental to his function as Acting Chief of the Electrical
Division. By affixing his signature on the notice,
petitioner relied in good faith on the correctness of the
entries made therein by his subordinates. Petitioner
contends that his reliance on the veracity of the report
and entries made in the said notice is not constitutive of
gross negligence.
Petitioner also posits that the Ombudsman and CA
erred in concluding that no annual electrical inspections
were conducted on the Manor Hotel prior to 2001.
Petitioner submits that his failure to present copies of
prior notice of inspection reports made on the Manor
Hotel was due to the fact that the hotel was
constructed and completed prior to the creation of the
Electrical Division; it was only in 1996 that he became
the Officer-in-Charge of the Electrical Division; that
most of the records of the Electrical Division were lost
or destroyed when a fire razed the 5th floor of the
Quezon City Hall and when the Office of the Electrical
Division was transferred several times to different parts
of the Quezon City Hall.
Based on the foregoing, petitioner argues that he could
not be held administratively liable based on the
principle of command responsibility.
On its part, respondent maintains that the evidence
presented before the Ombudsman showed that
petitioner failed to live up to the exacting demands of
public office. Petitioner was unmindful and indifferent
of his duties and responsibilities. The negligent acts of
petitioner clearly show that he failed to perform his
official duties with the highest degree of responsibility
and integrity, which eventually contributed to the tragic
incident.
The petition is bereft of merit.
Gross neglect of duty or gross negligence refers to
negligence characterized by the want of even slight
care, acting or omitting to act in a situation where there
is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to
consequences, insofar as other persons may be
affected. It is-the omission of that care which even
inattentive and thoughtless men never fail to give to
their own property. In cases involving public officials,
there is gross negligence when a breach of duty is
flagrant and palpable.[20]
True, this Court has held in several cases that in the
absence of substantial evidence of gross negligence of
the petitioner, administrative liability could not be
based on the principle of command
responsibility.[21] However, in the case at bar, the
findings of the Office of the Ombudsman, as affirmed by
the CA, clearly establish the negligence of petitioner in
the performance of his duties as head of the Electrical
Division.
Among the duties and responsibilities attached to the
Electrical Division of Quezon City is to conduct annual
inspection of existing electrical installations within the
jurisdiction of Quezon City. Section 3 (B) of Ordinance
No. SP-33, S-92, or the Ordinance Creating an Electrical
Division Under the Engineering Department of Quezon
City and Providing for its Personnel Requirements,
Duties and Functions, as well as Appropriating the
Necessary Funds Therefor,[22] provides that:
Section 3. The Electrical Division shall have the following
duties and functions:
A. Formulate, evaluate and supervise the electrical
aspects of the construction projects undertaken by the
city;
B. Inspect the electrical installations of the newly
constructed structures in the City and undertake annual
inspections of existing electrical installations;
C. Evaluate and process applications for wiring permits
and electrical certificates; and
D. Perform other related functions as may be required
by the practice of Electrical Engineering as per
requirements of the Philippine Electrical Code, the R.A.
184 and other related laws arid ordinances.[23]
Thus, it was incumbent on petitioner as head of the
Electrical Division to see to it that proper annual
inspections are conducted on the existing electrical
installations in Quezon City. Records would disclose that
the charges against petitioner were supported by the
evidence on record. It has been sufficiently established
by the FFIB and concurred to by the Ombudsman as
well as the CA that:
1. Records of the Business Permit & License Office
revealed that Manor Hotel was issued a Certificate of
Electrical Inspection only on its first year of operation in
1991. Manor Hotel was able to secure its business
permits for years 1995, 1999, 2000 and 2001, without
the necessary requirements for obtaining the same such
as a Certificate of Electrical Inspection. Thus, for these
years, there was no electrical inspection conducted.
Further, the hotel did not apply and secure a business
permit for year 1996, 1997, 1998 and it has no business
permit at the time of the incident. Since there was no
application for a business permit, there was likewise no
referral for an electrical inspection to the Electrical
Division, which is a Standard Operating Procedure in
processing applications for business permits. Thus, for
these years, there can be no electrical inspection
conducted.
2. The logbook presented reflected an entry that in
1998, Manor Hotel obtained wiring/electrical permit
and Certificate of Electrical Inspection, but it was not
clear therefrom if the inspection was indeed conducted
as Manor Hotel did not secure a business permit for
that year, too.
3. The Electrical Division does not have a copy of the
approved electrical plans and specifications of the
Manor Hotel, supposedly to be on active file, as
required under Rule II, 3.2.2,4 of the Rules
Implementing the Building Code. Such plan is a vital
document which must come in handy for the Electrical
Division as it is a guide necessary in carrying out
electrical inspections of any establishment or building.
The excuse that the
Electrical Division did not exist yet at the time of t
he construction/completion of the Manor Hotel, is
lame. Petitioner, being the Chief thereat, should have
taken initiatives to secure a copy for his file to aid him in
determining the veracity of the reports submitted to
him by his subordinates. Absent such plan and
specifications, it weakens his defense that inspections
were done accordingly.
4. The Notice of Annual Inspection dated February 15,
2001 does not per se prove that an inspection was
indeed conducted. If it were so, the excess on the
electrical load and the jumper connections would have
been discovered that could have prevented the
incident, the proximate cause of which was the
electrical overload.
5. The Answer of Manuel S. Baduria, Sr. - Fire Marshall I
stated that the fire was caused by electrical ignition and
that it was not his duty to regulate/inspect the
installation of electrical wirings in buildings and
establishments as it is incumbent upon the Electrical
Division to conduct the same.
6. The Answer of Alfredo Macapugay - City Engineer and
concurrent Local Building Official of Quezon City stated
that if there was any negligence committed, it should be
solely directed against the Electrical Division of Quezon
City as it is their direct responsibility to conduct the
annual inspection of the electrical installations of
all the business establishments within the city.
7. The Answer of Engr. Rodel A. Mesa, Inspector
Engineer II, Electrical Division, confirmed that the
Notice of Annual Inspection dated February 15, 2001
did not pass through the normal channel and was
processed and issued without his knowledge and
recommendation. He stressed that the payment of fees
corresponding to the electrical loads and the issuance
of the Certificate were all done in the same day, April
16, 2001 and was presented to him for his initial only on
April 17, 2001, after it was already issued. Such incident
is not an isolated case as there were other instances
that the annual notice did not pass through him for
reasons known only to his colleagues. He tried to
convey such practice to his superior (referring to
petitioner) but no positive action was taken thereon.
8. The Electrical Report No. 08-29-01 of Engr. David R.
Aoanan, Chief. Electrical Section, National Bureau of
Investigation, established that the overuse of electrical
gadgets and appliances within the hotel caused the
overloading of the electrical installation which ignited
the ceiling of the stockroom of the third floor of the
hotel.
9. The Notice of Annual Inspection dated February 15,
2001 does not categorically prove that the inspection
was conducted considering that it contains
misrepresentations as to the true electrical status of
Manor Hotel.
10. Petitioner made conflicting statements about his
hand in the approval and signing of such Notice. In this
petition and in the Consolidated Memorandum he
stated that he signed and approved the Notice of
Annual Inspection while in his Motion for
Reconsideration he stated that he did not sign nor initial
said Notice, but it was Engr. Rodel A. Mesa who did so.
This only shows that petitioner was not sure as to his
stand as to whether an inspection was conducted.
11. While denying his participation in the Notice of
Annual Inspection dated February 15, 2001, petitioner
nevertheless used this Notice as his only proof that
inspection were regularly conducted.[24]
The purpose of administrative proceedings is mainly to
protect the public service, based on the time-honored
principle that a public office is a public trust.[25] From
the foregoing, petitioner's negligence in the
performance of his duties as a public servant was well
established. In administrative proceedings, the
quantum of proof necessary for a finding of guilt is
substantial evidence, i.e., that amount of relevant
evidence that a reasonable mind might accept as
adequate to support a conclusion.[26]
Suffice it to state that in this jurisdiction the well-settled
rule is that the findings of fact of administrative bodies,
if based on substantial evidence, are controlling on the
reviewing authority. It is settled that it is not for the
appellate court to substitute its own judgment for that
of the administrative agency on the sufficiency of the
evidence and the credibility of the witnesses.
Administrative decisions on matters within their
jurisdiction are entitled to respect and can only be set
aside on proof of grave abuse of discretion, fraud or
error of law.[27] Consequently, the CA correctly affirmed
the conclusion of the Office of the Ombudsman.
Moreover, the issue of whether petitioner's guilt on the
administrative charges against him is supported by
substantial evidence is factual in nature, the
determination of which is beyond the ambit of this
Court. The task of this Court in an appeal by petition for
review on certiorari as a jurisdictional matter is limited
to reviewing errors of law that might have been
committed by the CA.[28] The Supreme Court cannot be
tasked to go over the proofs presented by the
petitioner in the proceedings below and analyze, assess
and weigh them to ascertain if the court a quo and the
appellate court were correct in their appreciation of the
evidence.[29] This Court has time and again refrained
from interfering with the Ombudsman's exercise of its
constitutionally mandated investigatory and
prosecutory powers. This is in recognition of the Office
of the Ombudsman's independence and initiative in
prosecuting or dismissing a complaint filed before
it.[30]More so, in the case at bar, where the CA affirmed
the factual findings and conclusion of the Office of the
Ombudsman. Although there are exceptions to this rule,
none of which exists in the present case.
It is worth to reiterate that, a public office is a public
trust. Public officers and employees must, at all times,
be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with
patriotism and justice, and lead modest lives.[31] As a
public servant, petitioner is tasked to provide efficient,
competent, and proper service to the public. Public
officials and employees are under obligation to perform
the duties of their offices honestly, faithfully, and to the
best of their ability.[32] In the case at bar, petitioner
miserably failed to perform his duties as a public
servant.
WHEREFORE, premises considered, the petition
is DENIED. The Decision dated May 28, 2007 and the
Resolution dated September 17, 2007 of the Court of
Appeals in CA-G.R. SP No. 93898 are AFFIRMED.
17. Gonzales vs Office of the President
We resolve the Office of the President's (OP 's) motion
for reconsideration of our September 4, 2012
Decision1which ruled on the petitions filed by Deputy
Ombudsman Emilio Gonzales III and Special Prosecutor
Wendell Barreras-Sulit. Their petitions challenged the
constitutionality of Section 8(2) of Republic Act (RA) No.
6770.2
In the challenged Decision, the Court upheld the
constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction
over a Deputy Ombudsman and a Special Prosecutor.
The Court, however, reversed the OP ruling that: (i)
found Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust;
and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply
sought to restrain the disciplinary proceedings against
her, solely questioned the jurisdiction of the OP to
subject her to disciplinary proceedings. The Court
affirmed the continuation of the proceedings against
her after upholding the constitutionality of Section 8(2)
of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the
Office of the President in OP Case No. 1 O-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. ll-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 1989.3
In view of the Court’s ruling, the OP filed the present
motion for reconsideration through the Office of the
Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of
the petitions and the present motion for
reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges
with the Philippine National Police Internal Affairs
Service (PNP-IAS) and with the Manila City Prosecutor’s
Office against Manila Police District Senior Inspector
Rolando Mendoza and four others (Mendoza, et al.) for
robbery, grave threat, robbery extortion and physical
injury.4
On May 29, 2008, Police Senior Superintendent Atty.
Clarence Guinto filed an administrative charge for grave
misconduct with the National Police Commission
(NAPOLCOM) PNP-NCRPO against Mendoza, et al. based
on the same allegations made by Kalaw before the PNP-
IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for
Military and Other Law Enforcement Officers (MOLEO),
directed the NAPOLCOM to turn over the records of
Mendoza’s case to his office. The Office of the Regional
Director of the NAPOLCOM duly complied on July 24,
2008.6 Mendoza, et al. filed their position papers with
Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on
August 26, 2008), the Office of the City Prosecutor of
Manila City dismissed Kalaw’s complaint against
Mendoza, et al. for his failure to substantiate his
allegations.8 Similarly, on October 17, 2008, the PNP-IAS
recommended the dismissal without prejudice of the
administrative case against Mendoza, et al. for Kalaw’s
failure to prosecute.9
On February 16, 2009, after preparing a draft decision
on Mendoza, et al.’s case, Gonzales forwarded the
entire records to the Office of then Ombudsman
Merceditas Gutierrez for her review.10 In his draft
decision, Gonzales found Mendoza, et al. guilty of grave
misconduct and imposed on them the penalty of
dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s
decision that approved Gonzales’ recommendation on
October 30, 2009. Mendoza, et al. filed a motion for
reconsideration12 on November 5, 2009, followed by a
Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section
forwarded Mendoza, et al.’s case records to the
Criminal Investigation, Prosecution and Administrative
Bureau-MOLEO. On December 14, 2009, the case was
assigned to Graft Investigation and Prosecution Officer
(GIPO) Dennis Garcia for review and recommendation.14
GIPO Garcia released a draft order15 to his immediate
superior, Director Eulogio S. Cecilio, for appropriate
action on April 5, 2010. Dir. Cecilio signed and
forwarded the draft order to Gonzales’ office on April
27, 2010. Gonzales reviewed the draft and endorsed the
order, together with the case records, on May 6, 2010
for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the
Ombudsman on Mendoza, et al.’s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists
and the four Filipino tour assistants on board as
hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it
ended tragically, resulting in the deaths of Mendoza and
several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III
directed the Department of Justice and the Department
of Interior and Local Government to conduct a joint
thorough investigation of the incident. The two
departments issued Joint Department Order No. 01-
2010, creating an Incident Investigation and Review
Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found
the Ombudsman and Gonzales accountable for their
"gross negligence and grave misconduct in handling the
case against Mendoza."17 The IIRC stated that the
Ombudsman and Gonzales’ failure to promptly resolve
Mendoza’s motion for reconsideration, "without
justification and despite repeated pleas" xxx
"precipitated the desperate resort to hostage-
taking."18 The IIRC recommended the referral of its
findings to the OP for further determination of possible
administrative offenses and for the initiation of the
proper administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was
formally charged before the OP for Gross Neglect of
Duty and/or Inefficiency in the Performance of Official
Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as
charged and dismissed him from the service.21According
to the OP, "the inordinate and unjustified delay in the
resolution of [Mendoza’s] Motion for Reconsideration
[‘that spanned for nine (9) long months’] xxx amounted
to gross neglect of duty" and "constituted a flagrant
disregard of the Office of the Ombudsman’s own Rules
of Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no
administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the
Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received
the draft order from GIPO Garcia on April 27, 2010. On
May 6, 2010, he completed his review of the draft,
approved it, and transmitted it to the Office of the
Ombudsman for final approval. Since the draft order on
Mendoza’s motion for reconsideration had to undergo
different levels of preparation, review and approval, the
period it took to resolve the motion could not be
unjustified, since he himself acted on the draft order
only within nine (9) calendars days from his receipt of
the order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged
Major General Carlos F. Garcia and several others,
before the Sandiganbayan, with plunder and money
laundering. On May 7, 2007, Garcia filed an Urgent
Petition for Bail which the prosecution opposed. The
Sandiganbayan denied Garcia's urgent petition for bail
on January 7, 2010, in view of the strength of the
prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman,
through Sulit and her prosecutorial staff, entered into a
plea bargaining agreement (Agreement) with
Garcia.24 Garcia thereby agreed to: (i) withdraw his plea
of not guilty to the charge of plunder and enter a plea
of guilty to the lesser offense of indirect bribery; and (ii)
withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense
of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and
other interests over the real and personal properties
enumerated in the Agreement and the bank deposits
alleged in the information.25
The Sandiganbayan approved the Agreement on May 4,
201026 based on the parties’ submitted Joint Motion for
Approval.27
The apparent one-sidedness of the Agreement drew
public outrage and prompted the Committee on Justice
of the House of Representatives to conduct an
investigation. After public hearings, the Committee
found that Sulit, her deputies and assistants committed
culpable violations of the Constitution and betrayal of
public trust – grounds for removal under Section 8(2) of
RA No. 6770.28The Committee recommended to the
President the dismissal from the service of Sulit and the
filing of appropriate charges against her deputies and
assistants before the appropriate government office.
Accordingly, the OP initiated an administrative
disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning
the OP’s jurisdiction.30 The question of jurisdiction
notwithstanding, the OP set the case for preliminary
investigation on April 15, 2011, prompting Sulit to seek
relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection,
the Court votes to grant Gonzales’ petition and to
declare Section 8(2) of RA No. 6770 unconstitutional
with respect to the Office of the Ombudsman. (As the
full explanation of the Court’s vote describes below, this
conclusion does not apply to Sulit as the grant of
independence is solely with respect to the Office of the
Ombudsman which does not include the Office of the
Special Prosecutor under the Constitution. The
prevailing ruling on this latter point is embodied in the
Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of
the petitioners
At the outset, the Court notes that Gonzales and Sulit
did not file a motion for reconsideration of the Court’s
September 4, 2012 Decision; only the OP, through the
OSG, moved for the reconsideration of our ruling
reinstating Gonzales.
This omission, however, poses no obstacle for the
Court’s review of its ruling on the whole case since a
serious constitutional question has been raised and is
one of the underlying bases for the validity or invalidity
of the presidential action. If the President does not have
any constitutional authority to discipline a Deputy
Ombudsman and/or a Special Prosecutor in the first
place, then any ruling on the legal correctness of the
OP’s decision on the merits will be an empty one.
In other words, since the validity of the OP’s decision on
the merits of the dismissal is inextricably anchored on
the final and correct ruling on the constitutional issue,
the whole case – including the constitutional issue –
remains alive for the Court’s consideration on motion
for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy
Ombudsman may be subjected to the administrative
disciplinary jurisdiction of the President (concurrently
with that of the Ombudsman) is a justiciable – not a
political – question. A justiciable question is one which
is inherently susceptible of being decided on grounds
recognized by law,31 as where the court finds that there
are constitutionally-imposed limits on the exercise of
the powers conferred on a political branch of the
government.32
In resolving the petitions, we do not inquire into the
wisdom of the Congress’ choice to grant concurrent
disciplinary authority to the President. Our inquiry is
limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA No.
6770 violates the core constitutional principle of the
independence of the Office of the Ombudsman as
expressed in Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can
create the power that Section 8(2) of RA No. 6770
grants where the Constitution confers none. When
exercised authority is drawn from a vacuum, more so
when the authority runs counter to a core
constitutional principle and constitutional intents, the
Court is duty-bound to intervene under the powers and
duties granted and imposed on it by Article VIII of the
Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents
established several Ombudsman-like agencies to serve
as the people's medium for airing grievances and for
direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed
to fully realize their objective for lack of the political
independence necessary for the effective performance
of their function as government critic.33
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office
to give it political independence and adequate powers
to enforce its mandate. Pursuant to the 1973
Constitution, President Ferdinand Marcos enacted
Presidential Decree (PD) No. 1487, as amended by PD
No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked
principally to investigate, on complaint or motu proprio,
any administrative act of any administrative agency,
including any government-owned or controlled
corporation. When the Office of the Tanodbayan was
reorganized in 1979, the powers previously vested in
the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive
authority to conduct preliminary investigation of all
cases cognizable by the Sandiganbayan, file the
corresponding information, and control the prosecution
of these cases.34
With the advent of the 1987 Constitution, a new Office
of the Ombudsman was created by constitutional fiat.
Unlike in the 1973 Constitution, its independence was
expressly and constitutionally guaranteed. Its objectives
are to enforce the state policy in Section 27, Article
II35 and the standard of accountability in public service
under Section 1, Article XI of the 1987 Constitution.
These provisions read:
Section 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers
and employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty, and efficiency; act with patriotism and justice,
and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution,
the Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive,
and corrupt in the Government, to function essentially
as a complaints and action bureau.36 This constitutional
vision of a Philippine Ombudsman practically intends to
make the Ombudsman an authority to directly check
and guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to
enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
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, italics supplied]
As the Ombudsman is expected to be an "activist
watchman,"37 the Court has upheld its actions, although
not squarely falling under the broad powers granted it
by the Constitution and by RA No. 6770, if these actions
are reasonably in line with its official function and
consistent with the law and the Constitution.38
The Ombudsman’s broad investigative and disciplinary
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]
Given the scope of its disciplinary authority, the Office
of the Ombudsman is a very powerful government
constitutional agency that is considered "a notch above
other grievance-handling investigative bodies."39 It has
powers, both constitutional and statutory, that are
commensurate with its daunting task of enforcing
accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the
Ombudsman’s independence
Under the Constitution, several constitutional bodies
have been expressly labeled as "independent."41The
extent of the independence enjoyed by these
constitutional bodies however varies and is to be
interpreted with two significant considerations in mind:
first, the functions performed or the powers involved in
a given case; and second, consistency of any allowable
interference to these powers and functions, with the
principle of checks and balances.
Notably, the independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions
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. In general terms, the framers of the
Constitution intended that these "independent" bodies
be insulated from political pressure to the extent that
the absence of "independence" would result in the
impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of
the Judiciary, we ruled against the interference that the
President may bring and maintained that the
independence and the flexibility of the Judiciary, the
Constitutional Commissions and the Office of the
Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional
duties. The imposition of restrictions and constraints on
the manner the independent constitutional offices
allocate and utilize the funds appropriated for their
operations is anathema to fiscal autonomy and violative
not only the express mandate of the Constitution but
especially as regards the Supreme Court, of the
independence and separation of powers upon which
the entire fabric of our constitutional system is based.
The constitutional deliberations explain the
Constitutional Commissions’ need for independence. In
the deliberations of the 1973 Constitution, the
delegates amended the 1935 Constitution by providing
for a constitutionally-created Civil Service Commission,
instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom
from the tentacles of politics.43 In a similar manner, the
deliberations of the 1987 Constitution on the
Commission on Audit highlighted the developments in
the past Constitutions geared towards insulating the
Commission on Audit from political pressure.44
Notably, the Constitution also created an
"independent" Commission on Human Rights, although
it enjoys a lesser degree of independence since it is not
granted fiscal autonomy in the manner fiscal autonomy
is granted to the constitutional commissions. 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. xxx 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.45
These deliberative considerations abundantly show that
the independent constitutional commissions have been
consistently intended by the framers to be independent
from executive control or supervision or any form of
political influence. At least insofar as these bodies are
concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents
presidential interference.
In Brillantes, Jr. v. Yorac,46 we 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. The
Court declared as unconstitutional the President’s act of
temporarily appointing the respondent in that case as
Acting Chairman of the Comelec "however well-
meaning"47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically
stated that the tenure of the commissioners of the
independent Commission on Human Rights 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.
Again, in Atty. Macalintal v. Comelec,49 the Court
considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling" of
the constitutional mandate of independence of this
body. Obviously, the mere review of rules places
considerably less pressure on a constitutional body than
the Executive’s power to discipline and remove key
officials of the Office of the Ombudsman, yet the Court
struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior – but is similar
in degree and kind – to the independence similarly
guaranteed by the Constitution to the Constitutional
Commissions since all these offices fill the political
interstices of a republican democracy that are crucial to
its existence and proper functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed
caution against presidential interference with the
constitutional commissions, on one hand, and those
expressed by the framers of the 1987 Constitution, on
the other, in protecting the independence of the
Constitutional Commissions, speak for themselves as
overwhelming reasons to invalidate Section 8(2) of RA
No. 6770 for violating the independence of the Office of
the Ombudsman.
In more concrete terms, we rule that subjecting the
Deputy 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 Office of the Ombudsman
itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of
them tasked to support the Ombudsman in carrying out
her mandate. Unfortunately, intrusion upon the
constitutionally-granted independence is what Section
8(2) of RA No. 6770 exactly did. By so doing, the law
directly collided not only with the independence that
the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of checks
and balances that the creation of an Ombudsman office
seeks to revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of
the Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her
complete trust in her 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) should be declared void.
The deliberations of the Constitutional Commission on
the independence of the Ombudsman fully support this
position. Commissioner Florenz Regalado of the
Constitutional Commission expressed his apprehension
that any form of presidential control over the Office of
the Ombudsman would diminish its
independence.51 The following exchanges between
Commissioners Blas Ople and Christian Monsod further
reveal the constitutional intent to keep the Office of the
Ombudsman independent from the President:
MR. OPLE. xxx
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 President, it was an ineffectual body and was
reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those
functions and to produce a vehicle that will give true
meaning to the concept of Ombudsman. Therefore, we
regret that we cannot accept the proposition.52
The statements made by Commissioner Monsod
emphasized a very logical principle: the Executive
power to remove and discipline key officials of the
Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein
the Office of the Ombudsman is given the duty to
adjudicate on the integrity and competence of the very
persons who can remove or suspend its members.
Equally relevant is the 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 appears to enjoy the President’s favor,
would be discouraged from approaching the
Ombudsman with his complaint; the complainant’s
impression (even if misplaced), that the Ombudsman
would be susceptible to political pressure, cannot be
avoided. To be sure, such an impression would erode
the constitutional intent of creating an Office of the
Ombudsman as champion of the people against
corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress
apparently addressed the concern that a lack of an
external check against the Deputy Ombudsman would
result in mutual protection between the Ombudsman
and her Deputies.
While the preceding discussion already suffices to
address this concern, it should be added that this
concern stands on shaky grounds since it ignores the
existing checks and balances already in place. On the
one hand, the Ombudsman’s Deputies cannot protect
the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand,
the Ombudsman’s attempt to cover up the misdeeds of
her Deputies can be questioned before the Court on
appeal or certiorari. The same attempt can likewise
subject her to impeachment.
The judicial recourse available is only consistent with
the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to
settle judicial and quasi-judicial disputes, whose judges
and employees are not subject to the disciplinary
authority of the Ombudsman and whose neutrality
would be less questionable. The Members of the Court
themselves may be subjected to the impeachment
power of Congress.
In these lights, the appeal, if any, of the mutual
protection argument becomes distinctly implausible. At
the same time, the Court remains consistent with its
established rulings - that the independence granted to
the Constitutional Commissions bars any undue
interference from either the Executive or Congress –
and is in full accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987
Constitution,53 Congress is empowered to determine
the modes of removal from office of all public officers
and employees except the President, the Vice-
President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the
Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in
providing that "[a]ll other public officers and employees
may be removed from office as provided by law, but not
by impeachment" in the second sentence of Section 2,
Article XI is to prevent Congress from extending the
more stringent rule of "removal only by impeachment"
to favored public officers.54 Understandably so,
impeachment is the most difficult and cumbersome
mode of removing a public officer from office. It is, by
its nature, a sui generis politico-legal process55 that
signals the need for a judicious and careful handling as
shown by the process required to initiate the
proceeding;56 the one-year limitation or bar for its
initiation;57 the limited grounds for impeachment;58 the
defined instrumentality given the power to try
impeachment cases;59 and the number of votes
required for a finding of guilt.60 All these argue against
the extension of this removal mechanism beyond those
mentioned in the Constitution.
On the practical side, our nation has witnessed the
complications and problems an impeachment
proceeding entails, thus justifying its limited application
only to the officials occupying the highest echelons of
responsibility in our government. To name a few, some
of the negative practical effects of impeachment are: it
stalls legislative work; it is an expensive process in
terms of the cost of prosecution alone; and, more
importantly, it is inherently divisive of the
nation.61 Thus, in a cost-benefit analysis of adopting
impeachment as a mechanism, limiting Congress’ power
to otherwise legislate on the matter is far more
advantageous to the country.
It is in these lights that the second sentence in Section
2, Article XI of the 1987 Constitution should be read.
Contrary to the implied view of the minority, in no way
can this provision be regarded as blanket authority for
Congress to provide for any ground of removal it deems
fit. While the manner and cause of removal are left to
congressional determination, this must still be
consistent with constitutional guarantees and
principles, namely: the right to procedural and
substantive due process; the constitutional guarantee
of security of tenure; the principle of separation of
powers; and the principle of checks and balances.62
In short, the authority granted by the Constitution to
Congress to provide for the manner and cause of
removal of all other public officers and employees does
not mean that Congress can ignore the basic principles
and precepts established by the Constitution.
In the same manner, the congressional determination
of the identity of the disciplinary authority is not a
blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul of
the independence enjoyed by the Office of the
Ombudsman and without disrupting the delicate check
and balance mechanism under the Constitution.
Properly viewed from this perspective, the core
constitutional principle of independence is observed
and any possible absurdity resulting from a contrary
interpretation is avoided. In other words, while the
Constitution itself vested Congress with the power to
determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted
consistent with the core constitutional principle of
independence of the Office of the Ombudsman. Our
observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article IX-
A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be
"independent."
While one may argue that the grounds for
impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy
Ombudsman and Special Prosecutor – since these
grounds are not intended to cover all kinds of official
wrongdoing and plain errors of judgment - this
argument seriously overlooks the erosion of the
independence of the Office of the Ombudsman that it
creates. The mere fact that a statutorily-created sword
of Damocles hangs over the Deputy Ombudsman’s
head, by itself, opens up all the channels for external
pressures and influence of officialdom and partisan
politics. The fear of external reprisal from the very
office he is to check for excesses and abuses defeats the
very purpose of granting independence to the Office of
the Ombudsman.
That a judicial remedy is available (to set aside
dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman
committed an impeachable offense) and that the
President’s power of removal is limited to specified
grounds are dismally inadequate when balanced with
the constitutional principle of independence. The mere
filing of an administrative case against the Deputy
Ombudsman and the Special Prosecutor before the OP
can already 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, if 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 any rate, even assuming that the OP has disciplinary
authority over the Deputy Ombudsman, its decision
finding Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust is
patently erroneous. The OP’s decision perfectly
illustrates why the requirement of impeachment-
grounds in Section 8(2) of RA No. 6770 cannot be
considered, even at a minimum, a measure of
protection of the independence of the Office of the
Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross
Neglect of Duty and of Grave Misconduct. The assailed
Decision of the OP reads:
Upon consideration of the First Report, the evidence
and allegations of respondent Deputy Ombudsman
himself, and other documentary evidence gathered, this
Office finds that the inordinate and unjustified delay in
the resolution of Captain Mendoza’s Motion for
Reconsideration timely filed on 5 November 2009 xxx
amounted to gross neglect of duty and/or inefficiency in
the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for
Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to
the Motion for Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was
assigned to review these motions and make his
recommendation for the appropriate action, received
the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to
be reviewed by his immediate superior, Dir. Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to
Gonzales this draft order;69
5. May 6, 2010 (or nine days after the records were
forwarded to Gonzales) – Gonzales endorsed the draft
order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on
August 23, 2010, the records of the case were already
pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by
the want of even the slightest care, acting or omitting to
act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally, with a
conscious indifference to consequences insofar as other
persons may be affected. In the case of public officials,
there is gross negligence when a breach of duty is
flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty
and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales
guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of
the Office of the Ombudsman, series of 1990, as
amended) in ruling that Gonzales should have acted on
Mendoza’s Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or
reinvestigation: Grounds – Whenever allowable, a
motion for reconsideration or reinvestigation may only
be entertained if filed within ten (10) days from receipt
of the decision or order by the party on the basis of any
of the following grounds:
a) New evidence had been discovered which materially
affects the order, directive or decision;
b) Grave errors of facts or laws or serious irregularities
have been committed prejudicial to the interest of the
movant.
Only one motion for reconsideration or reinvestigation
shall be allowed, and the Hearing Officer shall resolve
the same within five (5) days from the date of
submission for resolution. [emphasis and underscore
ours]
Even if we consider this provision to be mandatory, the
period it requires cannot apply to Gonzales since he is a
Deputy Ombudsman whose obligation is to review the
case; he is not simply a Hearing Officer tasked with the
initial resolution of the motion. In Section 6 of
Administrative Order No. 7 on the resolution of the case
and submission of the proposed decision, the period for
resolving the case does not cover the period within
which it should be reviewed:
Section 6. Rendition of decision. – Not later than thirty
(30) days after the case is declared submitted for
resolution, the Hearing Officer shall submit a proposed
decision containing his findings and recommendation
for the approval of the Ombudsman. Said proposed
decision shall be reviewed by the Directors, Assistant
Ombudsmen and Deputy Ombudsmen concerned. With
respect to low ranking public officials, the Deputy
Ombudsman concerned shall be the approving
authority. Upon approval, copies thereof shall be served
upon the parties and the head of the office or agency of
which the respondent is an official or employee for his
information and compliance with the appropriate
directive contained therein. [italics and emphases
supplied]
Thus, the OP’s ruling that Gonzales had been grossly
negligent for taking nine days, instead of five days, to
review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his
subordinates to promptly act on Mendoza’s motion and
apprised the Tanodbayan of the urgency of resolving
the same are similarly groundless.
The Office of the Ombudsman is not a corner office in
our bureaucracy. It handles numerous cases that
involve the potential loss of employment of many other
public employees. We cannot conclusively state, as the
OP appears to suggest, that Mendoza’s case should
have been prioritized over other similar cases.
The Court has already taken judicial notice of the steady
stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates
against the OSG’s observation that there was "a grossly
inordinate and inexcusable delay"74 on the part of
Gonzales.
Equally important, the constitutional guarantee of
"speedy disposition of cases" before, among others,
quasi-judicial bodies,75 like the Office of the
Ombudsman, is itself a relative concept.76 Thus, the
delay, if any, must be measured in this objective
constitutional sense. Unfortunately, because of the very
statutory grounds relied upon by the OP in dismissing
Gonzales, the political and, perhaps, "practical"
considerations got the better of what is legal and
constitutional.
The facts do not show that Gonzales’ subordinates had
in any way been grossly negligent in their work. While
GIPO Garcia reviewed the case and drafted the order
for more than three months, it is noteworthy that he
had not drafted the initial decision and, therefore, had
to review the case for the first time.77 Even the
Ombudsman herself could not be faulted for acting on a
case within four months, given the amount of cases that
her office handles.
The point is that these are not inordinately long periods
for the work involved: examination of the records,
research on the pertinent laws and jurisprudence, and
exercise of legal judgment and discretion. If this Court
rules that these periods per se constitute gross neglect
of duty, the Ombudsman’s constitutional mandate to
prosecute all the erring officials of this country would
be subjected to an unreasonable and overwhelming
constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we
must be prepared to reconcile this with the established
concept of the right of speedy disposition of cases –
something the Court may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue
interest in Mendoza’s case by having the case endorsed
to the Office of the Ombudsman and by resolving it
against Mendoza on the basis of the unverified
complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to
his office lies within his mandate, even if it were based
merely on the request of the alleged victim’s father. The
Constitution empowers the Ombudsman and her
Deputies to act promptly on complaints filed in any
form or manner against any public official or employee
of the government.78 This provision is echoed by Section
13 of RA No. 6770,79 and by Section 3, Rule III of
Administrative Order No. 7, series of 1990, as
amended.80
Moreover, Gonzales and his subordinates did not
resolve the complaint only on the basis of the unverified
affidavit of Kalaw. Based on the prosecution officer’s
recommendations, the finding of guilt on the part of
Mendoza, et al. was based on their admissions as well.
Mendoza, et al. admitted that they had arrested Kalaw
based on two traffic violations and allowed him to stay
the whole night until the following morning in the police
precinct. The next morning, Kalaw was allowed to leave
the precinct despite his failure to show a valid license
and based merely on his promise to return with the
proper documents.81 These admissions led Gonzales
and his staff to conclude that Mendoza, et al. irregularly
acted in apprehending Kalaw, since the proper
procedure for the apprehension of traffic violators
would be to give them a ticket and to file a case, when
appropriate.82
Lastly, we cannot deduce undue interest simply because
Gonzales’ decision differs from the decision of the PNP-
IAS (which dismissed the complaint against Mendoza).
To be sure, we cannot tie the hands of any judicial or
quasi-judicial body by ruling that it should always
concur with the decisions of other judicial or quasi-
judicial bodies which may have also taken cognizance of
the case. To do so in the case of a Deputy Ombudsman
would be repugnant to the independence that our
Constitution has specifically granted to this office and
would nullify the very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against
Gonzales, the penalty of removal imposed by the OP
necessarily suffers grave infirmity. Basic strictures of fair
play dictate that we can only be held liable for our own
misdeeds; we can be made to account only for lapses in
our responsibilities. It is notable that of all the officers,
it was Gonzales who took the least time — nine days —
followed by Cecilio, who took 21 days; Garcia — the
writer of the draft — took less than four months, and
the Ombudsman, less than four months until the
kidnapping incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and
patently wrong. This conclusion, however, does not
preclude the Ombudsman from looking into any other
possible administrative liability of Gonzales under
existing Civil Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent
Office of the Ombudsman. The existing Tanodbayan at
the time83 became the Office of the Special Prosecutor
under the 1987 Constitution. While the composition of
the independent Office of the Ombudsman under the
1987 Constitution does not textually include the Special
Prosecutor, the weight of the foregoing discussions on
the unconstitutionality of Section 8(2) of RA No. 6770
should equally apply to the
Special Prosecutor on the basis of the legislative history
of the Office of the Ombudsman as expounded in
jurisprudence.
Under the 1973 Constitution,84 the legislature was
mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and
prosecutorial powers. Accordingly, on June 11, 1978,
President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special
Prosecutor" (CSP) was given the "exclusive authority" to
conduct preliminary investigation and to prosecute
cases that are within the jurisdiction of the
Sandiganbayan.87 PD No. 1486 expressly gave the
Secretary of Justice the power of control and
supervision over the Special Prosecutor.88 Consistent
with this grant of power, the law also authorized the
Secretary of Justice to appoint or detail to the Office of
the CSP "any officer or employee of Department of
Justice or any Bureau or Office under the executive
supervision thereof" to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back
to the Tanodbayan the powers taken away from it by
the Office of the CSP. The law "created in the Office of
the Tanodbayan an Office of the Chief Special
Prosecutor" under the Tanodbayan’s control,90 with the
exclusive authority to conduct preliminary investigation
and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also
empowered the Tanodbayan to appoint Special
Investigators and subordinate personnel and/or to
detail to the Office of the CSP any public officer or
employees who "shall be under the supervision and
control of the Chief Special Prosecutor."91 In 1979, PD
No. 1630 further amended the earlier decrees by
transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987
Constitution was ratified. Under the 1987 Constitution,
an "independent Office of the Ombudsman" is
created.93 The existing Tanodbayan is made the Office
of the Special Prosecutor, "who shall continue to
function and exercise its powers as now94 or hereafter
may be provided by law."95
Other than the Ombudsman’s Deputies, the
Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section
13(8), Article XI of the 1987 Constitution provides that
the Ombudsman may exercise "such other powers or
perform such functions or duties as may be provided by
law." Pursuant to this constitutional command,
Congress enacted RA No. 6770 to provide for the
functional and structural organization of the Office of
the Ombudsman and the extent of its disciplinary
authority.
In terms of composition, Section 3 of RA No. 6770
defines the composition of the Office of the
Ombudsman, including in this Office not only the offices
of the several Deputy Ombudsmen but the Office of the
Special Prosecutor as well. In terms of appointment, the
law gave the President the authority to appoint the
Ombudsman, his Deputies and the Special Prosecutor,
from a list of nominees prepared by the Judicial and Bar
Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3)
months from occurrence.97
The law also imposes on the Special Prosecutor the
same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of
office,99 prohibitions and qualifications,100 rank and
salary are likewise the same.101 The requirement on
disclosure102 is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case of
vacancy in the Office of the Ombudsman, the Overall
Deputy cannot assume the role of Acting Ombudsman;
the President may designate any of the Deputies or the
Special Prosecutor as Acting Ombudsman.103 The power
of the Ombudsman and his or her deputies to require
other government agencies to render assistance to the
Office of the Ombudsman is likewise enjoyed by the
Special Prosecutor.104
Given this legislative history, the present overall legal
structure of the Office of the Ombudsman, both under
the 1987 Constitution and RA No. 6770, militates
against an interpretation that would insulate the
Deputy Ombudsman from the disciplinary authority of
the OP and yet expose the Special Prosecutor to the
same ills that a grant of independence to the Office of
the Ombudsman was designed for.
Congress recognized the importance of the Special
Prosecutor as a necessary adjunct of the Ombudsman,
aside from his or her deputies, by making the Office of
the Special Prosecutor an organic component of the
Office of the Ombudsman and by granting the
Ombudsman control and supervision over that
office.105 This power of control and supervision includes
vesting the Office of the Ombudsman with the power to
assign duties to the Special Prosecutor as he/she may
deem fit.1âwphi1 Thus, by constitutional design, the
Special Prosecutor is by no means an ordinary
subordinate but one who effectively and directly aids
the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the
Executive Department.
Under Section 11(4) of RA No. 6770, the Special
Prosecutor handles the prosecution of criminal cases
within the jurisdiction of the Sandiganbayan and this
prosecutorial authority includes high-ranking executive
officials. For emphasis, subjecting the Special
Prosecutor to disciplinary and removal powers of the
President, whose own alter egos and officials in the
Executive Department are subject to the prosecutorial
authority of the Special Prosecutor, would seriously
place the independence of the Office of the
Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not
expressly made part of the composition of the Office of
the Ombudsman, the role it performs as an organic
component of that Office militates against a differential
treatment between the Ombudsman’s Deputies, on one
hand, and the Special Prosecutor himself, on the other.
What is true for the Ombudsman must be equally true,
not only for her Deputies but, also for other lesser
officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was
confronted with an argument that, at bottom, the
Office of the Special Prosecutor is not a subordinate
agency of the Office of the Ombudsman and is, in fact,
separate and distinct from the latter. In debunking that
argument, the Court said:
Firstly, the petitioners misconstrue Commissioner
Romulo's statement as authority to advocate that the
intent of the framers of the 1987 Constitution was to
place the Office of the Special Prosecutor under the
Office of the President. Xxx
In the second place, Section 7 of Article XI expressly
provides that the then existing Tanodbayan, to be
henceforth known as the Office of the Special
Prosecutor, "shall continue to function and exercise its
powers as now or hereafter may be provided by law,
except those conferred on the Office of the
Ombudsman created under this Constitution." The
underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then that
Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it
other powers, except those powers conferred by the
Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one
considers that by express mandate of paragraph 8,
Section 13, Article XI of the Constitution, the
Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law,"
it is indubitable then that Congress has the power to
place the Office of the Special Prosecutor under the
Office of the Ombudsman.107

Thus, under the present Constitution, there is every

reason to treat the Special Prosecutor to be at par with
the Ombudsman's deputies, at least insofar as an
extraneous disciplinary authority is concerned, and
must also enjoy the same grant of independence under
the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-

7,108 the Court resolved to reverse its September 4,
2012 Decision insofar as petitioner Gonzales is
concerned (G.R. No. 196231). We declared Section 8(2)
of RA No. 6770 unconstitutional by granting disciplinary
jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the
Office of the Ombudsman.

However, by another vote of 8-7,109 the Court resolved

to maintain the validity of Section 8(2) of RA No. 6770
insofar as Sulit is concerned. The Court did not consider
the Office of the Special Prosecutor to be
constitutionally within the Office of the Ombudsman
and is, hence, not entitled to the independence the
latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves

to declare Section 8(2) UNCONSTITUTIONAL. This ruling
renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is
without prejudice to the power of the Ombudsman to
conduct an administrative investigation, if warranted,
into the possible administrative liability of Deputy
Ombudsman Emilio Gonzales III under pertinent Civil
Service laws, rules and regulations.