V. LAW ON PUBLIC OFFICERS A. ELIGIBILITY AND QUALIFICATION OF PUBLIC OFFICERS 1. CAASI V.

COURT OF APPEALS These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC dismissing the three (3) petitions of Anecito Cascante for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988. G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision of the Court of Appeals dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. After hearing the consolidated petitions before it, the COMELEC dismissed the petitions on the ground that: The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. Thereafter the Court of Appeals held: ... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. Issues: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

Section 18, Article XI of the 1987 Constitution provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC). Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides. This is in return for the protection given to him during the period of his residence therein. Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: xxx xxx xxx Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.' Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to

Held: The election of respondent Miguel is annulled.

filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. -Seijo 2. FRIVALDO V. COMMISSION ON ELECTIONS DOCTRINE: While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. FACTS: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the special and affirmative defenses that he had

sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition for certiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code. Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review.

Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. ISSUE: Whether or not Juan G. Frivaldo was a natural born citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. HELD: The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "naturalborn" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open

the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love. WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected ViceGovernor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. -John Ryan 3. MERCADO V. MANZANO Facts: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano Ernesto S. Mercado Gabriel V. Daza III 103,853 100,894 54,275

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998, the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELECs Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City. However Commission en banc hereby REVERSES the resolution of the Second Division declaring that respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections. Issue: Whether under our laws, Is he eligible for the office he seeks to be elected. Ruling:

(3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent effectively renounced his U.S. citizenship under American law, so that now he is solely a Philippine national. There is, therefore, no merit in petitioners contention that the oath of allegiance contained in private respondents certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioners contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar v. COMELEC applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be express, it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either express or implied. To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for any elective local position: . . . (d) Those with dual citizenship. This provision is incorporated in the Charter of the City of Makati. Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through 40(d) of the Local Government Code, Congress has command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country;

-Jason Tan 4. LIMKAICHONG V. COMMISSION ON ELECTIONS

10. COMELEC 2nd division: granted the petitions in the disqualification cases, disqualified
Limkaichong directed Provincial Board of Canvassers (PBOC) to suspend her proclamation.

PERALTA, J.: Once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the jurisdiction of the House of Representatives Electoral Tribunal begins over election contests relating to his election, returns, and qualifications, and mere allegation as to the invalidity of her proclamation does not divest the Electoral Tribunal of its jurisdiction. FACTS:

1. 2. 3.

(March 26, 2007) Limkaichong filed with the COMELEC her Certificate of Candidacy (COC) for the position of Representative of the First District of Negros Oriental. (2) petitions for her disqualification were instituted before the COMELEC by concerned citizens coming from her locality. (April 4, 2007) Napoleon Camero, a registered voter of La Libertad, Negros Oriental, filed the petition for her disqualification (ground: she lacked the citizenship requirement of a Member of the HoR)

Petitioners have successfully discharged their burden of proof and has convincingly shown with pieces of documentary evidence that Julio Ong Sy, father of herein respondent Jocelyn Sy-Limkaichong, failed to acquire Filipino citizenship in the naturalization proceedings. Office of the Solicitor General was deprived of its participation in all the stages of the proceedings therein, as required under CA No. 473 or the Revised Naturalization Law and RA No. 530, An Act Making Additional Provisions for Naturalization. this was fatal to the naturalization proceedings of Julio Ong Sy, and prevented the same from gaining finality. the Supreme Court in the same case of Republic v. Valero, supra:That private respondent Tan had already taken his oath of allegiance does not in any way legalize the proceedings relative thereto which is pregnant with legal infirmities. Compounding these irregularities is the fact that Tan was allowed to take his oath even before the expiration of the thirty (30)-day period within which an appeal may be made thus making the said oath not only highly improper but also illegal. Another glaring defect in the said proceedings was the fact that Julio Ong Sy took his Oath of Allegiance on October 21, 1959, which was exactly thirty (30) days after his declaration as a naturalized Filipino.

CONTEN: she is not a natural-born Filipino because her parents were Chinese citizens at the time of her birth.

- Even granting that the OSG was notified of the September 21, 1959 Order, this was still one day short of the reglementary period required under Sections 11 and 12 of C.A. No. 473, above-cited. The thirty-day reglementary period is so required under the law so that the OSG could make known his objections and to appeal from the order of the trial court declaring the petitioner a naturalized Filipino citizen. This is also the reason why a copy of the petitioners motion to take his oath of allegiance has to be furnished to the OSG. OSG, being the counsel for the government, has to participate in all the proceedings so that it could be bound by what has transpired therein. Lacking the participation of this indispensable party to the same, the proceedings are null and void and, hence, no rights could arise therefrom. From all the foregoing, therefore, it could be seen that Julio Ong Sy did not acquire Filipino citizenship through the naturalization proceedings in Special Case No. 1043. Thus, he was only able to transmit to his offspring, Chinese citizenship. Respondent Jocelyn Sy-Limkaichong being the daughter of Julio Ong Sy, and having been born on November 9, 1959, under the 1935 Philippine Constitution, is a Chinese national, and is disqualified to run as First District Representative of Negros Oriental.

4.

(April 11, 2007) Renald F. Villando, also a registered voter, filed the second petition (same ground of citizenship)

CONTEN: when Limkaichong was born, her parents were still Chinese citizens as the proceedings for the naturalization of Julio Ong Sy, her father, never attained finality due to procedural and substantial defects.

5. 6.

7. 8. 9.

Both petitions prayed for the cancellation of Limkaichong's COC and for the COMELEC to strike out her name from the list of qualified candidates. Limkaichong CONTEN: that she is a natural-born Filipino since she was born to a naturalized Filipino father and a natural-born Filipino mother, who had reacquired her status as such due to her husband's naturalization. Thus, at the time of her birth on November 9, 1959, nineteen (19) days had already passed after her father took his Oath of Allegiance on October 21, 1959 and after he was issued a Certificate of Naturalization on the same day. that the COMELEC should dismiss the petitions outright for lack of cause of action. Citing Salcedo II v. Commission on Elections, she averred that a petition filed before an election, questioning the qualification of a candidate, should be based on Section 78, in relation to Section 74 of the Omnibus Election Code (OEC), and not under Sections 68 and 74 thereof in relation to Section 1, Rule 25 of the COMELEC Rules of Procedure and Section 5, paragraph C (3.a) of COMELEC Resolution No. 7800. COMELEC: consolidated 2 petitions entitled IN THE MATTER OF THE PETITION TO (the disqualification cases), which remained pending on May 14, 2007, when the National and Local Elections were conducted. Limkaichong emerged as the winner (65,708 votes)over another congressional candidate, Olivia Paras (Paras) (57,962) Paras filed with the COMELEC a Very Urgent Motion for Leave to Intervene and to Suspend the Proclamation of Jocelyn Sy Limkaichong as Winning Candidate of the First District of Negros Oriental.

11. COMELEC En Banc issued Resolution No. 8062 adopting the policy-guidelines of not
suspending the proclamation of winning candidates with pending disqualification cases which shall be without prejudice to the continuation of the hearing and resolution of the involved cases. 12. PBOC in compliance with COMELEC Resolution No. 8062, reconvened and proclaimed Limkaichong as the duly elected Member of the House of Representatives for the First District of Negros Oriental. 13. Paras filed with the COMELEC a Petition to Nullify and/or Annul the Proclamation of stating, among others, that Limkaichongs proclamation violated the earlier order of the COMELEC Second Division suspending her proclamation. The petition, docketed as SPC No. 07-211, was dismissed by the COMELEC First Division, ratiocinating that the disqualification cases were not yet final when Limkaichong was proclaimed. Accordingly, her proclamation

which was valid or legal, effectively divested the COMELEC of its jurisdiction over the cases. The COMELEC First Division explained its ruling in this wise: The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall be no suspension of proclamation of winning candidates with pending disqualification cases involving, among others, issues of citizenship. As the disqualification cases involving Limkaichong were still pending reconsideration by the en banc, the underlying policy which gave rise to the issuance of the Resolution: to respect the will of the Filipino electorate, applies to the suspension of proclamation of the winning congressional candidate for the First District of Negros Oriental. 14. COMELEC En Banc divided vote of 3:3, denied Limkaichongs motion for reconsideration of the Joint Resolution of the COMELEC Second Division in the disqualification cases.

1. Whether the proclamation of Limkaichong by the Provincial Board of Canvassers of Negros Oriental is valid; 2. Whether the House of Representatives Electoral Tribunal shall assume jurisdiction, in lieu of the COMELEC, over the issue of Limkaichong's citizenship; 3. Whether the COMELEC disqualification of Limkaichong is final and executory; and, 4. Whether the Speaker of the House of Representatives may be compelled to prohibit Limkaichong from assuming her duties as a Member of the House of Representatives. HELD: Section 6, Article VI of the 1987 Philippine Constitution provides for the qualification of a Member of the House of Representatives, thus: Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election. When Limkaichong filed her COC, she stated therein that she is a natural-born Filipino citizen. It was not true, according to the petitioners in the disqualification cases, because her father remained a Chinese citizen at the time of her birth. The COMELEC Second Division has sided with Camero and Villando, and disqualified Limkaichong to run as a congressional candidate in the First District of Negros Oriental for having failed to comply with the citizenship requirement. Accordingly, her proclamation was ordered suspended notwithstanding that she obtained the highest number of votes during the elections. Nonetheless, she was proclaimed by the PBOC pursuant to the policy guidelines of COMELEC En Banc Resolution No. 8062, and she has since assumed her position and performed her functions as a Member of the House of Representatives. I. Whether Limkaichongs proclamation was valid. The proclamation of Limkaichong was valid. The COMELEC Second Division rendered its Joint Resolution dated May 17, 2007. On May 20, 2007, Limkaichong timely filed with the COMELEC En Banc her motion for reconsideration as well as for the lifting of the incorporated directive suspending her proclamation. The filing of the motion for reconsideration effectively suspended the execution of the May 17, 2007 Joint Resolution. Since the execution of the May 17, 2007 Joint Resolution was suspended, there was no impediment to the valid proclamation of Limkaichong as the winner. Section 2, Rule 19 of the COMELEC Rules of Procedure provides: Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order or ruling of a Division shall be filed within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the execution for implementation of the decision, resolution, order and ruling. Resolution No. 8062 is a valid exercise of the COMELECs constitutionally mandated power to promulgate its own rules of procedure relative to the conduct of the elections. In adopting such policyguidelines for the May 14, 2007 National and Local Elections, the COMELEC had in mind the objective of upholding the sovereign will of the people and in the interest of justice and fair play. Accordingly, those candidates whose disqualification cases are still pending at the time of the elections, should they obtain the highest number of votes from the electorate, shall be proclaimed but that their proclamation shall be without prejudice to the continuation of the hearing and resolution of the involved cases. Whereas, in this case, the COMELEC Second Division having failed to act on the disqualification cases

the Commission has jurisdiction to rule on Respondent Limkaichongs MR notwithstanding her proclamation as it is only this Commission, and not the HRET, which has jurisdiction to review resolutions or decisions of the COMELEC, whether issued by a division or en banc. As stated by the SC in the leading case of Codilla v. De Venecia, G.R. No. 150605, December 10, 2002, respondent herself seasonably challenged the validity of the resolution of the Second Division in her motion for reconsideration. Hence, the issue of respondents disqualification was still within the exclusive jurisdiction of the Comelec En Banc to resolve, and HRET cannot assume jurisdiction on the matter.

14. Limkaichong filed in the disqualification cases against her a Manifestation and Motion for
Clarification and/or To Declare the Petitions as Dismissed in Accordance with Section 6, Rule 18 of the COMELEC Rules of Procedure. CONTEN: her having taken her oath of office and her assumption of the position, the COMELEC was divested of jurisdiction to hear the disqualification cases. - that, following Section 6, Rule 18 of the COMELEC Rules of Procedure, the disqualification cases would have to be reheard, and if on rehearing, no decision would be reached, the action or proceedings should be dismissed, because the COMELEC En Banc was equally divided in opinion when it resolved her motion for reconsideration. 15. Despite Limkaichongs repeated pleas for the resolution of her manifestation and motion for clarification, the COMELEC did not resolve the same. Hence, she filed with this Court a Petition for Certiorari praying for the annulment of the Joint Resolution of the COMELEC Second Division and the Resolution of the COMELEC En Banc in the disqualification cases. CONTEN: since she was already proclaimed on May 25, 2007, had assumed office on June 30, 2007, and had started to perform her duties and functions as such, the COMELEC had lost its jurisdiction and it is now the HRET which has jurisdiction over any issue involving her qualifications for the said office. 16. COMELEC En Banc ruled on Limkaichongs manifestation and motion for clarification, with the following disquisition: this Commission rules that all pending incidents relating to the qualifications of Limkaichong should now be determined by the House of Representatives Electoral Tribunal ISSUE: Whether respondent Jocelyn Sy-Limkaichong is disqualified to run for the congressional seat of the First District of Negros Oriental on the ground that she is not a natural-born Filipino

against Limkaichong until after the conduct of the elections, with her obtaining the highest number of votes from the electorate, her proclamation was properly effected by the PBOC pursuant to Resolution No. 8062. The Court has held in the case of Planas v. COMELEC, that at the time of the proclamation of Defensor, the respondent therein who garnered the highest number of votes, the Division Resolution invalidating his certificate of candidacy was not yet final. As such, his proclamation was valid or legal, as he had at that point in time remained qualified. Limkaichongs situation is no different from that of Defensor, the former having been disqualified by a Division Resolution on the basis of her not being a natural-born Filipino citizen. When she was proclaimed by the PBOC, she was the winner during the elections for obtaining the highest number of votes, and at that time, the Division Resolution disqualifying her has not yet became final as a result of the motion for reconsideration. II Whether, upon Limkaichong's proclamation, the HRET, instead of the COMELEC, should assume jurisdiction over the disqualification cases. YES. The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. It follows then that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning his qualification should now present his case in a proper proceeding before the HRET, the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives with respect to the latter's election, returns and qualifications. The use of the word "sole" in Section 17, Article VI of the Constitution and in Section 250 of the OEC underscores the exclusivity of the Electoral Tribunals' jurisdiction over election contests relating to its members. Section 17, Article VI of the 1987 Constitution provides: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as amended, which states: RULE 14. Jurisdiction. - The Tribunal is the sole judge of all contests relating to the election, returns, and qualifications of the Members of the House of Representatives. Worth citing also is the ratiocination of the COMELEC First Division when it dismissed the petition of Paras seeking the nullity of Limkaichong's proclamation, thus: The present situation is similar not to the factual circumstances of Codilla, which Paras invokes, but rather to that in Planas which adheres to the general rule giving jurisdiction to the House of Representatives Electoral Tribunal. As at the time of Limkaichong's proclamation, her disqualification was not yet final, her proclamation was valid or legal. This Commission no longer has jurisdiction over the case. This, notwithstanding the Second Division's directive suspending Limkaichong's proclamation. The Commission has made its intention in issuing Resolution No. 8062 very clear in that there shall be no suspension of proclamation of winning candidates with pending disqualification cases, involving, among

others, issues of citizenship. As the disqualification cases involving Limkaichong were still pending reconsideration by the En Banc, the underlying policy which gave rise to the issuance of the resolution: to respect the will of the Filipino electorate, applies to the suspension of proclamation of the winning Congressional candidate for the First District of Negros Oriental. x x x [I]n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the people's mandate. In fine, any allegations as to the invalidity of the proclamation will not prevent the HRET from assuming jurisdiction over all matters essential to a members qualification to sit in the House of Representatives. In Frivaldo v. Commission on Elections,67 the Court held that: The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office as governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officers entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have the right to remain in office simply because the challenge to her title may not longer be made within ten days from her proclamation? x x x This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country alone, abjuring and renouncing all fealty to any other state. Clearly, under law and jurisprudence, it is the State, through its representatives designated by statute, that may question the illegally or invalidly procured certificate of naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private persons in an election case involving the naturalized citizens descendant. III Whether the COMELEC's disqualification of Limkaichong is final and executory. The May 17, 2007 Joint Resolution of the COMELEC Second Division disqualifying Limkaichong and suspending her proclamation cannot yet be implemented considering that she timely filed a motion for reconsideration. Thus, pursuant to Section 13(c), Rule 18 and Section 2 Rule 19 of the COMELEC Rules of Procedure, the Joint Resolution has not yet attained finality for it to be implemented. Notably, the seeming impropriety of the Resolution of the COMELEC En Banc dated June 29, 2007 has since been remedied by the promulgation of its Resolution dated August 16, 2007, recognizing that it no longer has jurisdiction over the disqualification cases following the valid proclamation of Limkaichong and her assumption of office as a Member of the House of Representatives.

IV Whether the Speaker of the House of Representatives may be compelled to prohibit Limkaichong from assuming her duties as a Member of the House of Representatives. 6. The unseating of a Member of the House of Representatives should be exercised with great caution and after the proper proceedings for the ouster has been validly completed. For to arbitrarily unseat someone, who obtained the highest number of votes in the elections, and during the pendency of the proceedings determining ones qualification or disqualification, would amount to disenfranchising the electorate in whom sovereignty resides. WHEREFORE, premises considered, the petition in G.R. Nos. 178831-32 is GRANTED and the Joint Resolution of the COMELEC Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 is REVERSED and SET ASIDE. All the other petitions (G.R. Nos. 179120, 179132-33, 179240 -Jean B. LIABILITIES OF PUBLIC OFFICERS 1. COJUANGCO V. COURT OF APPEALS FACTS: 1. Plaintiff [herein petitioner] is a known businessman-sportsman owning several racehorses which he entered in the sweepstakes races between the periods covering March 6, 1986 to September 18, 1989. 7. As culled from the pleadings of the parties, Atty. Estelito P. Mendoza, petitioner's counsel, refused to accept the prizes at this point, reasoning that the matter had already been brought to court.

Ruling of the Trial Court:

The trial court ruled that Respondent Philippine Charity Sweepstakes Office (PCSO) and its then chairman, Respondent Fernando O. Carrascoso Jr., had no authority to withhold the subject racehorse winnings of petitioner, since no writ of sequestration therefor had been issued by the Presidential Commission on Good Government (PCGG). It held that it was Carrascoso's unwarranted personal initiative not to release the prizes. Having been a previous longtime associate of petitioner in his horse racing and breeding activities, he had supposedly been aware that petitioner's winning horses were not illgotten. The trial court held that, by not paying the winnings, Carrascoso had acted in bad faith amounting to the persecution and harassment of petitioner and his family. 6 It thus ordered the PCSO and Carrascoso to pay in solidum petitioner's claimed winnings plus interests. It further ordered Carrascoso to pay moral and exemplary damages, attorney's fees and costs of suit.1 8. Ruling of the Court of Appeals:

Before the appellate court, herein private respondents assigned the following errors: 8 In reversing the trial court's finding of bad faith on the part of Carrascoso, the Court of Appeals held that the former PCSO chairman was merely carrying out the instruction of the PCGG in regard to the prize winnings of petitioner. It noted that, at the time, the scope of the sequestration of the properties of former President Ferdinand E. Marcos and his cronies was not well-defined. The Court of Appeals also noted that the following actuations of Carrascoso negated bad faith: (1) he promptly replied to petitioner's demand for the release of his prizes, citing PCGG's instruction to withhold payment thereof; (2) upon PCGG's subsequent advice to release petitioner's winnings, he immediately informed petitioner thereof; and (3) he interposed no objection to the partial execution, pending appeal, of the RTC decision. Court of Appeals reversed the RTC decision. ISSUE:

2.

Several of his horses won the races on various dates, landing first, second or third places, respectively, and winning prizes together with the 30% due for trainer/grooms which are itemized as follows:

3.

Petitioner sent letters of demand to the defendants [herein private respondents] for the collection of the prizes due him.

4.

And [herein private respondents] consistently replied. (Exhibits 2 and 3) that the demanded prizes are being withheld on advice of Commissioner Ramon A. Diaz of the Presidential Commission on Good Government.

Whether the award for damages against respondent Carrascoso, Jr. is warranted by evidence and the law. RULING:

5.

Finally on January 30, 1991; this case was filed before the Regional Trial Court of Manila. But before receipt of the summons on February 7, Presidential Commission on Good Government advised defendants that "if poses no more objection to the remittance of the prize winnings" (Exh. 6) to [herein petitioner]. Immediately, this was communicated to Atty. Estelito Mendoza by [Private Respondent Fernando] Carrascoso [Jr.]. 5

Petitioner insists that the Court of Appeals erred in reversing the trial court's finding that Respondent Carrascoso acted in bad faith in withholding his winnings. We do not think so.

Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty due to some motive or interest or ill will that partakes of the nature of fraud. Carrascoso's decision to withhold petitioner's winnings could not be characterized as arbitrary or whimsical, or even the product of ill will or malice. He had particularly sought from PCGG a clarification of the extent and coverage of the sequestration order issued against the properties of petitioner. 30 He had acted upon the PCGG's statement that the subject prizes were part of those covered by the sequestration order and its instruction "to hold in a proper bank deposits [sic] earning interest the amount due Mr. Cojuangco." 31 Besides, EO 2 had just been issued by then President Aquino," freez[ing] all assets and properties in the Philippines [of] former President Marcos and/or his wife, . . . their close friends, subordinates, business associates . . ."; and enjoining the "transfer, encumbrance, concealment, or dissipation [thereof], under pain of such penalties as prescribed by law." It cannot, therefore, be said that Respondent Carrascoso, who relied upon these issuances, acted with malice or bad faith. The extant rule is that a public officer shall not be liable by way of moral and exemplary damages for acts done in the performance of official duties, unless there is a clear showing of bad faith, malice or gross negligence. Attorney's fees and expenses of litigation cannot be imposed either, in the absence of a clear showing of any of the grounds provided therefor under the Civil Code. The trial court's award of these kinds of damages must perforce be deleted, as ruled by the Court of Appeals. Nevertheless, this Court agrees with the petitioner and the trial that Respondent Carrascoso may still be held liable under Article 32 of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstruct, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx xxx xxx (6) The rights against deprivation of property without due process of law; xxx xxx xxx In Aberca v. Ver, 34 this Court explained the nature and the purpose of this article as follows: It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield borrowing the words of Chief Justice Claudio Teehankee to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The

rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls." 35 Under the aforecited article, it is not necessary that the public officer acted with malice or bad faith. 36 To be liable, it is enough that there was a violation of the constitutional rights of petitioner, even on the pretext of justifiable motives or good faith in the performance of one's duties. 37 We hold that petitioner's right to the use of his property was unduly impeded. While Respondent Carrascoso may have relied upon the PCGG's instructions, he could have further sought the specific legal basis therefor. A little exercise of prudence would have disclosed that there was no writ issued specifically for the sequestration of the racehorse winnings of petitioner. There was apparently no record of any such writ covering his racehorses either. The issuance of a sequestration order requires the showing of a prima facie case and due regard for the requirements of due process. 38 The withholding of the prize winnings of petitioner without a properly issued sequestration order clearly spoke of a violation of his property rights without due process of law. Art. 2221 of the Civil Code authorizes the award of nominal damages to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, not for indemnifying the plaintiff for any loss suffered. 39 The court may also award nominal damages in every case where a property right has been invaded. 40 The amount of such damages is addressed to the sound discretion of the court, with the relevant circumstances taken into account. 41 WHEREFORE, the petition is hereby partially GRANTED. The assailed Decision, as herein clarified, is AFFIRMED with the MODIFICATION that Private Respondent Fernando O. Carrascoso Jr. is ORDERED TO PAY petitioner nominal damages in the amount of fifty thousand pesos (P50,000). No pronouncement as to costs. SO ORDERED. -Jaja 2. VINZONS-CHATO V. FORTUNE TOBACCO CORPORATION G.R. No. 141309 June 19, 2007

LIWAYWAY VINZONS-CHATO vs. FORTUNE TOBACCO CORPORATION, FACTS:

Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals in CA-G.R. SP No. 47167, which affirmed the September 29, 1997 Order2 of the Regional Trial Court (RTC) of Marikina, Branch 272, in Civil Case No. 97-341-MK, denying petitioners motion to dismiss. The complaint filed by respondent sought to recover damages for the alleged violation of its constitutional rights arising from petitioners issuance of Revenue Memorandum Circular No. 37-93 (RMC 37-93), which the Court declared invalid in Commissioner of Internal Revenue v. Court of Appeals.3 Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while respondent Fortune Tobacco Corporation is an entity engaged in the manufacture of different brands of cigarettes, among which are "Champion," "Hope," and "More" cigarettes. On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July 3, 1993. Prior to its effectivity, cigarette brands Champion," "Hope," and "More" were considered local brands subjected to an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two days before RA 7654 took effect, petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and "More" as locally manufactured cigarettes bearing a foreign brand subject to the 55% ad valorem tax.4 RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to Sec. 142,5 (c)(1) on locally manufactured cigarettes which are currently classified and taxed at 55%, and which imposes an ad valorem tax of "55% provided that the minimum tax shall not be less than Five Pesos (P5.00) per pack."6 On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular. On July 15, 1993, Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93. On July 20, 1993, respondent filed a motion for reconsideration requesting the recall of RMC 37-93, but was denied in a letter dated July 30, 1993.7 The same letter assessed respondent for ad valorem tax deficiency amounting to P9,598,334.00 (computed on the basis of RMC 37-93) and demanded payment within 10 days from receipt thereof.8 On August 3, 1993, respondent filed a petition for review with the Court of Tax Appeals (CTA), which on September 30, 1993, issued an injunction enjoining the implementation of RMC 37-93. 9 In its decision dated August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and further enjoined petitioner from collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This ruling was affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal Revenue v. Court of Appeals.10 It was held, among others, that RMC 37-93, has fallen short of the requirements for a valid administrative issuance. On April 10, 1997, respondent filed before the RTC a complaint 11 for damages against petitioner in her private capacity. Respondent contended that the latter should be held liable for damages under Article 32 of the Civil Code considering that the issuance of RMC 37-93 violated its constitutional right against deprivation of property without due process of law and the right to equal protection of the laws. Petitioner filed a motion to dismiss 12 contending that: (1) respondent has no cause of action against her because she issued RMC 37-93 in the performance of her official function and within the scope of her authority. She claimed that she acted merely as an agent of the Republic and therefore the latter is the one responsible for her acts; (2) the complaint states no cause of action for lack of allegation of malice or bad faith; and (3) the certification against forum shopping was signed by respondents counsel in violation of the rule that it is the plaintiff or the principal party who should sign the same. On September 29, 1997, the RTC denied petitioners motion to dismiss holding that to rule on the allegations of petitioner would be to prematurely decide the merits of the case without allowing the parties to present evidence. It further held that the defect in the certification against forum shopping was cured by respondents submission of the corporate secretarys certificate authorizing its counsel to execute the certification against forum shopping. CA was dismissed on the ground that under Article 32 of the Civil Code, liability may arise even if the defendant did not act with malice or bad faith. The appellate court ratiocinated that Section 38, Book I of

the Administrative Code is the general law on the civil liability of public officers while Article 32 of the Civil Code is the special law that governs the instant case. Consequently, malice or bad faith need not be alleged in the complaint for damages. It also sustained the ruling of the RTC that the defect of the certification against forum shopping was cured by the submission of the corporate secretarys certificate giving authority to its counsel to execute the same. Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her acts done in the performance of her functions as a public officer, hence, it is Section 38, Book I of the Administrative Code which should be applied. Under this provision, liability will attach only when there is a clear showing of bad faith, malice, or gross negligence. She further averred that the Civil Code, specifically, Article 32 which allows recovery of damages for violation of constitutional rights, is a general law on the liability of public officers; while Section 38, Book I of the Administrative Code is a special law on the superior public officers liability, such that, if the complaint, as in the instant case, does not allege bad faith, malice, or gross negligence, the same is dismissible for failure to state a cause of action. As to the defect of the certification against forum shopping, she urged the Court to strictly construe the rules and to dismiss the complaint. Conversely, respondent argued that Section 38 which treats in general the public officers "acts" from which civil liability may arise, is a general law; while Article 32 which deals specifically with the public officers violation of constitutional rights, is a special provision which should determine whether the complaint states a cause of action or not. Citing the case of Lim v. Ponce de Leon,14 respondent alleged that under Article 32 of the Civil Code, it is enough that there was a violation of the constitutional rights of the plaintiff and it is not required that said public officer should have acted with malice or in bad faith. Hence, it concluded that even granting that the complaint failed to allege bad faith or malice, the motion to dismiss for failure to state a cause of action should be denied inasmuch as bad faith or malice are not necessary to hold petitioner liable. ISSUES: (1) May a public officer be validly sued in his/her private capacity for acts done in connection with the discharge of the functions of his/her office? (2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative Code should govern in determining whether the instant complaint states a cause of action? (3) Should the complaint be dismissed for failure to comply with the rule on certification against forum shopping? (4) May petitioner be held liable for damages? HELD: On the first issue, the general rule is that a public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks. 15 An officer who acts within his authority to administer the affairs of the office which he/she heads is not liable for damages that may have been caused to another, as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent. 16 However, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for official actions.17

Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise where there is bad faith, malice, or gross negligence on the part of a superior public officer. And, under Section 39 of the same Book, civil liability may arise where the subordinate public officers act is characterized by willfulness or negligence. Thus Sec. 38. Liability of Superior Officers. (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. xxxx Section 39. Liability of Subordinate Officers. No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acts under orders or instructions of his superior. In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a public officer who directly or indirectly violates the constitutional rights of another, may be validly sued for damages under Article 32 of the Civil Code even if his acts were not so tainted with malice or bad faith. Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private capacity for acts done in the course of the performance of the functions of the office, where said public officer: (1) acted with malice, bad faith, or negligence; or (2) where the public officer violated a constitutional right of the plaintiff. Anent the second issue, we hold that the complaint filed by respondent stated a cause of action and that the decisive provision thereon is Article 32 of the Civil Code. A general statute is one which embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class. A special statute, as the term is generally understood, is one which relates to particular persons or things of a class or to a particular portion or section of the state only.19 A general law and a special law on the same subject are statutes in pari materia and should, accordingly, be read together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts, one of which is special and particular and the other general which, if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute and must not be taken as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all.20 The circumstance that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication.21 Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the Civil Code which holds provinces, cities, and municipalities civilly liable for death or injuries by reason of defective conditions of roads and other public works, is a special provision and should prevail over Section 4 of Republic Act No. 409, the Charter of Manila, in determining the liability for defective street conditions. Under said Charter, the city shall not be held for damages or injuries arising from the failure of the local officials to enforce the provision of the charter, law, or ordinance, or from negligence while enforcing or attempting to enforce the same. As explained by the Court:

Manila maintains that the former provision should prevail over the latter, because Republic Act 409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines. The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by, any person by reason" specifically "of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.23 In the case of Bagatsing v. Ramirez,24 the issue was which law should govern the publication of a tax ordinance, the City Charter of Manila, a special act which treats ordinances in general and which requires their publication before enactment and after approval, or the Tax Code, a general law, which deals in particular with "ordinances levying or imposing taxes, fees or other charges," and which demands publication only after approval. In holding that it is the Tax Code which should prevail, the Court elucidated that: There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class. And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. Th[is] exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of "ordinances levying or imposing taxes, fees or other charges" in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. Special provision governs. Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code provides: ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxxx (6) The right against deprivation of property without due process of law;

xxxx (8) The right to the equal protection of the laws; xxxx The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as follows: "DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes that Article 32 be so amended as to make a public official liable for violation of another persons constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons: "The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in the nature of a tort. "Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement democracy. There is no real democracy if a public official is abusing and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with ones duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights."25 The Code Commission deemed it necessary to hold not only public officers but also private individuals civilly liable for violation of the rights enumerated in Article 32 of the Civil Code. It is not necessary that the defendant under this Article should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of individual rights. It suffices that there is a violation of the constitutional right of the plaintiff.26 Article 32 was patterned after the "tort" in American law.27 A tort is a wrong, a tortious act which has been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation.28 There are cases in which it has been stated that civil liability in tort is determined by the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the defendant has been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental attitude of the alleged wrongdoer, and not the act itself, would determine whether the act was wrongful.29 Presence of good motive, or rather, the absence of an evil motive, does not render lawful an act which is otherwise an invasion of anothers legal right; that is, liability in tort is not precluded by the fact that defendant acted without evil intent.30 The clear intention therefore of the legislature was to create a distinct cause of action in the nature of tort for violation of constitutional rights, irrespective of the motive or intent of the defendant.31 This is a fundamental innovation in the Civil Code, and in enacting the Administrative Code pursuant to the exercise of legislative powers, then President Corazon C. Aquino, could not have intended to obliterate this constitutional protection on civil liberties.

In Aberca v. Ver,32 it was held that with the enactment of Article 32, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression, joint tortfeasors. On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule on the civil liability of superior and subordinate public officers for acts done in the performance of their duties. For both superior and subordinate public officers, the presence of bad faith, malice, and negligence are vital elements that will make them liable for damages. Note that while said provisions deal in particular with the liability of government officials, the subject thereof is general, i.e., "acts" done in the performance of official duties, without specifying the action or omission that may give rise to a civil suit against the official concerned. Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular specie of an "act" that may give rise to an action for damages against a public officer, and that is, a tort for impairment of rights and liberties. Indeed, Article 32 is the special provision that deals specifically with violation of constitutional rights by public officers. All other actionable acts of public officers are governed by Sections 38 and 39 of the Administrative Code. While the Civil Code, specifically, the Chapter on Human Relations is a general law, Article 32 of the same Chapter is a special and specific provision that holds a public officer liable for and allows redress from a particular class of wrongful acts that may be committed by public officers. Compared thus with Section 38 of the Administrative Code, which broadly deals with civil liability arising from errors in the performance of duties, Article 32 of the Civil Code is the specific provision which must be applied in the instant case precisely filed to seek damages for violation of constitutional rights. The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad faith and malice are not necessary in an action based on Article 32 of the Civil Code, the failure to specifically allege the same will not amount to failure to state a cause of action. The courts below therefore correctly denied the motion to dismiss on the ground of failure to state a cause of action, since it is enough that the complaint avers a violation of a constitutional right of the plaintiff. Anent the issue on non-compliance with the rule against forum shopping, the subsequent submission of the secretarys certificate authorizing the counsel to sign and execute the certification against forum shopping cured the defect of respondents complaint. Besides, the merits of the instant case justify the liberal application of the rules.33 WHEREFORE, in view of the foregoing, the petition is DENIED.

3. GLORIA V. COURT OF APPEALS (2000) Facts: On June 29, 1989, Dr. Bienvenido icasiano was appointed Schools Division Superintendent, Division of City Schools, Quezon City, by the then President Corazon C. Aquino.

On October 10, 1994, respondent Secretary Gloria recommended to the President of the Philippines that the Dr. Icasiano be reassigned as Superintendent of the MIST [Marikina Institute of Science and Technology], to fill up the vacuum created by the retirement of its Superintendent, Mr. Bannaoag F. Lauro, on June 17, 1994. On October 12, 1994, the President approved the recommendation of Secretary Gloria. On October 13, 1994, a copy of the recommendation for petitioners reassignment, as approved by the President, was transmitted by Secretary Gloria to Director Rosas for implementation. On October 14, 1994, Director Rosas, informed the petitioner of his reassignment, effective October 17, 1994. Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but the latter denied the request. The petitioner prepared a letter dated October 18, 1994 to the President of the Philippines, asking for a reconsideration of his reassignment. However, he subsequently changed his mind and refrained from filing the letter with the Office of President. On October 19, 1994, Dr. icasiano filed the instant petition. He contends that such reassignment is in violation of his right to security of tenure. In its decision, the CA held that Dr. Icasianos reassignment appears to be indefinite. No period was fixed, and the purpose or objective for such action was not even stated. Hence, the CA granted the petition for prohibition filed by Dr. Icasiano. Petitioner, on the other hand, contends that the doctrine enunciated in Bentain vs. Court of Appeals -- that "a reassignment that is indefinite and results in a reduction in rank, status and salary, is in effect, a constructive removal from the service" -- does not apply in the present case for the reassignment in question was merely temporary, lasting only until the appointment of a new Vocational School Superintendent of MIST. Issue: Whether the reassignment of private respondent from School Division Superintendent of Quezon City to Vocational School Superintendent of MIST is violative of his security of tenure Held: Yes. After a careful study, the Court upholds the finding of the respondent court that the reassignment of petitioner to MIST "appears to be indefinite". The same can be inferred from the Memorandum of Secretary Gloria for President Fidel V. Ramos to the effect that the reassignment of private respondent will "best fit his qualifications and experience" being "an expert in vocational and technical education." It can thus be gleaned that subject reassignment is more than temporary as the private respondent has been described as fit for the (reassigned) job, being an expert in the field. Besides, there is nothing in the said Memorandum to show that the reassignment of private respondent is temporary or would only last until a permanent replacement is found as no period is specified or fixed; which fact evinces an intention on the part of petitioners to reassign private respondent with no definite period or duration. Such feature of the reassignment in question is definitely violative of the security of tenure of the private respondent. As held in Bentain: "Security of tenure is a fundamental and constitutionally guaranteed feature of our civil service. The mantle of its protection extends not only to employees removed without cause but also to cases of

unconsented transfers which are tantamount to illegal removals (Department of Education, Culture and Sports vs. Court of Appeals, 183 SCRA 555; Ibanez vs. COMELEC, 19 SCRA 1002; Brillantes vs. Guevarra, 27 SCRA 138). While a temporary transfer or assignment of personnel is permissible even without the employees prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service (Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116)." Having found the reassignment of private respondent to the MIST to be violative of his security of tenure, the order for his reassignment to the MIST cannot be countenanced. -Jeniby 4. SAUCIER V. KATZ -George C. PERSONNEL MOVEMENTS AND DISCIPLINARY PROCEEDINGS 1. CIVIL SERVICE COMMISSION, NCR V. ALBAO FACTS: On September 1, 1998, the Office of the Vice President of the Republic of the Philippines issued an original and permanent appointment for the position of Executive Assistant IV to respondent Ranulfo P. Albao. Respondent was then a contractual employee at said Office. In a letter dated September 28, 1998 addressed to the Director of the Civil Service Commission Field Office, Manila, the Office of the Vice President requested the retrieval of the said appointment paper. Instead of heeding the request, petitioner CSC-NCR disapproved the appointment. On October 5, 1998, petitioner issued an Order holding that it has found, After a fact-finding investigation, that a prima facie case exists against respondent Albao for Dishonesty and Falsification of Official Documents, committed as follows: 1. That in support of his permanent appointment as Executive Assistant IV, in the Office of the VicePresident, he stated in his Personal Data Sheet (PDS) accomplished on July 1, 1998 that he took and passed the Assistant Electrical Engineer Examination held on October 15 and 16, 1988 with a rating of 71.64%;

2. To support his claim, he submitted a Report of Rating showing he obtained a rating of 71.64% during the aforesaid Assistant Electrical Engineering Examination, all purportedly issued by the Professional Regulation Commission (PRC); and 3. the Professional Regulation Commission (PRC) has informed CSC-NCR that the name Ranulfo P. Albao does not appear in the Table of Results and Masterlists of examinees of the Board of Electrical

Engineering which contain the names of those who took the Assistant Electrical Engineer Examination given in October, 1988; and 4. the examinee number appearing in his Report of Rating is assigned to one Bienvenido Anio, Jr.

Section 47, Title 1 (A), Book V of EO No. 292, on the other hand, provides, as follows: SEC. 47. Disciplinary Jurisdiction.(1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. Furthermore, Section 48, Title 1(A), Book V of EO No. 292 provides for the procedure in administrative cases against non-presidential appointees, thus:

After filing his Answer, respondent Albao an Urgent Motion to Resolve the issue of whether or not the Civil Service Commission has original jurisdiction over the administrative case. Respondent contended that the Commission has no jurisdiction over the same for the following reasons: (1)The permanent appointment issued to him never became effective, even if it was later disapproved, because he never assumed such position in the first place.Moreover, he is already out of government service since he resigned from his position effective at the closing hour of October 30, 1998. (2) As he is no longer with the civil service, the Commission has no disciplinary jurisdiction over him as a private person. (3) While it is true that the Commission has original disciplinary jurisdiction over all its officials and employees and cases involving civil service examination anomalies or irregularities (Sec. 28, Omnibus Rules of 1991), as well as over sworn complaints directly filed before it against any other official or employee (Sec. 29, Omnibus Rules of 1991), the administrative case commenced against him did not fall under any of those instances. (4) ince the Commission has no jurisdiction to institute the administrative case, it cannot delegate the same to the CSC-NCR.

The Civil Service Commission rendered Resolution No. 001826, the dispositive portion of which reads: WHEREFORE, the Commission hereby rules that the Civil Service Commission - National Capital Region has jurisdiction over disciplinary cases against employees of agencies, local or national for offenses committed within its geographical area. Respondent filed a petition for review before the Court of Appeals. It held that based on Executive Order No. 292, otherwise known as the Administrative Code of 1987, particularly Section 12 (11), Section 47 (1), (2) and Section 48, Title 1 (A), Book V thereof, the CSCNCR does not have jurisdiction to investigate and decide the case of respondent. Consequently, the CSCNCR exceeded its authority in initiating the administrative case against him. It set aside the resolution of the Civil Service Commission. ISSUE: whether or not the Civil Service Commission has original jurisdiction to institute the instant administrative case against respondent Albao through its regional office, the CSC-NCR. RULING: PETITION GRANTED. Section 12, Title 1 (A), Book V of EO No. 292 enumerates the powers and functions of the Civil Service Commission, one of which is its quasi-judicial function under paragraph 11, which states: Section 12. Powers and Functions -- The Commission shall have the following powers and functions: (11)Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. . . .

SEC. 48. Procedure in Administrative Cases Against Non-Presidential Appointees. - (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person. Respondent Albao was a contractual employee in the Office of the Vice President before his appointment to a permanent position, which appointment was, however, requested to be retrieved by the Office of the Vice President and at the same time disapproved by the Civil Service Commission. Pursuant to Section 47 (1), (2) and Section 48 above, it is the Vice President of the Philippines, as head of office, who is vested with jurisdiction to commence disciplinary action against respondent Albao. Nevertheless, this Court does not agree that petitioner is helpless to act directly and motu proprio, on the alleged acts of dishonesty and falsification of official document committed by respondent in connection with his appointment to a permanent position in the Office of the Vice President. It is true that Section 47 (2), Title 1 (A), Book V of EO No. 292 gives the heads of government offices original disciplinary jurisdiction over their own subordinates. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. It is only when the penalty imposed exceeds the aforementioned penalties that an appeal may be brought before the Civil Service Commission which has appellate jurisdiction over the same in accordance with Section 47 (1) Title 1(A), Book V of EO No. 292, thus:

SEC. 47. Disciplinary Jurisdiction.(1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in

an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. . .

8.)

The present case, however, partakes of an act by petitioner to protect the integrity of the civil service system, and does not fall under the provision on disciplinary actions under Sec. 47. It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it directly. This is an integral part of its duty, authority and power to administer the civil service system and protect its integrity, as provided in Article IX-B, Sec. 3 of the Constitution, by removing from its list of eligibles those who falsified their qualifications. This is to be distinguished from ordinary proceedings intended to discipline a bona fide member of the system, for acts or omissions that constitute violations of the law or the rules of the service. -Aimee 2. PADOLINA V. FERNANDEZ -Diana 3. CANONIZADO V. AGUIRRE -Joyce 4. GLORIA V. COURT OF APPEALS (1999) HON. RICARDO T. GLORIA, in his capacity as SECRETARY, AND DIRECTOR NILO L. ROSAS in his capacity as REGIONAL DIRECTOR, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, petitioners, vs. HON. COURT OF APPEALS AND DR. BIENVENIDO A. ICASIANO, respondents. FACTS: 1.) 2.) Private respondent herein was appointed Schools Division Superintendent, Division of City Schools, Quezon City, by the then President Corazon C. Aquino. Secretary Gloria recommended to the President of the Philippines that the petitioner be reassigned as Superintendent of the MIST [Marikina Institute of Science and Technology], to fill up the vacuum created by the retirement of its Superintendent, Mr. Bannaoag F. Lauro, on June 17, 1994. President approved the recommendation of Secretary Gloria. a copy of the recommendation for petitioners reassignment, as approved by the President, was transmitted by Secretary Gloria to Director Rosas for implementation. Director Rosas, informed the petitioner of his reassignment, effective October 17, 1994. Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but the latter denied the request. The petitioner prepared a letter dated October 18, 1994 to the President of the Philippines, asking for a reconsideration of his reassignment, and furnished a copy of the same to the DECS. However, he subsequently changed his mind and refrained from filing the letter with the Office of President. Petitioner filed the instant petition. Court of Appeals denied private respondents prayer for the issuance of a Temporary Restraining Order (TRO). CA set aside its earlier resolution denying the prayer for the issuance of a TRO; and thereafter, restrained the petitioners "from implementing the re-assignment of the petitioner [private respondent herein] from incumbent Schools Division Superintendent of Quezon City to Vocational Schools Superintendent of the Marikina Institute of Science and Technology. 9.)

Court of Appeals issued another resolution setting the hearing of the petition for the issuance of a writ of preliminary injunction and enjoining the petitioners from implementing the reassignment of the private respondent. Court ruled that to the Memorandum of Secretary Ricardo T. Gloria to the President of the Philippines dated 10 October 1994, is hereby declared to be violative of petitioners right to security of tenure, and the respondents are hereby prohibited from implementing the same. CA ratiocinated: "Notwithstanding the protestations of counsel for the respondents, the reassignment of the petitioner to MIST appears to be indefinite. No period is fixed. No objective or purpose, from which the temporariness of the assignment may be inferred, is set. In fact, the recommendation of respondent Secretary Gloria to the President that the position of superintendent of MIST will best fit his (petitioners) qualifications and experience. (Exh. C-2) implies that the proposed reassignment will be indefinite." Petitioners theorize that the present petition for prohibition is improper because the same attacks an act of the President, in violation of the doctrine of presidential immunity from suit.

ISSUE: Whether or not the reassignment is indefinite; whether or not the case at hand may be subject to the review of this court Ruling: 1.) Yes. After a careful study, the Court upholds the finding of the respondent court that the reassignment of petitioner to MIST "appears to be indefinite". The same can be inferred from the Memorandum of Secretary Gloria for President Fidel V. Ramos to the effect that the reassignment of private respondent will "best fit his qualifications and experience" being "an expert in vocational and technical education." It can thus be gleaned that subject reassignment is more than temporary as the private respondent has been described as fit for the (reassigned) job, being an expert in the field. Besides, there is nothing in the said Memorandum to show that the reassignment of private respondent is temporary or would only last until a permanent replacement is found as no period is specified or fixed; which fact evinces an intention on the part of petitioners to reassign private respondent with no definite period or duration. Such feature of the reassignment in question is definitely violative of the security of tenure of the private respondent. 2.) Yes. Petitioners submission that the petition of private respondent with the Court of Appeals is improper for failing to show that petitioners constituted themselves into a "court" conducting a "proceeding" and for failing to show that any of the petitioners acted beyond their jurisdiction in the exercise of their judicial or ministerial functions, is barren of merit. Private respondent has clearly averred that the petitioners acted with grave abuse of discretion amounting to lack of jurisdiction and/or excess of jurisdiction in reassigning the private respondent in a way that infringed upon his security of tenure. And petitioners themselves admitted that their questioned act constituted a ministerial duty, such that they could be subject to charges of insubordination if they did not comply with the presidential order. What is more, where an administrative department acts with grave abuse of discretion, which is equivalent to a capricious and whimsical exercise of judgment, or where the power is exercised in an arbitrary or despotic manner, there is a justification for the courts to set aside the administrative determination thus reached. -Jason V.

3.) 4.) 5.)

6.) 7.)

5. QUIMBO V. GERVACIO (2005) FACTS: In May 1955, Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar was administratively charged for harassment and oppression by Elmo V. Padaon (Padaon), a general foreman who was detailed to the Motor Pool Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then Provincial Governor Jose Roo. During the pendency of the administrative case before the Office of the Deputy Ombudsman, based on the motion of the petitioner, was placed under preventive suspension without pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond Six (6) Months. Petitioner began serving his preventive suspension on March 18, 1998. After petitioner had presented on direct examination his last two witnesses, the Office of the Ombudsman, lifted petitioners preventive suspension. He was thus thereupon ordered to resume performing his duties as Provincial Engineer. In April 2000, the Office of the Deputy Ombudsman found petitioner guilty of oppression and recommended that he be suspended from office for a period of eight (8) months without pay, this case being the second commission by him of the same offense" The Deputy Ombudsmans recommendation was approved by the Ombudsman. Petitioners motion for reconsideration of the Ombudsmans decision having been denied, he elevated the case to the Court of Appeals. The CA modifying the decision of the Ombudsman, found petitioner guilty of simple misconduct only and penalized him with suspension from office for a period of Two (2) Months without pay. Following the finality of the appellate courts decision, the Office of the Ombudsman, directed the Provincial Governor to implement its decision, as modified by the appellate court. Petitioner filed, however, before the Office of the Ombudsman a Motion for Modification/Reconsideration calling attention to the fact that he had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified to take into account the period of [his] PREVENTIVE SUSPENSION of TWO (2) MONTHS and SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final penalty imposed.[ The Office of the Ombudsman clarified that preventive suspension is not a penalty but a preliminary step in an investigation; [and that] [i]f after such investigation, the charge is established and the person investigated upon is found guilty . . . warranting the imposition of penalty, then he shall accordingly be penalized. The order for the implementation of its decision, as modified by the appellate court, was thus reiterated in the letter. Unperturbed, petitioner, via certiorari, assailed before the CA the Office of the Ombudsmans denial of his plea to be considered having served the modified penalty. The Court of Appeals dismissed petitioners petition for certiorari, it affirming the Ombudsmans ruling that preventive suspension pending investigation is not a penalty.

HELD: NO Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. SEC. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. (Emphasis supplied). Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides: SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. (Emphasis supplied). Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. Petitioners reliance on Gloria fails. In said case, this Court recognized two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension, to wit: (1) preventive suspension pending investigation (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law).[18] The foregoing classification has significant implications in determining the entitlement of the employee to compensation during the period of suspension, and to credit the preventive suspension to the final penalty of suspension. Thus, in Gloria, this Court held: Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On

ISSUE: WON the preventive suspension imposed upon the petitioner is a penalty.

the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. [19] (Emphasis and underscoring supplied). In fine, as petitioners preventive suspension was carried out pending his investigation, not while his appeal from his conviction was pending, the same cannot be credited to form part of the final penalty of suspension. -Julie 6. NATIONAL APPELLATE BOARD OF NPC V. MAMAUAG Facts Nancy Gaspar and Proclyn Pacay (househelpers) left the residence of Judge Adoracion G. Angeles (Judge Angeles) in Quezon City. Gaspar and Pacay were both minors .Agnes Lucero (Lucero) found Gaspar and Pacay wandering around the vicinity of the Philippine Rabbit bus terminal in Cubao. They narrated to Lucero stories of maltreatment and non-payment of salary by Judge Angeles. Lucero brought Gaspar and Pacay to the Baler Police Station 2, Central Police District Command (CPDC), Quezon City. At the police station, desk officer SPO1 Jaime Billedo (Billedo) recorded the girls complaint in the police blotter. On Billedos instruction, SPO1 Roberto C. Cario (Cario) brought Gaspar and Pacay to the East Avenue Medical Center for the requisite medical examination. Later, the two girls were returned to the police station where Cario interviewed them. Carios Initial Investigation Report was reviewed and signed by SPO2 Eugene V. Almario (Almario) and approved by P/Insp. John A. Mamauag (Mamauag). Later, SPO1 Vivian M. Felipe (Felipe) and SPO4 Erlinda L. Garcia (Garcia) escorted Gaspar and Pacay to the DSWD. P/Insp. Roberto V. Ganias (Ganias) signed the Letter of Turnover to the DSWD. The incident drew the attention of the media and spawned several cases. One was a criminal case for child abuse under Republic Act No. 7610 against Judge Angeles. Another was an administrative complaint for Grave Misconduct filed by Judge Angeles against Ganias, Mamauag, Almario, Cario, Felipe and Garcia. Judge Angeles later impleaded Billedo as additional respondent. In her administrative complaint, Judge Angeles alleged that the police officers: did not get the required sworn statements of the two (2) girls and Agnes Lucero; Did not register in the police logbook the discovery of some of her stolen articles; Despite the insistent request of the complainant that a report for qualified theft be entered in the police blotter, respondents maliciously refused to act upon the incident and conduct further investigation; respondents did not give her a chance to explain her side by not contacting her although her residence is just a few houses away from the police station; the police leaked the baseless maltreatment case against her as shown by the presence of so many people and members of the media as well as the Human Rights Commission personnel at the police station; The Ruling of the PNP Chief PNP Chief Sarmiento found GANIAS, Billedo and Cario guilty of Serious Neglect of Duty and ordered their dismissal from the police service; P/INSP JOHN MAMAUAG and SPO2 Eugene Almario guilty of Less Serious Neglect of Duty and orders that both of them be suspended from the police service for Ninety (90) days with forfeiture of pay; and SPO4 Erlinda Garcia and SPO1 Vivian Felipe exonerated of the charge for insufficiency of evidence.

Judge Angeles filed a Motion for Partial Reconsideration and in a Resolution PNP Chief Sarmiento modified his previous ruling and ordered the dismissal from the service of Mamauag, Almario, Garcia and Felipe (Mamauag, et al.). Mamauag, et al. forthwith filed a petition for certiorari and mandamus against PNP Chief Sarmiento, PNP Inspector General Jovencio Sales and Judge Angeles before the Regional Trial Court of Quezon City, Branch 101. In an Order the Regional Trial Court dismissed the petition for failure of petitioners to exhaust administrative remedies and for failure to show that respondents abused their discretion. Mamauag, et al. then appealed the PNP Chiefs Resolution before the NAB. The Ruling of the National Appellate Board In a Decision, dated 3 March 2000, the NAB dismissed the appeal for late filing and lack of merit. Mamauag, et al. filed a motion for reconsideration of the Decision but the NAB denied it in the NAB Resolution[13] of 30 June 2000. Thus, Mamauag, et al. sought relief from the Court of Appeals. The Ruling of the Court of Appeals In finding for Mamauag, et al., the Court of Appeals explained: First of all, the said provision expressly states that the disciplinary action imposed upon a member of the PNP shall be final and executory. . The said decision clearly does not involve any demotion nor dismissal which could properly be appealed to the NAB. Judge Angeles did not have the personality to make such a motion. While Sec. 45 of R.A. 6975 does not clearly provide who may appeal (or for that matter make any motion for reconsideration) from the decision of the PNP Chief, the last clause mentions either party may appeal with the Secretary and by the doctrine of necessary implication this extends to said decision of the PNP Chief. It is elementary that in an administrative case, the complainant is a mere witness. No private interest is involved in an administrative case as the offense committed is against the government. Applying this to the present case by analogy (Paredes vs. CSC party in interest and CSC vs. Dacoycoy who can appeal), had the original judgment been rendered in favor of the petitioners, it would be the Philippine National Police which would be adversely affected and thus would be the proper party to appeal such a judgment. Corollary to this, where the original judgment is adverse to the petitioners, it is they who could properly appeal the same. In either case, the complainant Judge Angeles certainly has no legal personality to move for a reconsideration of the original decision handed down by the PNP Chief. Hence, the NABs recourse to this Court. ISSUE 1. Whether Section 45 of Republic Act No. 6975 (An Act Establishing the Philippine National Police under a Reorganized Department of the Interior and Local Government, and For Other Purposes) allows the filing of a motion for reconsideration;

SC. . SEC. 45. Finality of Disciplinary Action. - The disciplinary action imposed upon a member of the PNP shall be final and executory: Provided, That a disciplinary action imposed by the regional director or by the PLEB involving demotion or dismissal from the service may be appealed to the regional appellate board within ten (10) days from receipt of the copy of the notice of decision: Provided, further, That the disciplinary action imposed by the Chief of the PNP involving demotion or dismissal may be appealed to the National Appellate Board within ten (10) days from receipt thereof: Provided, furthermore, The regional or National Appellate Board, as the case may be, shall decide the appeal within sixty (60) days from receipt of the notice of appeal: Provided, finally, That failure of the regional appellate board to act on the appeal within said period shall render the decision final and executory without prejudice, however, to the filing of an appeal by either party with the Secretary. The Court of Appeals sustained Mamauag, et al. Decisions Appealable Under RA 6975 Section 45 of RA 6975 provides that a disciplinary action imposed upon a member of the PNP shall be final and executory. Under Section 45, a disciplinary action is appealable only if it involves either a demotion or dismissal from the service. If the disciplinary action is less than a demotion or dismissal from the service, the disciplinary action shall be final and executory as Section 45 of RA 6975 expressly mandates. Thus, a decision imposing suspension on a PNP member is not subject to appeal to a higher authority. 2. Whether the private complainant in an administrative case has the legal personality to move for reconsideration, or appeal an adverse decision of the disciplining authority. The court used the DACOYCOY case. However, in Dacoycoy, the Court modified the rule in Del Castillo and earlier cases by allowing the Civil Service Commission to appeal dismissals of charges or exoneration of respondents in administrative disciplinary proceedings. In Dacoycoy, the Court ruled: At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him. He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service. Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office and not included are cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary or when the respondent is exonerated of the charges, there is no occasion for appeal. In other words, we overrule prior decisions holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or employees from

administrative charges enunciated in Paredes v. Civil Service Commission; Mendez v. Civil Service Commission; Magpale v. Civil Service Commission; Navarro v. Civil Service Commission and Export Processing Zone Authority and more recently Del Castillo v. Civil Service Commission. (Emphasis supplied) Thus, Judge Angeles has no legal personality to appeal the dismissal of the charges against Mamauag, et al. by the CPDC District Director in the Resolution of 10 April 1995. The motion for re-investigation filed by Judge Angeles with the PNP Chief is in substance an appeal from the decision of the CPDC District Director. The PNP Chief had no jurisdiction to entertain Judge Angeles appeal in the guise of a motion for re-investigation. Since the PNP Chief had no jurisdiction, all actions taken by the PNP Chief pursuant to the appeal is void. Thus, the Decision of the CPDC District Director dismissing the charges against Mamauag, et al. stands and is now final and executory. PNP Chief Sarmientos Decision of 7 June 1996 dismissed from the service Ganias, Billedo, and Cario, suspended for 90 days Mamauag and Almario, and exonerated Garcia and Felipe. All the respondents initially appealed the Decision to the NAB. The NAB exonerated Ganias, Billedo and Cario and advised the PNP Chief to take note of our findings in the instant case and to act thereon accordingly with respect to Judge Angeles pending motion for partial reconsideration involving Mamauag, et al. The PNP Chief, however, issued his Resolution on 3 July 1997 dismissing from the service Mamauag, et al., twenty-six days before the NAB Decision of 29 July 1997. The NAB, which is a higher disciplining authority than the PNP Chief, found that the same grave misconduct charged against all the respondents never happened. Thus, the NAB exonerated and reinstated Ganias, Billedo and Cario, whom the PNP Chief dismissed from the service in his original Decision of 7 June 1996. The NAB decision became final and executory on 28 February 1998. Ironically, Mamauag and Almario, whom the PNP Chief originally meted out a lesser penalty of 90-day suspension but subsequently dismissed on motion for partial reconsideration, have not been reinstated to their positions up to now. Garcia and Felipe, whom the PNP Chief originally exonerated but subsequently dismissed on motion for partial reconsideration, have also not been reinstated to their positions. And yet, as found by the NAB, the appellate disciplining authority superior to the PNP Chief, the same offense of grave misconduct charged against all respondents, including Mamauag, et al., never happened. -Amador

7. ROMAGOS V. METRO CEBU WATER DISTRICT Vilma E. Romagos is an employee at the Metro Cebu Water District (MCWD). Two incident reports were submitted by her co-employees stating that during a meeting and office hours, Romagos suddenly and without provocation began rambling loudly and incoherently, respectively, a certification was issued by Dr. Costas and Dr. Obra stating that Romagos is suffering from Major depression. However on August 20, 1999 a medical certification issued by Dr. Obra categorically declared Romagos physically and mentally fit to go back to work. Thereafter on August 9, 1999, Romagos was denied entry into the work premises by MCWD unless she undergoes psychiatric treatment and is certified by her doctor to be mentally fit to work. Eventually, in a letter dated December 1, 1999, MCWD informed Romagos that, effective January 1, 2000, she was being dropped from the rolls for mental incapacity. Romagos filed with the CSC Regional Office (CSCRO) a complaint-appeal, questioning the procedure and factual basis of her dismissal. In dismissing her appeal, it held that the evidence cited by MCWD in its letter, as well as new evidence presented by MCWD General Manager Abanilla, where Romagos was observed to again utter incoherent words and become hysterical, and submitted reports that are incomprehensible, incoherent established that the latter was mentally incapacitated. CSC affirmed the CSCRO decision. In a petition for review with the Court Of Appeals, Romagos questioned the CSC

resolutions for insufficiency of evidence and lack of due process. CA found that MCWD correctly declared Romagos mentally unfit.

a. An officer or employee who is continuously absent for more than one (1) year by reason of illness may be declared physically unfit to perform his duties and the head of office in the exercise of his sound judgment may consequently drop him from the rolls. b. An officer or employee who is intermittently absent by reason of illness for at least 260 working days during a 24-month period may also be declared physically unfit by the head of office. c. An officer or employee who is behaving abnormally for an extended period which manifests continuing mental disorder and incapacity to work as reported by his co-workers or immediate supervisor and confirmed by the head of office, may likewise be dropped from the rolls.

Issue: Whether or not the CA correctly held that there was proper procedure and substantial basis for MCWD to declare Romagos mentally unfit to work and drop her from the rolls.

Ruling: Petition GRANTED. The procedure adopted by MCWD in dropping Romagos from the rolls substantially complied with the two-notice requirement of Memorandum Circular 40-98. Under Section 46, Book V of Executive Order (E.O.) No. 292, one of the causes for separation from government service of an officer or employee is mental incapacity,: Sec. 46. (b) The following shall be grounds for disciplinary actions: (19) Physical or mental incapacity or disability due to immoral or vicious habits. (Emphasis added) Separation from the service for such cause is done by way of a disciplinary proceeding governed by Rule II of CSC Memorandum Circular No. 19, series of 1999 (MC 19-99). The minimum procedural requirements thereof are: a) that notice of the charge be served on the officer or employee; and, b) that the latter be given opportunity to be heard. While Section 46 of E.O. No. 292 is silent on this matter, mental incapacity not arising from immoral or vicious habits is also a cause for separation under Section 26 of E.O. No. 292 and Section 2(2), Article IX(B) of the 1987 Constitution which demand of government officers and employees continuing merit and fitness. Separation from the service for such cause is carried out through a non-disciplinary process governed by CSC Memorandum Circular No. 40, series of 1998 (MC 40-98). The only difference between the two modes of separation is that the first carries administrative disabilities, such as forfeiture of retirement benefits and perpetual disqualification from employment in the government service, while the second does not.But both result in loss of employment a property right protected under the due process clause. Hence, even if considered a non-disciplinary mode of separation, dropping from the rolls due to mental incapacity not arising from immoral or vicious habits is subject to the requirements of due process,as prescribed in the following provisions of MC 40-98: Rule XII Section 2. Dropping from the Rolls. Officers and employees who are either habitually absent or have unsatisfactory or poor performance or have shown to be physically and mentally unfit to perform their duties may be dropped from the rolls subject to the following procedures: 2.3 Physically and Mentally Unfit

For the purpose of the three (3) preceding paragraphs, notice shall be given to the employee containing a brief statement of the nature of his incapacity to work. 2.6 This mode of separation from the service for unauthorized absences or unsatisfactory or poor performance or physical and mental incapacity is non-disciplinary in nature and shall not result in the forfeiture of any benefits on the part of the official or employee nor in disqualifying him from employment in the government; 2.7 The written notice mentioned in the preceding paragraphs may be signed by the person exercising immediate supervision over the official or employee. However, the notice of separation shall be signed by the appointing authority or head of office. Clearly, before an officer or employee may be dropped from the rolls for mental incapacity, the following elements and process must obtain: first, that it has been observed that the subject officer or employee has been behaving abnormally for an extended period; second, that it has been established through substantial evidence that such abnormal behavior manifests a continuing mental disorder and incapacity to work; third, that a written notice is issued by the subjects immediate supervisor, describing the formers continuing mental disorder and incapacity to work and citing the reports of his co-workers or immediate supervisor, as confirmed by the head of office; and finally, that another notice is issued by the appointing authority or head of office, informing the subject of his separation from the service due to mental incapacity. Thus, a declaration of mental disorder does not automatically translate to a judgment of mental incapacity to perform work. A window remains open for the affected officer or employee to counter opinion on his mental condition and to show that his ability to work remains unimpaired. Only then may the appointing authority or head of office decide on whether said officer or employee is no longer mentally capable of performing his work and should be discharged. These requirements are designed to obviate misuse of non-disciplinary modes of separation for petty vengeance or vicious harassment. MCWD did not sufficiently proved that Romagos mental condition has rendered her incapacitated to work as to justify her being dropped from the rolls All that the 1989 and 1991 medical certifications established is that, during said periods, petitioner was diagnosed to be suffering from Major Depression. These certifications hardly prove that petitioners behavior manifests a continuing mental disorder and incapacity to work. In fact, the 1991 medical certification of Dr. Obra points to the contrary for it states that petitioner "may go back to work provided that she will come back for check up as scheduled. This view is bolstered by other documents of record, which respondent did not dispute, such as petitioners school transcripts, indicating that from 1980 to 1995 the latter took a graduate course in business administration at the Southwestern University. Such

endeavor negates the notion that from the time of her first diagnosis in 1989 to the time of her separation in 1999, petitioner was suffering from a mental impediment to work. Another evidence of petitioner's continuing capacity to work despite her mental condition is her performance ratings for 1996 and 1998, copies of which are of record In both evaluations, petitioners work performance was rated "very satisfactory". Petitioners rate, Editha Luzano, even remarked about an improvement in petitioners performance. More telling is the August 20, 1999 medical certification issued by Dr. Obra which categorically declared petitioner "physically and mentally fit to go back to work. While there is no question that at the time she was dropped from the rolls, Romagos was suffering from a protracted mental disorder, the same did not render her incapable of performing her work. There was therefore an incomplete cause or justification to drop her from the rolls. -Aries 8. CIVIL SERVICE COMMISSION V. SOJOR -Lulu 9. OFFICE OF THE OMBUDSMAN V. TORRES -K.Edwin

D. IMPEACHMENT 1. CUENCO V. FERNAN A.M. No. 3135 February 17, 1988 MIGUEL CUENCO vs. HON. MARCELO B. FERNAN Facts: On 13 March 1952, Vito Borromeo died without any forced heirs, but leaving behind extensive properties situated in the province of Cebu. On 19 April 1952, a Petition for probate (docketed as Special Proceedings No. 916-R) of a one-page document purportedly the last will and testament of the decedent was filed with the then Court of First Instance of Cebu. Those instituted under said will as the sole heirs of the late Vito Borromeo were Fortunate, Tomas and Amelia, an surnamed Borromeo. On 28 May 1960, the probate court rendered a Decision declaring the will to be a forgery. That decision became final in 1967 after being affirmed by this Court in Testate Estate of Vito Borromeo Jose H. Junquera vs. Crispin Borromeo, et al., 19 SCRA 656 [1967]. In the intestacy proceedings that ensued, nine (9) individuals were declared by the trial court as the rightful successors to the decedent Vito Borromeo's estate. During the course of the intestacy proceedings, several petitions were filed with this Court by the parties involved therein. These petitions are: G.R. No. L-41171 (entitled "Intestate Estate of the Late Vito Borromeo. Patrocinio Borromeo-Herrera v. Fortunato Borromeo, et al. G.R. No. 55000 (entitled "In the Matter of the Estate of Vito Borromeo, Deceased. Pilar N. Borromeo, et al. v. Fortunate Borromeo"); G.R. No. 62895 (entitled 'Jose Cuenco Borromeo v. Court of Appeals, et al. G.R. No. 63818 (entitled 'Domingo Antigua, et al. v. Court of appeals, et al."); and G.R. No. 65995 (entitled "Petra Borromeo, et al. v. Francisco P. Burgos, etc., et al."). These five (5) petitions, having emanated from a common source and being closely interrelated, were subsequently consolidated. In a Manifestation dated 22 August 1987 and filed with this Court on 24 August 1987, complainant Cuenco requested that he be given until 22 September 1987 within which to file a motion for reconsideration of the aforementioned decision in the consolidated petitions. This request was granted by the Court. Meanwhile, on 19 November 1987, the Court, sitting en banc resolved, among other things, to dismiss for lack of merit Administrative Matter No. R-593-RTJ and Administrative Matter No. R-672-RTJ, filed by complainant Cuenco and Numeriano E. Estenzo, respectively, against Judge Francisco P. Burgos, the former trial judge at the Vito Borromeo intestate estate proceedings. Complainant Cuenco, who had represented a group of heirs in the Vito Borromeo intestate estate proceedings, makes the following allegations in his complaint for disbarment 1. That Mr. Justice Fernan, in Civil Case No. R-7646 filed with Branch III of the then Court of First Instance of Cebu, appeared as counsel for the three (3) instituted heirs (i.e., Fortunato, Tomas and Amelia, all surnamed Borromeo) and despite having already accepted his appointment as an Associate Justice of the Court, "continues to be counsel for the instituted heirs;' 2. That Mr. Justice Fernan "had exerted personal efforts to take away from the Supreme Court en banc, the First and Second Divisions of the Tribunal, the Vito

Borromeo proceedings to his Office as Chairman of the Third Division to enable him to influence the decision or the outcome of the Vito Borromeo proceedings " 3. That Mr. Justice Fernan "has operated his Office in Cebu City as a Star Chamber to fabricate fake and fictitious heirs of Vito Borromeo," an action which will not only dilute and diminish the distributive shares of complainant's clients, but "will prolong indefinitely the agony of Miguel Cuenco and Judge Fernando Ruiz to have their attorney's fees paid;" 4. That Mr. Justice Fernan has 'practically abolished and crippled the legitimate functions of the Court of Appeals in CA. G.R. No. 08093, knowingly (sic) that the claims for attorney's fees of movant Miguel Cuenco and Judge Fernando Ruiz are pending in the Court of Appeals,' thereby 'render[ing] impossible the payment of Miguel Cuenco's attorney's fees for his services rendered to the Vito Borromeo Estate. 5. That Mr. Justice Fernan's strong and unyielding determination to collect big sums of money in payment of his legal services rendered to his clients' had induced the Honorable Justice, as Chairman of the Court's Third Division, to unduly influence the Members thereof into dismissing Atty. Cuenco complaint (Administrative Matter No. R-593-RTJ) against Judge Francisco P. Burgos, then the trial judge in the intestacy proceedings, thereby resurrecting the claim of the three (3) instituted heirs over the thirteen (13) commercial lots subject of Civil Case No. R-7646; and 6. That Mr. Justice Fernan "had wilfully, persistently, stubbornly and systematically violated his Oath of Office as a lawyer which imposes upon him the duty not to delay any man for money or malice." Issue: Whether or not Justice Fernan should be removed from his office.. Held: We find complainant's charges against Mr. Justice Fernan completely unsupported by the facts and evidence of record. 1. We have found nothing in the record of the Vito Borromeo estate proceedings and complainant Cuenco has failed to point to anything therein to indicate that Mr. Justice Fernan had appeared as counsel in such proceedings representation of instituted heir and claimant Fortunato Borromeo, who was represented in those proceedings, as early as 19 January 1953, by Atty. Juan Legarte Sanchez. Mr. Justice Fernan did enter his appearance on 7 August 1965 as counsel, in collaboration with Atty. Crispin Baizas, for claimants Tomas and Amelia Borromeo in Special Proceedings No. 916-R. 1 The record, however, reveals that Mr. Justice Fernan withdrew as such counsel as early as 19 February 1968. 2 The records of this case are bereft of any suggestion that Mr. Justice Fernan had represented any of these instituted heirs in any other case or proceeding arising from or related to Special Proceedings No. 916-R. Complainant Cuenco has submitted nothing at all to support his accusation that Mr. Justice Fernan "continues to be counsel for the instituted heirs." It is entirely clear that Mr. Justice Fernan's professional involvement in Special Proceedings No. 916-R had ceased long before his appointment to this Court in April of 1986. 2. Prior to the appointment of Mr. Justice Fernan to the Court, the aforementioned five (5) consolidated petitions had already been assigned for preliminary study to Mr. Justice Hugo E. Gutierrez, Jr., the ponente of the disputed Decision in G.R. Nos. L-41171, 55000, 62895, 63818 and 65995 and a Member then of the Court's First Division. The subsequent designation of Mr. Justice Fernan as Chairman of the Court's Third Division and the assignment of Mr. Justice Gutierrez along with three other Members of the Court to said Third Division, after the 1987 Constitution went into effect, were determined and carried out

by the Chief Justice in accordance with the time-honored procedures followed by the Court in those matters and were, thus, circumstances of pure coincidence. Mr. Justice Gutierrez brought the Vito Borromeo estate cases (and all other pending cases previously assigned to him) along with him to the Third Division of the Court when the third Division was organized in accordance with procedures agreed upon by the Court en banc. Mr. Justice Fernan inhibited himself from participating in the deliberations on the Vito Borromeo estate cases and, in fact, did not take part in the resolution thereof; this was made explicit by the annotation appearing beside his signature: "No part I appeared as counsel for one of the parties". This express statement on the record has been totally ignored by complainant Cuenco. Thus, not only has complainant Cuenco failed to submit anything at all to support his accusation that Mr. Justice Fernan 'had exerted personal efforts' to have the Vito Borromeo estate cases assigned to the Third Division "to enable him to influence the outcome" thereof; complainant Cuenco is simply and clearly wrong in charging that Mr. Justice Fernan had anything to do with the assignment of those estate cases to the Third Division of the Court. The record is bare of any suggestion that complainant Cuenco made any effort to inform himself on the procedures followed by this Court in constituting itself into three (rather than two) Divisions, before making his accusation. 3. The principal opposing parties in the Vito Borromeo intestate estate proceedings are, on the one hand, the group of heirs instituted under the will (i.e., Fortunate, Tomas and Amelia, an surnamed Borromeo) and, on the other hand, the group of heirs a number of whom are represented by complainant Cuenco declared as such by the trial court subsequent to the declaration of nullity of said will. One of the main reasons that said proceedings had dragged on for such a long period of time is that the three (3) instituted heirs had sought, as early as 1954, the exclusion, from the inventory of the late Vito Borromeo's estate, of thirteen (13) parcels of land over which the three claimed rights of ownership, and which rights continued to be asserted against the other heirs- claimants. As far as the records show, there are no other persons claiming successional rights adverse to those of either of the two major groups of heirs in the intestacy proceedings. Viewed in the light of the foregoing, Mr. Justice Fernan could not have, as claimed by complainant Cuenco, "fabricate[d] fake and fictitious heirs Vito Borromeo." The Court is unable to see how Mr. Justice Fernan, whose involvement in the Vito Borromeo estate proceedings began on 7 August 1965 and ended on 19 February 1968, could have had any control or influence over the actions of the instituted heirs (Fortunate, Tomas and Amelia Borromeo) either in 1952 when Special Proceedings 916-R for probate of the will was, or in 1954 when said heirs claimed rights of ownership over the aforementioned thirteen (13) parcels of land and sought to exclude them from the estate of the decedent. We think it clear, that complainant Cuenco was here making, once again, a totally baseless accusation which he made no effort to support as he could not support it. 4. The dispositive portion of our Decision in the consolidated estate cases states in part: ... The lawyers should collect from the heirs-distributees who individually hired them, attorney's fees according to the nature of the services rendered but in amounts which should not exceed more than 20% of the market value of the property the latter acquired from the state as beneficiaries. It is evident that the "legitimate functions" of the Court of Appeals in C.A. G.R. No. 08093 where complainant Cuenco has filed a claim for payment of attorney's fees have not been abolished and crippled" by the mere fact that the maximum amounts, expressed in a percentage of the market value of the distributive shares received from the estate, of attorney's fees had been determined and set by this Court. This is a matter well within the competence and authority of the Court. Furthermore, the Court is unable to see how payment of complainant Cuenco's attorney's fees for services rendered in the Vito Borromeo estate case has been "rendered impossible;' while final settlement of the decedent's estate may have to be awaited, payment of such fees may nevertheless be expected in due course. 5. In Administrative Matter No. R-593-RTJ, complainant Cuenco charged Judge Francisco P. Burgos, former trial judge in the Vito Borromeo intestate estate proceedings, with "gross incompetence and

manifest negligence" for allegedly having intentionally delayed settlement of the estate of the late Vito Borromeo. In an En Banc Resolution dated 19 November 1987, tills Court, having found that the delay complained of was caused by several factors beyond the control of respondent judge, dismissed that complaint for lack of merit. The Court is completely unable to understand the claim of complainant Cuenco that dismissal of administrative Matter No. R-593-RTJ, has "resurrected, rejuvenated and reinvigorated the claims of the three (3) instituted heirs (Fortunate, Tomas and Amelia Borromeo) over the aforementioned thirteen (13) parcels of land. The Court is also baffled by complainant Cuenco's assertion that such dismissal "has a great money value in itself" and would result in the big increase of assets of the Vito Borromeo Estate." As pointed out above, complainant Cuenco's complaint in A.M. No. R-593-RTJ was dismissed by a Resolution of the Court en banc, not of the Third Division as Cuenco apparently believes. In any case, the Members of the Third Division of the Court expressly reject complainant Cuenco's assertion or insinuation that they were unduly influenced by any consideration other than the simple lack of merit of the complaint in A.M. No. R-593-RTJ. 6. There is no in the record, other than the undocumented assertions of complainant Cuenco, that would suggest that Mr. Justice Fernan has violated his oath of office as a lawyer either during the time when he was collaborating counsel for Tomas and Amelia Borromeo in the proceedings below or thereafter, and since joining this Court. Complainant Cuenco has offered not a shred of evidence to support his serious accusations against Mr. Justice Fernan. Indeed, complainant Cuenco is either unaware of the seriousness of the charges he made against Mr. Justice Fernan, or complainant Cuenco, if he is aware of the nature of the charges he has brought, has acted with bad faith. Of his own accord, Mr. Justice Fernan made a statement to the Court en banc and embodied that in a Memorandum given to the Members of the Court on 17 December 1987. In this Memorandum, Mr. Justice Fernan invited attention to his written Appearance and Motion to Withdraw as Counsel (already referred to above) and stressed that he had ceased a long time ago to act as counsel for the two Borromeos mentioned earlier and that he did not in any way take part in the deliberations and decision of G.R. Nos. 41171, etc. By a telegram dated 6 January 1988, complainant Cuenco asked for leave to file a "Clarificatory Memorandum based on official court records already filed in Supreme Court before and after Honorable Fernan was appointed Justice of the Supreme Court " by 24 February 1988. By a Resolution dated 14 January 1988, the Court granted complainant Cuenco leave to file a "Clarificatory Memorandum" within a non-extendible period of ten (1 0) days from notice thereof. Complainant Cuenco received a copy of Resolution of the Court on 26 January 1988. To date, no memorandum has been filed by complainant Cuenco. From the above quoted telegram (to the extent the Court can understand it), it appears that complainant Cuenco believes that he is preparing a memorandum addressing, not the administrative charges he has preferred against Mr. Justice Fernan, but rather the merits of the consolidated petitions in G.R. Nos. L41171, etc. There appears no reason therefore why the Court should entertain this second request of complainant Cuenco. The Court could have dismissed outright the complaint of Mr. Cuenco, since the Court could have simply taken judicial notice of the record of the consolidated petitions filed before the Court and since the other charges made relate to matters peculiarly within the knowledge of Members of the Third Division of the Court. The Court has, nevertheless, gone into substantial detail in dealing with the accusations so freely made by complainant Cuenco, apparently in his concern over the amount of the attorney's fees he can hope to claim and collect from some of the distributees of the Vito Borromeo Estate. The Court has done so precisely because the person charged is a Member of this Court. The record of this case suggests strongly, however, that those accusations were not only instituted without any basis but were also made recklessly without regard for the good name and reputation of Mr. Justice Fernan. Indeed, those charges fly in the face of the record itself, which complainant has casually chosen to ignore.

There is another reason why the complaint for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumvent and hence to ran afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], id.), and the members of the Commission on audit who are not certified public accountants (Article XI [D] [1] [1], id.), all of whom are constitutionally required to be members of the Philippine Bar. ACCORDINGLY, the Court Resolved to DISCUSS the charges made by complainant Cuenco against Mr. Justice Fernan for utter lack of merit. The Court, further, Resolved to REQUIRE complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan within ten (10) days from notice hereof. SO ORDERED. -Evelyn 2. IN RE: RAUL M. GONZALEZ A.M. No. 88-4-5433 April 15, 1988 DOCTRINE: the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance with law" may not prosper. FACTS: The Court CONSIDERED the 1st Indorsement a "letter-complaint, with enclosure of the Concerned Employees of the Supreme Court," together with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications of policy raised by said 1st Indorsement. The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention. The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam Resolution, of the Court in Administrative Case No. 3135 entitled "Miguel Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the charges made by complaint Cuenco

against Mr.Justice Fernan for utter lack of merit. In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr. Cuenco, the Court had granted him an extension of up to 30 March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion for Reconsideration. By a per curiam Resolution, the Court denied with finality Mr Cuenco's Motion for Reconsideration. ISSUE: W/N Justice Fernan may be disbarred considering that he is a public officer HELD: NO, a public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. The Court dealt with this matter in its Resolution in Administrative Case No. 3135 in the following terms: There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id.), all of whom are constitutionally required to be members of the Philippine Bar. Section 2, Article XIII of the 1973 Constitution provides: Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption." It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court. It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings.

-Charie

and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. Issues: (1) Whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) Whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Ruling: Constitutionality of the Rules of Procedure for impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

3. FRANCISCO JR. V. HOUSE OF REPRESENTATIVE Facts: On June 2, 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" as regards the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, and was referred to the House Committee on Justice on August 5, 2003.The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form," but voted to dismiss the same on October 22, 2003 for being insufficient in substance.

Four months and three weeks since the filing of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution.

This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives. Thus arose the instant petitions 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.

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress," posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint

xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, refers to two objects, "impeachment case" and "impeachment proceeding." Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment

proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court. Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of

the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral. Validity of the Second Impeachment Complaint 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. In fine, 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. -Leannie 4. OFFICE OF OMBUDSMAN V. TORRES DOCTRINE: The enumeration in the Constitution of the impeachable officers is exclusive. The Ombudsman is only one man, not including his Deputies. Thus, only the Ombudsman, not his deputies, is impeachable. On 29 December 1999, twenty- two officials and employees of the Office of the Deputy Ombudsman for the Visayas, led by its two directors, filed a complaint with the Office of the Ombudsman requesting an investigation on the basis of allegations that then Deputy Ombudsman for the Visayas, herein private respondent Arturo Mojica, committed (1) sexual harassment against Rayvi Padua- Varona, mulcting money from confidential employees: James Alueta and Eden Kiamco and (3) oppression against all employees in not releasing P7,200.00 in benefits of OMB- Visayas employees on the date the said amount was due for release. Fact-finding investigation was conducted by the Office of the Ombudsman and the report was referred by the Ombudsman to a constituted Committee of Peers which initially recommended that the investigation be converted into one solely for purposes of impeachment. However, this recommendation was denied by the Office of the Ombudsman and following the stand of the Office of the Ombudsman that the Deputy Ombudsmen and The Special Prosecutor are not removable through impeachment. On 18 December 2000, despite the expiration of private respondent

Mojica's term of office, the Court of Appeals nevertheless rendered the assailed Decision on the grounds of public interest. CA ruled that the Deputy Ombudsman is an impeachable officer. Thus, OMB's appeal. ISSUE: 1. Whether or not the Ombudsmans Deputies are impeachable 2. Whether or not the Deputy Ombudsman may be held criminally and/or administratively liable RULING: Order of the CA is REVERSED and SET ASIDE. The complaints in Criminal Case No. OMB0-00-0616 and Administrative Case No. OMB-ADM-0-00-0316 are REINSTATED and the Office of the Ombudsman is ordered to proceed with the investigation relative to the above cases. Ombudsman's Deputies Not Impeachable The Deputy Ombudsman is not an impeachable officer. Sec. 2, Article XI of the 1987 Constitution states that The President, the Vice- President, the members of the Supreme Court, the members of the Constitutional Commissions and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from Office as provided by law, but not by impeachment. Records of the Constitutional Commission, as well as the opinions of leading commentators in Constitutional Law reveal that the term Ombudsman in Sec. 2, Article XI of the 1987 Constitution refer to the rank in itself. The Ombudsman is only one man, not including his Deputies. Leading legal luminaries on the Constitution are one in their opinion as to whether or not the Deputy Ombudsman is impeachable. All of them agree that the enumeration impeachable officers in Section 2, Article XI of the 1986 Constitution, is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable. How then to explain our earlier pronouncement in Cuenco v. Fernan, as later cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella which reads: To grant a complaint for disbarment of a Member of the Court during the Members incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI [2] of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2]) all of whom are constitutionally required to be members of the Philippine Bar? A dictum is an opinion that does not embody the resolution or determination of the court, and made without argument, or full consideration of the point. Mere dicta are not binding under the doctrine of stare decisis. The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, does Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella, which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits. Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented. Criminal and Administrative Liability of Deputy Ombudsman As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal

prosecution in the courts. Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the formers retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 f the Anti-Graft and Corrupt Practices Act.

-Nathan E. SANDIGANBAYN AND OMBUDSMAN 1. PEOPLE V. SANDIGANBAYAN Doctrine:

In Quimpo v. Tanodbayan, this Court, already mindful of the pertinent provisions of the 1987 Constitution, ruled that the concerned officers of government-owned or controlled corporations, whether created by special law or formed under the Corporation Code, come under the jurisdiction of the Sandiganbayan for purposes of the provisions of the Anti-Graft and Corrupt Practices Act. Facts: Pursuant to a resolution of the Office of the Ombudsman, two separate informations for violation of Section 3(e) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, were filed with the Sandiganbayan against Efren L. Alas. The charges emanated from the alleged anomalous advertising contracts entered into by Alas, in his capacity as President and Chief Operating Officer of the Philippine Postal Savings Bank (PPSB), with Bagong Buhay Publishing Company which purportedly caused damage and prejudice to the government. Alas filed a motion to quash the informations for lack of jurisdiction. After considering the arguments of both parties, the respondent court ruled that PPSB was a private corporation and that its officers, particularly herein respondent Alas, did not fall under Sandiganbayan jurisdiction. According to the Sandiganbayan: The records disclosed that while Philippine Postal Savings Bank is a subsidiary of the Philippine Postal Corporation which is a government owned corporation, the same is not created by a special law. It was organized and incorporated under the Corporation Code. Under its Articles of Incorporation the purpose for which said entity is formed was primarily for business. Obviously, it is not involved in the performance of a particular function in the exercise of government power. Thus, its officers and employees are not covered by the GSIS and are under the SSS law, and actions for reinstatement and backwages are not within the jurisdiction of the Civil Service Commission but by the NLRC. The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporation created by special charter are subject to its provision while those incorporated under the general corporation law are not within its coverage. Dissatisfied, the People, through the Office of the Special Prosecutor (OSP), filed this petition arguing, in essence, that the PPSB was a government-owned or controlled corporation as the term was defined under Section 2(13) of the Administrative Code of 1987. Likewise, in further defining the jurisdiction of the Sandiganbayan, RA 8249 did not make a distinction as to the manner of creation of the governmentowned or controlled corporations for their officers to fall under its jurisdiction. Hence, being President and Chief Operating Officer of the PPSB at the time of commission of the crimes charged, respondent Alas came under the jurisdiction of the Sandiganbayan.

Issue:

Whether or not the Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of government-owned or controlled corporations organized and incorporated under the Corporation Code.

The legislature, in mandating the inclusion of "presidents, directors or trustees, or managers of government-owned or controlled corporations" within the jurisdiction of the Sandiganbayan, has consistently refrained from making any distinction with respect to the manner of their creation. The deliberate omission, in our view, clearly reveals the intention of the legislature to include the presidents, directors or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption. Had it been otherwise, it could have simply made the necessary distinction. But it did not. In Quimpo v. Tanodbayan, this Court, already mindful of the pertinent provisions of the 1987 Constitution, ruled that the concerned officers of government-owned or controlled corporations, whether created by special law or formed under the Corporation Code, come under the jurisdiction of the Sandiganbayan for purposes of the provisions of the Anti-Graft and Corrupt Practices Act. -Kuting 2. OFFFICE OF THE OMBUDSMAN V. CIVIL SERVICE COMMISSION

Held:

Yes. Government owned or controlled corporations refer to any agency organized as a stock or non-stock corporation vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or indirectly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations to the extent of at least 51% of its capital stock. From the foregoing, PPSB fits the bill as a government-owned or controlled corporation, and organized and incorporated under the Corporation Code as a subsidiary of the Philippine Postal Corporation (PHILPOST). More than 99% of the authorized capital stock of PPSB belongs to the government while the rest is nominally held by its incorporators who are/were themselves officers of PHILPOST. The creation of PPSB was expressly sanctioned by Section 32 of RA 7354, otherwise known as the Postal Service Act of 1992. It should be pointed out that the jurisdiction of the Sandiganbayan is separate and distinct from the Civil Service Commission. The same is governed by Article XI, Section 4 of the 1987 Constitution which provides that "the present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law." This provision, in effect, retained the jurisdiction of the anti-graft court as defined under Article XIII, Section 5 of the 1973 Constitution which mandated its creation, thus: Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offense committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law. On March 30, 1995, Congress, pursuant to its authority vested under the 1987 Constitution, enacted RA 7975 maintaining the jurisdiction of the Sandiganbayan over presidents, directors or trustees, or managers of government-owned or controlled corporations without any distinction whatsoever. Thereafter, on February 5, 1997, Congress enacted RA 82499 which preserved the subject provision: Section 4, Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations.

1.

By letter dated March 7, 1994 addressed to then Ombudsman Conrado M. Vasquez, the CSC approved the Qualification Standards for several positions in the Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III. The Career Executive Service Board (CESB) subsequently advised the Ombudsman, by letter of May 29, 1996, that pursuant to CSC Memorandum Circular No. 21, s.1994, the position of Graft Investigation Officer III, among other positions in petitioner therein mentioned, was classified as a Career Executive Service (CES) position, hence, governed by the rules of the CES pertaining to eligibility, appointment to CES ranks, and performance evaluation, among other things. On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group (CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted Joint Resolution No. 62. On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by the Ombudsman. The CSC approved the appointments on the condition that for the appointees to acquire security of tenure, they must obtain CES or Civil Service Executive (CSE) eligibility which is governed by the CESB. By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of status, from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), as affirmed by the Supreme Court, the Ombudsman wrote: In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision thereby effectively granted the petition of Mr. Inok for security of tenure as Director II of the Commission on Audit despite the absence of a CES eligibility.

2.

3.

4.

5.

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6. 7.

It appears that Carandang and Clemente were in the meantime conferred with CSE Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003. Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft Investigation and Prosecution Officer III. The Ombudsman thereupon requested the approval of the proposed Qualification Standards for the reclassified positions. With respect to the reclassified Graft Investigation and Prosecution Officer III position, the Qualification Standards were the same as those for Graft Investigation Officer III. Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed the status of Carandangs and Clementes appointments to permanent effective June 6, 2003, but not with respect to De Jesus on the ground that he has not met the eligibility requirements. Hence, the present petition.

It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority. It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too. Petition is GRANTED. -Ian 3. UY V. SANDIGANBAYAN DOCTRINE: The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein). The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts. FACTS: Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling that the prosecutory power of the Ombudsman extends only to cases cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the jurisdiction of regular courts. The Court stated in its decision that In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. ISSUE: 1. Whether or not the jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader jurisdiction of the Office of the Ombudsman. 2. Whether or not the phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan" is not a delimitation of its jurisdiction solely to Sandiganbayan cases, and 3. Whether or not the authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan cannot be confused with the broader investigatory and prosecutorial powers of the Office of the Ombudsman. HELD: We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well.

8.

ISSUE: Whether or not the CSC can curtail the appointing power of the Ombudsman over the latters own officials. HELD: Petitioner contends that the CSC misreads the ratio of the appellate court decision in Inok. It contends that the Ombudsman, as an appointing authority, is specifically tasked by the Constitution to choose his own qualified personnel, which includes the lesser power of granting security of tenure to his appointees once the basic qualification requirements are satisfied. Petitioner likewise contends that its constitutional discretion as an independent appointing authority cannot be curtailed by the CSC which has no authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. Petitioner further contends that the CES Eligibility, as administered by the respondent CESB, cannot be validly made a requisite for the attainment of security of tenure on qualified career officials of petitioner who are not legally part of the CES. Finally, petitioner argues that its officials which are appointed by the Ombudsman are technically classified as belonging to the Closed Career Service, the positions being unique and highly technical as they involve investigatorial, quasi-judicial and prosecutorial functions, in much the same way as judges are involved in judicial functions. Hence, petitioner concludes, appointment to such positions is likewise characterized by security of tenure. The petition is impressed with merit.That the positions subject of the present case are unique and highly technical in nature, as are those of the Judiciary, is recognized by the constitutional offices under the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member. Inok cannot be invoked as precedent in arriving at the question raised in this petition. This Court dismissed the petition of the CSC in the Inok case on a technicality therein petitioner CSCs failure to file a reply within the required period and not on the merits. Under Book V, Title I, Subtitle A of the Administrative Code of 1987 persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution. To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else.

The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770. The concept of Ombudsman originated in Sweden in the early 19 th century, referring to an officer appointed by the legislature to handle the peoples grievances against administrative and judicial actions. He was primarily tasked with receiving complaints from persons aggrieved by administrative action or inaction, conducting investigation thereon, and making recommendations to the appropriate administrative agency based on his findings. He relied mainly on the power of persuasion and the high prestige of the office to effect his recommendations. In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the peoples medium for airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the view of raising the standard in public service and ensuring integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation. These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations and

the Office of the Citizens Counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the political independence necessary for the effective performance of their function as government critic. Furthermore, their powers extended to no more than fact-finding and recommending. Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the office of an Ombudsman, to give it political independence and adequate powers to enforce its recommendations. The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate body in case of failure of justice. With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and to notify the complainants of the action taken and the result thereof. He possesses the following powers, functions and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; 2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties. 3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive and relay the people's grievances, but also the duty to investigate

and prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law. 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. Recognizing the importance of this power, the Court cannot derogate the same by limiting it only to cases cognizable by the Sandiganbayan. It is apparent from the history and the language of the present law that the legislature intended such power to apply not only to cases within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular courts. The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein). The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts. -Celyn 4. CASTRO V. DELORIA FACTS: On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public Funds. It was alleged in the complaint that on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista, Province of Guimaras, the accused, a public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such, was in the custody and possession of public funds in the amount of P556,681.53 representing the value of her collections and other accountabilities, for which she is accountable by reason of the duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public position. Petitioner pleaded not guilty when arraigned on February 16, 2001. On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan, petitioner further argued that as she was a public employee with salary grade 27, the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by the Sandiganbayan. The RTC denied the Motion to Quash where it held that the jurisdiction of the RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter for the offense charged. Moreover, it sustained the prosecutorial authority of the Ombudsman in the case, pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory authority of the Ombudsman in cases cognizable by the RTC. ISSUES: 1.Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme Courts ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of the Ombudsman is limited to cases cognizable by the Sandiganbayan.

2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the constitutional provision on ex-post facto laws and denial of the accused to due process. Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26, 2000, then the August 9, 1999 Decision in Uy was applicable, notwithstanding that the said decision was set aside in the March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case. HELD: The Supreme Court held that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. In the case of Office of the Ombudsman v. Enoc, wherein accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court in Uy in a motion to dismiss the 11 counts of malversation that were filed against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the Ombudsman, the Court reversed the RTC and held: In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the

evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute criminal case against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him with the regular prosecutors. It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. As to the second issue the Court held that the March 20, 2001 Resolution in Uy made no declaration of unconstitutionality of any law nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case. Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes conducted by the Ombudsman, such as the filing of the Information against petitioner. With the foregoing disquisition, the second issue is rendered moot and academic SO ORDERED.

01-00-81, 4-01-00-82, and 4-01-00-84. The Ombudsman found the complaint-affidavit of Mary Ong sufficient in form and substance and thus required the respondents therein to file their counter-affidavits on the charges. On February 28, 2001, said respondents submitted their counter-affidavits and prayed that the charges against them be dismissed. Subsequently, on March 9, 2001, Mary Ong and other witnesses executed sworn statements before the NBI, alleging the same facts and circumstances revealed by Mary Ong in her complaint-affidavit before the Ombudsman.1 NBI Director Reynaldo Wycoco, in a letter dated May 4, 2001 addressed to then Secretary of Justice Hernando Perez, recommended the investigation of Lacson, Aquino, other PNP officials, and private individuals for the following alleged crimes: a.) kidnapping for ransom of Zeng Jia Xuan, Hong Zhen Quiao, Zeng Kang Pang, James Wong and Wong Kam Chong; b.) murder of Wong Kam Chong; and c.) kidnapping for ransom and murder of Chong Hiu Ming.2 In the said letter, Director Wycoco likewise manifested that this recommendation was made after taking the sworn statements of Mary Ong and other witnesses such as Chong Kam Fai, Zeng Kang Pang, and Quenna Yuet Yuet. The sworn statements of these witnesses were attached to the letter.3 On May 7, 2001, a panel of prosecutors from the DOJ sent a subpoena to Lacson, Aquino and the other persons named in the witnesses sworn statements. Lacson and Aquino received the subpoena on May 8, 2001. The subpoena directed them to submit their counter-affidavits and controverting evidence at the scheduled preliminary investigation on the complaint filed by the NBI on May 18, 2001 at the DOJ MultiPurpose Hall. However, Lacson and Aquino, through their counsel, manifested in a letter dated May 18, 2001, that the DOJ panel of prosecutors should dismiss the complaint filed therewith by Mary Ong since there are complaints pending before the Ombudsman alleging a similar set of facts against the same respondents. Furthermore, they claimed that according to the Courts ruling in gr_ Uy v. Sandiganbayan,4 the Ombudsman has primary jurisdiction over criminal cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, he may take over, at any stage, from any investigatory agency of Government, the investigation of such cases involving public officials, including police and military officials such as private respondents.5 The DOJ construed the aforesaid letter as a motion to dismiss and, on May 28, 2001, denied the dismissal of the cases before it through an Order that stated the following as basis of the denial: It appearing that the subject letter is essentially a motion to dismiss which is not allowed under the Revised Rules of Criminal Procedure[;] It appearing further that respondents rank and/or civil service classification has no bearing in the determination of jurisdiction as the crimes charged herein do not involve violation of the Anti-Graft and Corrupt Practices Act, Unlawfully Acquired Property [or] Bribery, nor are they related to respondents discharge of their official duties; It appearing finally that paragraph 2 of the Joint Circular of the Office of the Ombudsman and the Department of Justice No. 95-001 dated October 5, 1995, provides that offenses committed not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the Office of the Provincial/City Prosecutor which shall rule thereon with finality;6

-Len 5. DEPARTMENT OF JUSTICE V. LIWAG G.R. No. 149311 February 11, 2005

THE DEPARTMENT OF JUSTICE, through SECRETARY HERNANDO PEREZ, THE NATIONAL BUREAU OF INVESTIGATION through DIRECTOR REYNALDO WYCOCO, STATE PROSECUTORS LEO B. DACERA III, MISAEL M. LADAGA AND MARY JOSEPHINE P. LAZARO, petitioners, vs. HON. HERMOGENES R. LIWAG, in his capacity as Presiding Judge Branch 55, Regional Trial Court, Manila, PANFILO M. LACSON, MICHAEL RAY B. AQUINO, respondents. DECISION AZCUNA, J.: This is a petition for certiorari and prohibition filed by the Department of Justice (DOJ), and the National Bureau of Investigation (NBI) under it, seeking to challenge the Order dated June 22, 2001 and the Writ of Preliminary Injunction dated June 25, 2001 issued by the late Judge Hermogenes R. Liwag of Branch 55 of the Regional Trial Court of Manila in Civil Case No. 01-100934. The facts are as follows: Alleging that she was a former undercover agent of the Presidential Anti-Organized Crime Task Force (PAOCTF) and the Philippine National Police (PNP) Narcotics Group, Mary Ong filed a complaintaffidavit on January 8, 2001 before the Ombudsman against PNP General Panfilo M. Lacson, PNP Colonel Michael Ray B. Aquino, other high-ranking officials of the PNP, and several private individuals. Her complaint-affidavit gave rise to separate cases involving different offenses imputed to respondents Lacson and Aquino. The cases were docketed as OMB Case Nos. 4-01-00-76, 4-01-00-77, 4-01-00-80, 4-

On the very same day that the DOJ issued the aforesaid Order, the Solicitor General received a copy of a petition for prohibition filed by Lacson and Aquino before the Regional Trial Court (RTC) of Manila. In the said petition for prohibition, Lacson and Aquino maintained that the DOJ has no jurisdiction to conduct a preliminary investigation on the complaints submitted by Mary Ong and the other witnesses. They argued that by conducting a preliminary investigation, the DOJ was violating the Ombudsmans mandate of having the primary and exclusive jurisdiction to investigate criminal cases cognizable by the Sandiganbayan. Again, they relied on Uy v. Sandiganbayan to bolster their claim. On June 22, 2001, Judge Liwag issued the Order herein assailed prohibiting the Department of Justice from conducting the preliminary investigation against Lacson and Aquino. A Writ of Preliminary Injunction was likewise issued by the trial court. The dispositive portion of the Order reads as follows: WHEREFORE, premises considered, the Petition for Prohibition is hereby GRANTED, and accordingly a Writ of Preliminary Injunction is hereby ISSUED, enjoining the respondents and their subordinates, agents[,] and other persons acting in their behalf, individually and collectively, from conducting a preliminary investigation in IS No. 2001-402, insofar as petitioners here are concerned, and directing the petitioners to file their counter-affidavits in said case until such time that the Office of the Ombudsman shall have disclaimed jurisdiction over the offenses subject matter of the investigations before it, or until such Office shall have categorized the said offenses as being committed by the petitioners not in relation to their respective offices. Let the corresponding Writ of Preliminary Injunction, therefore, issue without bond, as there is no showing whatsoever in the pleadings of the parties that the respondents will suffer any injury by reason of the issuance of the writ prayed for, in accordance with Section 4(b), Rule 58 of the Rules of Civil Procedure. SO ORDERED. 7 Hence, this petition was filed before this Court by the DOJ, through then Secretary Hernando Perez, the NBI, through Director Reynaldo Wycoco, and the panel of prosecutors designated by the DOJ to conduct the preliminary investigation of I.S. No. 2001-402. In their petition, they raise the following issues: I PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING THE CRYSTAL CLEAR AUTHORITY OF PETITIONERS DOJ AND THE PANEL OF STATE PROSECUTORS TO CONDUCT PRELIMINARY INVESTIGATION PURSUANT TO ADMINISTRATIVE ORDER NO. 08, SERIES OF 1990 OF THE OFFICE OF THE OMBUDSMAN AND SECTION 4 OF RULE 112 OF THE RULES OF COURT. II PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE OFFICE OF THE OMBUDSMAN HAS TAKEN OVER THE NBI COMPLAINT FILED WITH THE DOJ; AND IN IGNORING THE FACT THAT PRIVATE RESPONDENTS FAILED TO AVAIL OF AN ADEQUATE ADMINISTRATIVE REMEDY BEFORE THE FILING OF A PETITION FOR PROHIBITION. III PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN CONSIDERING THE NBI COMPLAINT FILED WITH THE DOJ AND THE COMPLAINT-AFFIDAVIT FILED BY MARY

ONG BEFORE THE OFFICE OF THE OMBUDSMAN AS INVOLVING ABSOLUTELY THE SAME OFFENSES, RESPONDENTS AND ALLEGED VICTIMS. IV PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING RELIEF TO RESPONDENT MICHAEL RAY B. AQUINO DESPITE THE GLARING FACT THAT HE IS CHARGED WITH SEPARATE AND DISTINCT OFFENSES BEFORE THE OFFICE OF THE OMBUDSMAN AND THE DOJ. V PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN PREJUDGING THE MAIN CASE FOR PROHIBITION BY GRANTING THE SAME DESPITE THE FACT THAT HEARINGS IN THE CASE WERE ONLY HELD FOR THE PURPOSE OF DETERMINING THE MERIT OF THE PRAYER FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION.8 A perusal of the issues raised reveals that the present petition puts forth one central question to be resolved: whether or not the DOJ has jurisdiction to conduct a preliminary investigation despite the pendency before the Ombudsman of a complaint involving the same accused, facts, and circumstances. The addition of other names in the second proceedings does not alter the nature thereof as being principally directed against the respondents herein in connection with substantially the same set of facts alleged. First, however, a threshold question has to be resolved. Petitioners came to this Court without filing a motion before the trial court to reconsider the assailed Order. They maintain that it was imperative for them to do so for the sake of the speedy administration of justice and that this is all the more compelling, in this case, considering that this involves the high-ranking officers of the PNP and the crimes being charged have already attracted nationwide attention. Indeed, this Court finds that time is of the essence in this case. At stake here may not only be the safety of witnesses who risked life and limb to give their statements to the authorities, but also the rights of the respondents, who may need to clear their names and reputations of the accusations against them. Procedural laws are adopted not as ends in themselves but as means conducive to the realization of justice. The rules of procedure are not to be applied when such application would clearly defeat the very rationale for their conception and existence.9 Now, to the merits. The authority of the DOJ to conduct a preliminary investigation is based on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which states: Section 1. Declaration of policy. It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; . . . Section 3. Powers and Functions. To accomplish its mandate, the Department shall have the following powers and functions:

... (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; ... Furthermore, Section 1 of the Presidential Decree 1275, effective April 11, 1978, provides: Section 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscals Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. Respondents Lacson and Aquino claim that the Ombudsman has primary jurisdiction over the cases filed against them, to the exclusion of any other investigatory agency of Government pursuant to law and existing jurisprudence. They rely on the doctrine in Uy v. Sandiganbayan aforementioned, and contend that the Ombudsman, in the exercise of the said primary jurisdiction, may take over, at any stage, from any investigatory agency of Government, the investigation of cases involving public officials, including police and military officials. They likewise claim that it should be deemed that the Ombudsman has already taken over the investigation of these cases, considering that there are already pending complaints filed therewith involving the same accused, facts and circumstances. Section 15, Republic Act No. 6640, known as the Ombudsman Act of 1989, provides: Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; .10 The question is whether or not the Ombudsman has in effect taken over the investigation of the case or cases in question to the exclusion of other investigatory agencies, including the DOJ. In granting the petition for prohibition, RTC Judge Liwag gave the following rationale: Since the Ombudsman has taken hold of the situation of the parties in the exercise of its primary jurisdiction over the matter, it is the feeling of this Court that the respondents cannot insist on conducting a preliminary investigation on the same matter under the pretext of a shared and concurrent authority. In the final analysis, the resolution on the matter by the Ombudsman is final. In the preliminary investigation conducted by the Ombudsman itself, the other investigative agencies of the Government have no power and right to add an input into the Ombudsmans investigation. Only in matters where the other investigative agencies are expressly allowed by the Ombudsman to make preliminary investigation may such agencies conduct the investigation, subject to the final decision of the Ombudsman. That is the situation. It is not otherwise. To allow the respondents to meddle with the investigation of similar cases being investigated by the Ombudsman would put them to a higher plane than the source of their powers with respect to such cases. This is, of course, anathema to orderly judicial procedures. This is contrary to ordinary common sense. It would certainly be presumpt[u]ous, if not ridiculous, for the Department of Justice to be making recommendation as to its preliminary investigation to the Ombudsman in matters

being handled by such Office itself. Such recommendation would be pre-emptive of the actions of the said Office. Such a situation must thus be disallowed. The public respondents capitalized on the fact that the Ombudsman may take over, at any stage, from any investigative agency of the Government, the investigation of cases involving public officials, including police and military officials such as the petitioners. It is the feeling of this Court that the respondents cannot find comfort in that provision of the law. That situation presupposes the conduct by other Government agencies of preliminary investigations involving public officials in cases not theretofore being taken cognizance of by the Ombudsman. If the Ombudsman, as in the case, has already taken hold of the situation of the parties, it cannot take over, at any stage of the proceedings, the investigation being conducted by another agency. It has the case before it. Rudimentary common sense and becoming respect for power and authority would thus require the respondents to desist from interfering with the case already handled by the Ombudsman. Indeed, as conceded by the respondents, they are deputized prosecutors by the Ombudsman. If that is so, and that is the truth, the exercise by the principal of the powers negates absolutely the exercise by the agents of a particular power and authority. The hierarchy of powers must be remembered. The principle of agency must be recalled.11 Section 13, Article XI of the Constitution specifically vests in the Office of the Ombudsman the plenary power to investigate any malfeasance, misfeasance or non-feasance of public officers or employees.12 To discharge its duty effectively, the Constitution endowed the Office of the Ombudsman with special features which puts it a notch above other grievance-handling, investigate bodies. First and foremost, it extended independence to the Ombudsman and insulated it from the intrusions of partisan politics. Thus, the Constitution provided for stringent qualification requirements for the selection of the Ombudsman and his deputies, i.e., they should be natural-born citizens, of recognized probity and independence and must not have been candidates for any elective office in the immediately preceding election.13 The Ombudsman and his deputies were given the rank and salary equal to that of the Chairman and Members, respectively, of the Constitutional Commissions, with a prohibition for any decrease in their salary during their term of office.14 They were given a fixed term of seven years, without reappointment.15 Upon their cessation from office, they are prohibited from running for any elective office in the immediately succeeding election.16 Finally, unlike other investigative bodies, the Constitution granted the Office of the Ombudsman fiscal autonomy.17 Clearly, all these measures are intended to enhance the independence of the Office of the Ombudsman. The Office of the Ombudsman was likewise envisioned by the Constitution to serve as the principal and primary complaints and action center for the aggrieved layman baffled by the bureaucratic maze of procedures. For this purpose, it was granted more than the usual powers given to prosecutors. It was vested with the power to investigate complaints against a public office or officer on its own initiative, even without a formal complaint lodged before it.18 It can inquire into acts of government agencies and public servants based on reports in the media and those which come to his attention through sources other than a complaint. The method of filing a complaint with the Ombudsman is direct, informal, speedy and inexpensive. All that may be required from a complainant is sufficient information detailing the illegal or improper acts complained of. The ordinary citizen, who has become increasingly dependent on public agencies, is put to minimal expense and difficulty in getting his complaint acted on by the Office of the Ombudsman. Vis--vis other prosecutors, the exercise by the Ombudsman of its power to investigate public officials is given preference over other bodies. As aforementioned, Congress itself acknowledged the significant role played by the Office of Ombudsman when it enacted Republic Act No. 6770. Section 15 (1) of said law gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan and authorizes him to take over, at any stage, from any investigatory agency, the investigation of such cases. This power to take over a case at any time is not given to other investigative bodies. All this means that the power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is notco-equal with other investigative bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot claim equal power.

Clearly, therefore, while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code, this general jurisdiction cannot diminish the plenary power and primary jurisdiction of the Ombudsman to investigate complaints specifically directed against public officers and employees. The Office of the Ombudsman is a constitutional creation. In contrast, the DOJ is an extension of the executive department, bereft of the constitutional independence granted to the Ombudsman. Petitioners cannot seek sanctuary in the doctrine of concurrent jurisdiction. While the doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter,19 the settled rule is that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.20 Thus, assuming there is concurrent jurisdiction between the Ombudsman and the DOJ in the conduct of preliminary investigation, this concurrence is not to be taken as an unrestrained freedom to file the same case before both bodies or be viewed as a contest between these bodies as to which will first complete the investigation. In the present case, it is the Ombudsman before whom the complaint was initially filed. Hence, it has the authority to proceed with the preliminary investigation to the exclusion of the DOJ. None of the cases previously decided by this Court involved a factual situation similar to that of the present case. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG), 21 the Court upheld the special authority of the PCGG to conduct the preliminary investigation of ill-gotten wealth cases pursuant to Executive Order No. 1, issued by then President Aquino, creating the PCGG. While the Court emphasized in Cojuangco that the power of the Ombudsman to conduct a preliminary investigation over said cases is not exclusive but a shared authority, the complaints for the alleged misuse of coconut levy funds were filed directly with the PCGG. No complaint was filed with the Office of the Ombudsman. Moreover, a close scrutiny of said case will disclose that the Court recognized the primary, albeit shared, jurisdiction of the Ombudsman to investigate all ill-gotten wealth cases. 22 In fact, it ordered the PCGG to desist from proceeding with the preliminary investigation as it doubted the impartiality of the PCGG to conduct the investigation after it had previously caused the issuance of sequestration orders against petitioners assets. In Sanchez v. Demetriou,23 the Presidential Anti-Crime Commission filed a complaint with the DOJ against petitioner Mayor Sanchez for the rape-slay of Sarmenta and the killing of Gomez. After the DOJ panel prosecutors conducted the preliminary investigation, a warrant of arrest was issued and the corresponding Informations were filed in court by the DOJ prosecutors. Petitioner claimed that it is only the Ombudsman who has the power to conduct investigation of cases involving public officers like him. The Court reiterated its previous ruling that the authority to investigate and prosecute illegal acts of public officers is not an exclusive authority of the Ombudsman but a shared authority. However, it will be noted that the complaint for preliminary investigation in that case was filed solely with the DOJ. In Aguinaldo v. Domagas,24 a letter-complaint charging petitioners with sedition was filed with the Office of the Provincial Prosecutor in Cagayan. After investigation by the DOJ panel of prosecutors, the corresponding Information was filed in court. The pertinent issue raised by petitioners was whether the prosecutors can file the said Information without previous authority from the Ombudsman. The Court ruled in the affirmative and reiterated its ruling regarding the shared authority of the DOJ to investigate the case. Again, it should be noted that the complaint in that case was addressed solely to the provincial prosecutor. The same factual scenario obtains in the cases of Natividad v. Felix 25 and Honasan v. Panel of Investigating Prosecutors of the DOJ26 where the letter-complaint against petitioners public officers were brought alone to the DOJ prosecutors for investigation. In sum, in none of the aforecited cases was the complaint filed ahead with the Office of the Ombudsman for preliminary investigation. Hence, there was no simultaneous exercise of power between two coordinate bodies and no risk of conflicting findings or orders. In stark contrast with the present case, Mary Ong filed a complaint against respondents initially with the Office of the

Ombudsman for preliminary investigation which was immediately acted on by said Office. For reasons not readily apparent on the records, she thereafter refiled substantially the same complaint with the NBI and the DOJ. Not only this. The subsequent assumption of jurisdiction by the DOJ in the conduct of preliminary investigation over the cases filed against the respondents would not promote an orderly administration of justice. Although a preliminary investigation is not a trial, it is not a casual affair either. A preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial.27 When one is hailed before an investigative body on specific charges, the very act of filing said complaint for preliminary investigation immediately exposes the respondent and his family to anxiety, humiliation and expense. To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would leave hapless litigants at a loss as to where to appear and plead their cause or defense. There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents. Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of Government, inaduplication of proceedings already started with the Ombudsman. From all the foregoing, it is clear that petitioners have not shown any grave abuse of discretion tantamount to lack or excess of jurisdiction committed by the respondent Judge. WHEREFORE, the petition is DISMISSED. 6. TAPIADOR V. OFFICE OF OMBUDSMAN G.R. No. 129124 FACTS: A complaint-affidavit was filed with the Resident Ombudsman of the Bureau of Immigration and Deportation by Walter H. Beck, a U.S. citizen, against petitioner, Renato Tapiador, BID Special Investigator and assigned as Technical Assistant in the office of the then Associate Commissioner Subido. The complaint alleged that petitioner Tapiador demanded and received from Walter Beck P10,000.00 in exchange for the issuance of an alien certificate of registration (ACR) which was subsequently withheld deliberately by the petitioner despite repeated demands by Beck, unless the latter pay an additional amount of P7,000.00. The complaint was corroborated by the affidavit of Purisima Terencio. Petitioner denied the allegations. He alleged that Beck and his wife, Monica Beck, came in his office to follow-up his visa application. On the said occasion, when the petitioner advised the couple to accomplish first all the requirements for a visa application, Beck and his wife shouted invectives at him and charged the petitioner with having demanded money from them. This incident prompted the petitioner to file a criminal complaint for oral defamation. March 15, 2002

After investigation, BID Resident Ombudsman Ronaldo Ledesma found the petitioner liable for violating civil service rules and regulations as well as penal laws and thus, recommended that criminal and administrative charges be filed against the petitioner. Upon review of the case, the criminal charge was dismissed by the Ombudsman for lack of evidence; however, the Ombudsman found the petitioner liable for grave misconduct in the administrative aspect of the case and imposed the penalty of dismissal from the government service. Hence, this petition for review. OMB asserts that the sworn statements of Walter Beck a and his witness, Purisima Terencio, substantially established the administrative liability of the petitioner for grave misconduct by demanding from complainant Beck a sum of money in exchange for the issuance of the latter's ACR; and for that offense, petitioner should be imposed the corresponding penalty of dismissal from the government service. Petitioner reiterated that the Office of the Ombudsman found no evidence against him in its investigation of the criminal aspect of the case and thus, he argued that the instant administrative charge should also have been dismissed. ISSUE: WON the Office of Ombudsman gravely erred in finding that petitioner is guilty of grave misconduct despite lack of substantial evidence to support it. HELD: YES In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in the complaint. Substantial evidence does not necessarily import preponderance of evidence as is required in an ordinary civil case; rather, it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The instant administrative complaint was resolved by the Ombudsman merely on the basis of the evidence extant in the record of OMB-ADM-0-94-0983. The preliminary conference required under RA 6770 was dispensed with after Resident Ombudsman Ronaldo P. Ledesma manifested that he was submitting the case for resolution on the basis of the documents on record while the petitioner agreed to simply file his memorandum. Consequently, the only basis for the questioned resolution of the Ombudsman dismissing the petitioner from the government service was the unverified complaint-affidavit of Beck and that of his witness Terencio. The affidavits of Beck and Terencio were not identified by the respective affiants during the fact-finding investigation conducted by the BID Resident Ombudsman. Neither did they appear during the preliminary investigation to identify their respective sworn statements despite prior notice before the investigating officer who subsequently dismissed the criminal aspect of the case upon finding that the charge against the petitioner "was not supported by any evidence". Hence, Beck's affidavit is hearsay and inadmissible in evidence. On this basis alone, the Administrative Adjudication Bureau of the Office of the Ombudsman should have dismissed the administrative complaint against the petitioner in the first instance. Nonetheless, a perusal of the affidavit executed by Walter Beck does not categorically state that it was petitioner Tapiador who personally demanded from Beck P10,000.00 in consideration for the issuance of the latter's ACR. On the other hand, it appears that Beck and his wife sought the assistance of Terencio in facilitating the issuance of his ACR and in the process, Terencio allegedly informed the couple that Beck could be granted the same and would be allowed to stay in the Philippines permanently with the help of the petitioner and a certain Mr. Angeles who was also with the BID, for a fee of P10,000.00. Hence, Beck and his wife did not appear to have any direct or personal knowledge of the alleged demand of the

petitioner except through the information allegedly relayed to them by Terencio. Likewise, although Beck claimed to have subsequently paid, his affidavit is silent as to the identity of the person who actually received the said amount from him. Consequently, there is logical basis to assume that it was to Terencio that the alleged payment was made by the Beck couple. The Ombudsman should have been more prudent in according credence to the allegations of Terencio coming as they do from a supposed "fixer". The complainant failed to present the quantum of proof necessary to prove the charge in the administrative case, that is, with substantial evidence. Besides, assuming that petitioner was administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only "recommend" the removal of the public official or employee found to be at fault, to the public official concerned. -Merryl 7. LEDESMA V. COURT OF APPEALS 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. 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. Specifically, petitioner 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. Graft Investigation Officer Marlyn M. Reyes resolved the administrative cases filed against petitioner and recommended for suspension from the service for 1 year in which ombudsman Desierto approved, however the criminal charges against petioner was dismissed due to insufucuency of evidence. Petitioner filed a motion for reconsideration[10] 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. In an Order[11] 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 petitioners suspension but reduced the period from nine (9) months to six (6) months and one (1) day without pay.[12]

(1) With the denial of his motion for reconsideration, petitioner filed the instant petition for review one of the grounds is that CA failed to consider that the ombudsmans resolution finding petioner administratively liable constitutes an indirect encroachment into the power of bureau of immigration over immigration matters. Issue: WON petitioner is administratively liable? Held: Yes 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. Equally untenable is the contention that the BOCs approval of the defective applications for TRV extension cured any infirmities therein and effectively absolved petitioners 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. Petitioner submits that the Ombudsmans 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:

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.

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 agencys functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or (6) Are otherwise irregular, immoral or devoid of justification. 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. 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 peoples 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 petitioners period of suspension to six (6) months and one (1) day without pay, taking into account the education and length of service of petitioner. -Seijo

8. ESTAJIRA V. RANADA DOCTRINE: Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary.34 To conclude, we hold that Sections 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we

hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. FACTS: On August 10, 1998, respondent Edward F. Ranada, a member of the Davao Pilots Association, Inc. (DPAI) and Davao Tugboat and Allied Services, Inc., (DTASI) filed an administrative complaint for Gross Misconduct before the Office of the Ombudsman-Mindanao, against petitioner Captain Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority (PPA), Port of Davao, Sasa, Davao City. The complaint alleged that Estarija, who as Harbor Master issues the necessary berthing permit for all ships that dock in the Davao Port, had been demanding monies ranging from P200 to P2000 for the approval and issuance of berthing permits, and P5000 as monthly contribution from the DPAI. The complaint alleged that prior to August 6, 1998, in order to stop the mulcting and extortion activities of Estarija, the association reported Estarijas activities to the National Bureau of Investigation (NBI). On August 6, 1998, the NBI caught Estarija in possession of the P5,000 marked money used by the NBI to entrap Estarija. Consequently, the Ombudsman ordered petitioners preventive suspension and directed him to answer the complaint. The Ombudsman filed a criminal case docketed as Criminal Case No. 41,464-98, against Estarija for violation of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act, before the Regional Trial Court of Davao City,. In his counter-affidavit and supplemental counter-affidavit, petitioner vehemently denied demanding sums of money for the approval of berthing permits. He claimed that Adrian Cagata, an employee of the DPAI, called to inform him that the DPAI had payables to the PPA, and although he went to the associations office, he was hesitant to get the P5,000 from Cagata because the association had no pending transaction with the PPA. Estarija claimed that Cagata made him believe that the money was a partial remittance to the PPA of the pilotage fee for July 1998 representing 10% of the monthly gross revenue of their association. Nonetheless, he received the money but assured Cagata that he would send an official receipt the following day. He claimed that the entrapment and the subsequent filing of the complaint were part of a conspiracy to exact personal vengeance against him on account of Ranadas business losses occasioned by the cancellation of the latters sub-agency agreement with Asia Pacific Chartering Phil., Inc., which was eventually awarded to a shipping agency managed by Estarijas son. On August 31, 2000, the Ombudsman rendered a decision in the administrative case, finding Estarija guilty of dishonesty and grave misconduct. The dispositive portion reads: WHEREFORE, premises considered, there being substantial evidence, respondent EDGARDO V. ESTARIJA is hereby found guilty of Dishonesty and Grave Misconduct and is hereby DISMISSED from the service with forfeiture of all leave credits and retirement benefits, pursuant to Section 23(a) and (c) of Rule XIV, Book V, in relation to Section 9 of Rule XIV both of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292). He is disqualified from re-employment in the national and local governments, as well as in any government instrumentality or agency, including government owned or controlled corporations. This decision is immediately executory after it attains finality. Let a copy of this decision be entered in the personal records of respondent EDGARDO V. ESTARIJA. Estarija seasonably filed a motion for reconsideration. Estarija claimed that dismissal was unconstitutional since the Ombudsman did not have direct and immediate power to remove government officials, whether elective or appointive, who are not removable by impeachment. He maintains that under the 1987 Constitution, the Ombudsmans administrative authority is merely recommendatory, and that Republic Act No. 6770, otherwise known as "The Ombudsman Act of 1989", is unconstitutional because it gives the Office of the Ombudsman additional powers that are not provided for in the Constitution. The Ombudsman denied the motion for reconsideration in an Order dated October 31, 2000. Thus, Estarija filed a Petition for Review with urgent prayer for the issuance of a temporary restraining order and writ of preliminary prohibitory injunction before the Court of Appeals. The Court of Appeals, on February 12, 2003, dismissed the petition and affirmed the Ombudsmans decision.

The Court of Appeals held that the attack on the constitutionality of Rep. Act No. 6770 was procedurally and substantially flawed. First, the constitutionality issue was belatedly raised in the motion for reconsideration of the decision of the Ombudsman. Second, the petitioner was unable to prove the constitutional breach and failed to overcome the presumption of constitutionality in favor of the questioned statute. The Court of Appeals affirmed the decision of the Ombudsman, holding that receiving extortion money constituted dishonesty and grave misconduct. According to the Court of Appeals, petitioner failed to refute the convincing evidence offered by the complainant. Petitioner presented affidavits executed by the high-ranking officials of various shipping agencies which were found by the Court of Appeals to be couched in general and loose terms, and according to the appellate court, could not be given more evidentiary weight than the sworn testimonies of complainant and other witnesses that were subjected to cross-examination. ISSUE: Whether or not Republic Act No. 6770, otherwise known as the "Ombudsmans Act of 1989", is unconstitutional, or that the Honorable OMBUDSMAN does not have any constitutional direct and immediate power, authority or jurisdiction to remove, suspend, demote, fine or censure, herein Petitioner and all other government officials, elective or appointive, not removable by impeachment, consistent with Sec. 13, par. No. (3), Art XI, of the 1987 Philippine Constitution. HELD: In assailing the constitutionality of Rep. Act No. 6770, petitioner contends that the Ombudsman has only the powers enumerated under Section 13, Article XI of the Constitution; and that such powers do not include the power to directly remove, suspend, demote, fine, or censure a government official. Its power is merely to recommend the action to the officer concerned. Moreover, petitioner, citing Tapiador v. Office of the Ombudsman, insists that although the Constitution provides that the Ombudsman can promulgate its own rules of procedure and exercise other powers or perform such functions or duties as may be provided by law, Sections 15, 21, 22 and 25 of Rep. Act No. 6770 are inconsistent with Section 13, Article XI of the Constitution because the power of the Ombudsman is merely to recommend appropriate actions to the officer concerned. For the State, the Solicitor General maintains that the framers of the 1987 Constitution did not intend to spell out, restrictively, each act which the Ombudsman may or may not do, since the purpose of the Constitution is to provide simply a framework within which to build the institution. In addition, the Solicitor General avers that what petitioner invoked was merely an obiter dictum in the case of Tapiador v. Office of the Ombudsman. We find petitioners contentions without merit. Among the powers of the Ombudsman enumerated in Section 13, Article XI of the Constitution are: 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. 2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. 3. Direct the Officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions

entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Rep. Act No. 6770 provides for the functional and structural organization of the Office of the Ombudsman. In passing Rep. Act No. 6770, Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by public officers and employees to make him a more active and effective agent of the people in ensuring accountability in public office.29 Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement his own actions.30 Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and functions. Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during the interpellation by Commissioner Rodrigo in the Constitutional Commission of 1986 on the debates relative to the power of the Ombudsman: XXXXX Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary.34 To conclude, we hold that Sections 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. WHEREFORE, the petition is DENIED. The assailed Decision dated February 12, 2003 of the Court of Appeals in CA-G.R. SP No. 62557 and Resolution dated July 28, 2003 are hereby AFFIRMED

against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether an administrative aspect is involved therein. FACTS:

1.

(May 23, 1997) respondent Florentino M. Alumbres, Presiding Judge of Branch 255 of the RTC of Las Pinas City, filed before the Office of the Ombudsman, a Criminal Complaint for physical injuries, malicious mischief for the destruction of complainants eyeglasses, and assault upon a person in authority. RESPON alleged: that at the hallway on the third floor of the Hall of Justice, Las Pinas City, he requested petitioner to return the executive table he borrowed; that petitioner did not answer so respondent reiterated his request but before he could finish talking, petitioner blurted Tarantado ito ah, and boxed him at his right eyebrow and left lower jaw so that the right lens of his eyeglasses was thrown away, rendering his eyeglasses unserviceable; that respondent had the incident blottered with the Las Pias Police Station. He prayed that criminal charges be filed before the Sandiganbayan against the petitioner. (June 13, 1997) RESPON Judge lodged another Complaint against petitioner, this time and administrative case with the SC (Adm. Case No. 97-387-RTJ) praying for the dismissal of petitioner from the judiciary on the ground of grave misconduct or conduct unbecoming a judicial officer. Said complaint is based on the same facts as those in the complaint filed earlier with the office of the Ombudsman. Office of the Ombudsman: required petitioner to file a counter-affidavit within ten (10) days from receipt thereof. PETITIONER: filed instead Ex-Parte Motion for Referral to the Honorable SC, praying that the Office of the Ombudsman hold its investigation in abeyance, and refer the same to the SC. PET CONTEN: that the SC, not the Office of the Ombudsman, has the authority to make a preliminary determination of the respective culpability of petitioner and respondent Judge who, both being members of the bench, are under its exclusive supervision and control. Office of the Ombudsman: issued an Order denying the motion for referral to the SC. Invoking Section 15 (1) of Republic Act No. 6770, the Office of the Ombudsman held that it is within its jurisdiction to investigate the criminal charges of respondent Judge against petitioner. PET: moved for reconsideration of the foregoing order, maintaining that the Office of the Ombudsman should either refer Case No. OMB-0-97-0903 to the Supreme Court for preliminary evaluation, or await the latters resolution of Adm. Case No. 97-387-RTJ which involves the same parties and subject matter. PET CONTEN: absurd situation may result wherein the Office of the Ombudsman files criminal charges against petitioner who, on the other hand, is declared without fault by the Supreme Court. Office of the Ombudsman: denied the MR Hence, this petition for certiorari.

2.

3. 4. 5. 6.

-John Ryan 9. OFFICE OF THE OMBUDSMAN V. VALERA -Jason T. 10. CAOIBES JR. V. OMBUDSMAN G.R. No. 132177. July 19, 2001 BUENA, J.: DOCTRINE: The Ombudsmans power under Section 15 (1) of R.A. 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. The Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases

7.
8.

ISSUE: Whether or not the Office of the Ombudsman should defer action on case No. OMB-0-97-0903 pending resolution of Adm. Case No. 97-387-RTJ.

HELD: The issue is not novel. In Maceda vs. Vasquez, this Court resolved in the affirmative the issue of whether or not the Ombudsman must defer action on a criminal complaint against a judge, or a court employee where the same arises from their administrative duties, and refer the same to this Court for determination whether said judge or court employee had acted within the scope of their administrative duties. Invoking Section 15 of R.A. 6770, the Office of the Ombudsman refuses to refrain from taking cognizance of Case NO. OMB-0-97-0903 in favor of this Court on the ground that, allegedly, the accusations therein against petitioner constitute simple criminal charges falling within the parameters of its constitutional power and duty to investigate and prosecute any act or omission of any public officer or employee which appears to be illegal, unjust, improper or inefficient. Section 15 (1) of R.A. 6770 grants, among others, the following powers and duties to the Office of the Ombudsman: (1) Investigate and prosecute on its own, or on complaint by any person, any act or omission of any public officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may takeover, at any stage, from any investigatory agency of Government, the investigation of such cases; (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties; (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance therewith, or enforce its disciplinary authority as provided in Section 21 of this Act... The foregoing provisions supply the legal basis for the Ombudsman in maintaining its jurisdiction over the charges of physical injuries, malicious mischief and assault upon a person in authority filed by respondent Judge against petitioner. This conclusion seems to be reinforced by Section 16 of R.A. 6770 which states that the powers of the Office of the Ombudsman apply to all kinds of malfeasance, misfeasance and nonfeasance committed by public officers and employees during their tenure or office. The Office of the Solicitor General in its Manifestations, in Lieu of Comment, correctly opined and we quote: xxx the grant of the aforequoted powers to the Office of the Ombudsman is not tantamount to giving it exclusive authority thereon. In fact, Section 15 (1) of R.A. 6770, which is relied upon by the Office of the Ombudsman in its assailed order, provides that it has primary, not exclusive, jurisdiction over graft and corruption cases and felonies committed by public officers in relation to their office. Moreover, it was held in Sanchez vs. Demetriou, 227 SCRA 627 [1993], that the Ombudsmans power under Section 15 (1) of R.A. 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. It appears that the present case involves two members of the judiciary who were entangled in a fight within court premises over a piece of office furniture. Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with exclusive administrative supervision over all courts and its personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to

the Supreme Court for determination as to whether an administrative aspect is involved therein. This rule should hold true regardless of whether an administrative case based on the act subject of the complaint before the Ombudsman is already pending with the Court. For, aside from the fact that the Ombudsman would not know of this matter unless he is informed of it, he should give due respect for and recognition of the administrative authority of the Court, because in determining whether an administrative matter is involved, the Court passes upon not only administrative liabilities but also other administrative concerns, as is clearly conveyed in the case of Maceda vs. Vasquez. The Ombudsman cannot dictate to, and bind the Court, to its findings that a case before it does or does not have administrative implications. To do so is to deprive the Court of the exercise of its administrative prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is a dangerous policy which impinges, as it does, on judicial independence. Maceda is emphatic that by virtue of its constitutional power of administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk, it is only the Supreme Court that can oversee the judges and court personnels compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. WHEREFORE, the petition for certiorari is hereby GRANTED. The Ombudsman is hereby directed to dismiss the complaint filed by respondent Judge Florentino M. Alumbres and to refer the same to this Court for appropriate action. -Jean 11. FABIAN V. DESIERTO FACTS:

1.

It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G. Fabian was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which was engaged in the construction business. Private respondent Nestor V. Agustin was the incumbent District Engineer of the First Metro Manila Engineering District (FMED) when he allegedly committed the offenses for which he was administratively charged in the Office of the Ombudsman. PROMAT participated in the bidding for government construction projects including those under the FMED, and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an amorous relationship. Their affair lasted for some time, in the course of which private respondent gifted PROMAT with public works contracts and interceded for it in problems concerning the same in his office. Later, misunderstandings and unpleasant incidents developed between the parties and when petitioner tried to terminate their relationship, private respondent refused and resisted her attempts to do so to the extent of employing acts of harassment, intimidation and threats. She eventually filed the aforementioned administrative case against him in a letter-complaint dated July 24, 1995. The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral conduct.

2.

3.

4.

5.

6.

On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private respondent guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant Ombudsman Abelardo Aportadera of their office. Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution with modifications, by finding private respondent guilty of misconduct and meting out the penalty of suspension without pay for one year.

7.

Furthermore, in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of what would later be Republic Act No. 6770, was approved on second reading by the House of Representatives. 25 The Senate was informed of the approval of the final version of the Act on October 2, 1989 26 and the same was thereafter enacted into law by President Aquino on November 17, 1989. Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of the Constitution. It also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the matter. There is no showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and consent. 28 As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasijudicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43. There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which, being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it results in a diminution, increase or modification of substantive rights. Obviously, however, where the law is procedural in essence and purpose, the foregoing consideration would not pose a proscriptive issue against the exercise of the rule-making power of this Court. This brings to fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural. It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. 29 It is admitted that what is procedural and what is substantive is frequently a question of great difficulty. 30 It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system. In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. 31 If the rule takes away a vested right, it is no; procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 32 In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only. 33 This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. 34 Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to

8.

RECONSIDERATION: After private respondent moved for reconsideration, respondent Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence he inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who, in the now challenged Joint Order of June 18, 1997, set aside the Order of respondent Ombudsman and exonerated private respondent from the administrative charges. In the present appeal, petitioner argues that: ...that under Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), when a respondent is absolved of the charges in an administrative proceeding the decision of the Ombudsman is final and unappealable. She accordingly submits that the Office of the Ombudsman has no authority under the law to restrict, in the manner provided in its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of review of this Court. Because of the aforecited provision in those Rules of Procedure, she claims that she found it "necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the availability of appeal under Rule 45 of the Rules of Court.

9.

10. Respondents: Office of the Ombudsman is empowered by the Constitution and the law to
promulgate its own rules of procedure. ISSUE: WON ombudsman has authority under the law to restrict the right to appeal. RULING: Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the appellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. 23 was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court. We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics and some statements in Yabut and Alba, not only because of the difference in the factual settings, but also because those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this case. By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction.

subordinate appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy. 35 Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect 36 or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the Court of Appeals can be sustained. WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect. The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said petition to be considered by the Court of Appeals pro hoc vice as a petition for review under Rule 43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents or records as it may deem necessary and proper. SO ORDERED.

Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After his investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation. In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom the case was raffled for investigation, recommended the preventive suspension of petitioner and the others. Two days later, or on June 24, 1999, the affidavit-complaint against petitioner was filed. The following day, on June 25, 1999, the Office of the Ombudsman issued the questioned preventive suspension order. On June 29, 1999, petitioner filed a motion for reconsideration of said order, which motion was denied in an order dated July 5, 1999. Petitioner is now before this Court assailing the validity of the said order. He pleads for immediate relief through the present petition for certiorari and prohibition with a prayer for temporary restraining order and/or writ of preliminary injunction. Petitioner contends that: I THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION, IN ASSUMING JURISDICTION OVER OMB-VIS-ADM-99-0452 AND ISSUING THE PREVENTIVE SUSPENSION ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT JURISDICTION OVER THE ADMINISTRATIVE CASE, CONSIDERING THAT THE ALLEGED ACT CONSTITUTING THE CHARGE AGAINST PETITIONER HEREIN WAS COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER HAVING BEEN REELECTED TO THE SAME POSITION. II ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE PREVENTIVE SUSPENSION FOR SIX MONTHS WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF THE PROVISIONS OF SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH MANDATES THAT THE PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY (60) DAYS. On July 19, 1999, we directed the parties to maintain the status quo until further orders from this Court. It appears that on the same day, petitioner issued a memorandum informing employees and officials of the Office of the City Mayor that he was assuming the post of mayor effective immediately. On July 23, 1999, respondents filed a motion seeking clarification of our status quo order. Respondents claimed that the status quo referred to in the order should be that where petitioner is already and vice mayor Renato Osmea is the acting city mayor. Petitioner, in reply, argued that the status quo refers to "the last actual peaceable uncontested status which preceded the pending controversy." 2 Thus, status quo could not be that where petitioner is preventively suspended since the suspension did not precede the present controversy; it is the controversy. We agree with petitioner in this regard. ISSUES: 1. What is the effect of the reelection of petitioner on the investigation of acts done before his reelection? Did the Ombudsman for Visayas gravely abuse his discretion in conducting the investigation of petitioner and ordering his preventive suspension? 2. Assuming that the Ombudsman properly took cognizance of the case, what law should apply to the investigation being conducted by him, the Local Government Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)? Was the procedure in the law properly observed?

-Jaja 12. GARCIA V. MOJICA G.R. No. 139043 September 10, 1999 MAYOR ALVIN B. GARCIA, vs. HON. ARTURO C. MOJICA, in his capacity as Deputy Ombudsman for the Visayas, VIRGINIA PALANCA-SANTIAGO, in his capacity as Director, Office of the Ombudsman (Visayas), ALAN FRANCISCO S. GARCIANO, in his capacity as Graft Investigation Officer I, Office of the Ombudsman (Visayas), and JESUS RODRIGO T. TAGAAN FACTS: The present controversy involves the preventive suspension order issued June 25, 1999, by the Office of the Ombudsman (Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu City Mayor Alvin B. Garcia and eight other city officials. Under the said order, petitioner was placed under preventive suspension without pay for the maximum period of six months and told to cease and desist from holding office immediately. The factual antecedents are as follows: On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which period was to commence on September 1998 when the first delivery should have been made by F.E. Zuellig. Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter. 1

3. Assuming further that the Ombudsman has jurisdiction, is the preventive suspension of petitioner based on "strong evidence" as required by law? We will now address these issues together, for the proper resolution on the merits of the present controversy. Petitioner contends that, per our ruling in Aguinaldo v. Santos, 4 his reelection has rendered the administrative case filed against him moot and academic. This is because reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term. Petitioner further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija, 5 that . . . When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Respondents, on the other hand, contend that while the contract in question was signed during the previous term of petitioner, it was to commence or be effective only on September 1998 or during his current term. It is the respondents' submission that petitioner "went beyond the protective confines" 6 of jurisprudence when he "agreed to extend his act to his current term of office." 7 Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term. Respondents maintain that, . . . petitioner performed two acts with respect to the contract: he provided for a suspensive period making the supply contract commence or be effective during his succeeding or current term and during his current term of office he acceded to the suspensive period making the contract effective during his current term by causing the implementation of the contract. 8 Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents. Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full knowledge of petitioner's character. On this point, petitioner responds that knowledge of an official's previous acts is presumed and the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds. Petitioner cites our ruling in Salalima v. Guingona, 9 wherein we absolved Albay governor Romeo R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine in Aguinaldo applies even where the effects of the act complained of are still evident during the subsequent term of the reelected official. The implementation of the contract is a mere incident of its execution. Besides, according to petitioner, the "sole act" for which he has been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contract's execution or implementation, or any act subsequent to the perfection of the contract.

In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection. Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. Under Article XI, Section 13[1], the Ombudsman has the power to: investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act omission appears to be illegal, unjust, improper, or inefficient. R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory power to conduct administrative investigations. Thus, Section 19 of said law 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. Sec. 21 of R.A. 6770 names the officials subject to the Ombudsman's disciplinary authority: Sec. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied.) Petitioner is an elective local official accused of grave misconduct and dishonesty. 10 That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770. However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission, is different from the question of whether or not petitioner, after investigation, may be held administratively liable. This distinction ought here to be kept in mind, even as we must also take note that the power to investigation is distinct from the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law. Under Section 24 of R.A. 6770 Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Emphasis supplied.) We have previously interpreted the phrase "under his authority" to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are employed, 11 excepting of course those removable by impeachment, members of Congress and the Judiciary. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is the clear import of Section 24 or R.A. 6770 abovecited. There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or influence witnesses 12 or to tamper with records that might be vital to the prosecution of the case against him. 13 In our view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months? Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other factors, the evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed six months. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law. Sec. 24. Preventive Suspension. xxx xxx xxx The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Emphasis supplied.) The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman. 14 The discretion as regards the period of such suspension also necessarily

belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that provided by law. 15 But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. These equitable remedies under Rule 65 of the Rules of Court precisely exist to provide prompt relief where an "officer exercising judicial or quasi-judicial functions has acted . . . with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." (See Rule 65, Sec. 1). It is pertinent to note here that the inquiry that preceded the filing of an administrative case against petitioner was prompted by newspaper reports regarding the allegedly anomalous contract entered into by petitioner, on behalf of Cebu City, with F.E. Zuellig. 16 In the memorandum to respondent Mojica, 17 respondent Garciano recommended that petitioner be preventively suspended, based on an initial investigation purportedly showing: (1) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks attendant to a fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by adequate security. These findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais. There were also letters from Shell and Petron that were replies to the Office of the Ombudsman's (Visayas) inquiry on whether or not they could supply Cebu City with asphalt and on what terms. Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension.

Respondents base their argument on the deliberations of the Senate on Senate Bill No. 155, which became the Local Government Code. Senator Aquilino Pimentel, Jr., commenting on the preservation in the proposed Code of the power of the Office of the President to suspend local officials, said: Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President. 18 Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. In Hagad v. Gozo-Dagole, 19 on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said: Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. 20 It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern differently. 21 However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges against the official are heard, or before the official is given an opportunity to prove his innocence. 22 Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the official concerned. Petitioner also avers that the suspension order against him was issued in violation of Section 26(2) of the Ombudsman Law, which provides: Sec. 26. Inquiries. . . . (2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt thereof. . .

Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer. Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard. Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5(a) of the Rules of Procedure of the Office of the Ombudsman, 23 which provides: Sec. 5. Administrative adjudication. How conducted. (a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt from, together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter-affidavits of the respondent. We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively suspend him for a reasonable period, can that office hold him administratively liable for said acts? In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. 24 The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. For his part, petitioner that "the only conclusive determining factor" 25 as regards the people's thinking on the matter is an election. On this point, we agree with petitioner. That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such an undertaking will obviously be impossible. Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the official's reelection, except that it must be prior to said date. As held in Salalima. The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an official's reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline

which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the detriment of public service. . . . Emphasis added. 26 The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig. The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioner's second term. However, respondents argue that the contract, although signed on May 7, 1998, during petitioner's prior term, is to be made effective only during his present term. We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the contract was signed, during petitioner's prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extent on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F.E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling, in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to the question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not. WHEREFORE, the petition is hereby DENIED insofar as it seeks to declare at respondents committed grave abuse of discretion in conducting an inquiry on complaints against petitioner, and ordering their investigation pursuant to respondents' mandate under the Constitution and the Ombudsman Law. But the petition is hereby GRANTED insofar as it seeks to declare that respondents committed grave abuse of discretion concerning the period of preventive suspension imposed on petitioner, which is the maximum of six months, it appearing that 24 days the number of days from the date petitioner was suspended on June 25, 1999, to the date of our status quo order on July 19, 1999 were sufficient for the purpose. Accordingly, petitioner's preventive suspension, embodied in the order of respondent Deputy Ombudsman, dated June 25, 1999, should now be, as it is hereby, LIFTED immediately. SO ORDERED. 13. MEDINA V. COA

and Pallerna, Tepora and a certain Alvarez, who were all state auditors of the Provincial Auditor's Office of Cavite, they all stated that they had examined petitioner's financial records covering 19 August 1999 to 26 September 2000 and discovered a total cash shortage in the aggregate amount of P4,080,631.36. They thus directed petitioner to immediately restitute the shortage within 72 hours from receipt of the demand letter but petitioner allegedly failed to comply. The state auditors submitted a report to the Provincial Auditor's Office and recommended the relief of petitioner from her post as municipal treasurer and the filing of criminal charges against her. COA, represented by the aforementioned state auditors, filed an administrative case before the Office of the Deputy Ombudsman for Luzon, charging petitioner with grave misconduct and dishonesty. Petitioner then filed a Counter-Affidavit raising her defenses, such that the audit team was not independent and competent and that the documents were not verified, among others. In its decision, Deputy Ombudsman Victor C. Fernandez approved the recommendation of the Graft Investigation and Prosecution Officer to dismiss petitioner from service based on the existence of substantial evidence of a discrepancy in petitioner's account totaling P4,080,631.36. The said decision noted petitioner's supposed failure to file a counter-affidavit and position paper despite due notice. On 29 November 2004, petitioner filed an urgent motion stating that she complied with the directive to file a counter-affidavit and position paper and praying that the defenses therein be considered in reversing the 8 November 2004 decision. The motion was treated as a motion for reconsideration of the said decision. Consequently, Deputy Ombudsman Fernandez issued denied petitioner's urgent motion. Although the order acknowledged the erroneous statement in the 8 November 2004 Decision stating that petitioner failed to submit a counter-affidavit, nevertheless, it affirmed the Resolution and Decision both dated 8 November 2004. Deputy Ombudsman Fernandez ruled that petitioner's Counter-Affidavit and Position Paper did not present exculpatory arguments that would negate the allegation of discrepancy on petitioner's accounts. He also held that petitioner's concerns relating to the conduct of the audit should have been raised at the time of the audit or immediately thereafter, and that petitioner's failure to produce the amount of cash shortage despite demand created a presumption that she appropriated public funds under her custody for her own personal use. Petitioner sought reconsideration on grounds of newly discovered and material evidence and grave errors of fact and/or law prejudicial to her own interest. The purported newly discovered evidence consisted of petitioner's request for reconsideration of the audit report filed and still pending before the office of the audit team head, herein respondent Mawak, and letters sent by petitioner's counsel to the provincial auditor of Cavite questioning the audit and requesting a re-audit of petitioner's accounts. Petitioner also requested for a formal investigation. However, The deputy ombudsman held that petitioner's belated request for re-audit could not be considered newly discovered evidence and denied the request for a formal investigation on the ground that petitioner was afforded due process when she filed her counter-affidavit and position paper. Petitioner elevated the matter to the Court of Appeals via a Petition for Review questioning the denial of her request for a formal investigation, the penalty of dismissal, and the sufficiency of the evidence against her. Meanwhile, the CA dismissed the petition and affirmed the deputy ombudsmans finding of grave misconduct and dishonesty against her. Issues:

Facts: (1) The petition originated from the audit conducted by respondent Commission on Audit (COA) on the cash and accounts handled by petitioner in her official capacity as Municipal Treasurer of General Mariano Alvarez, Cavite. In the Joint Affidavit executed by respondents Mawak, head of the audit team, (2) Whether or not petitioner was deprived of her right to due process, considering that her request for formal reinvestigation was denied despite the newly discovered evidence attached to her motion Whether the penalty of dismissal is proper

Held: (1) No.

To end, it must be stressed that dishonesty and grave misconduct have always been and should remain anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the public's faith and confidence in the -Jeniby

Invoking her right to due process, petitioner insists that she is entitled to a formal investigation, citing the Administrative Code of 1987, Book V, Title I, Subtitle A, Section 48 (2) and (3).On the other hand, in support of its argument that the propriety of conducting a formal investigation rests on the sound discretion of the hearing officer, respondent COA, through the Office of the Solicitor General (OSG), relies on Administrative Order No. 07, as amended by Administrative Order No. 17, Rule III, Section 5, governing the procedure in administrative cases filed before the Office of the Ombudsman. The provisions in the Administrative Code cited by petitioner in support of her theory that she is entitled to a formal investigation apply only to administrative cases filed before the Civil Service Commission (CSC). In particular, Section 48(2) and Section 48(3) are subsumed under Subtitle A of Title I, which pertains to the CSC and to the procedure of administrative cases filed before the CSC. The administrative complaint against petitioner was filed before the Office of the Ombudsman, suggesting that a different set of procedural rules govern. And rightly so, the Deputy Ombudsman applied the provisions of Rules of Procedure of the Office of the Ombudsman in ruling that the prerogative to elect a formal investigation pertains to the hearing officer and not to petitioner. As correctly pointed out by the OSG, the denial of petitioner's request for a formal investigation is not tantamount to a denial of her right to due process. Petitioner was required to file a counter-affidavit and position paper and later on, was given a chance to file two motions for reconsideration of the decision of the deputy ombudsman. The essence of due process in administrative proceedings is the opportunity to explain one's side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. (2) Yes. On the penalty of dismissal which petitioner claims is too harsh, petitioner argues that the mitigating circumstances of this being her first offense and of the unreasonable length of time in filing the administrative case should be considered in her favor. Jurisprudence is replete with cases declaring that a grave offense cannot be mitigated by the fact that the accused is a first time offender or by the length of service of the accused. In Civil Service Commission v. Cortez, the Court held as follows: The gravity of the offense committed is also the reason why we cannot consider the "first offense" circumstance invoked by respondent. In several cases, we imposed the heavier penalty of dismissal or a fine of more than P20,000.00, considering the gravity of the offense committed, even if the offense charged was respondent's first offense. Thus, in the present case, even though the offense respondent was found guilty of was her first offense, the gravity thereof outweighs the fact that it was her first offense. Also, in Concerned Employees v. Nuestro, a court employee charged with and found guilty of dishonesty for falsification was meted the penalty of dismissal notwithstanding the length of her service in view of the gravity of the offense charged.

*kulang po talaga siya. =) 14. KHAN JR. V. OFFICE OF THE OMBUDSMAN G.R. No. 125296 July 20, 2006

ISMAEL G. KHAN, JR. and WENCESLAO L. MALABANAN vs. OFFICE OF THE OMBUDSMAN, DEPUTY OMBUDSMAN (VISAYAS), ROSAURO F. TORRALBA* and CELESTINO BANDALA**, respondents. FACTS: This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of whether public respondents Deputy Ombudsman (Visayas) and the Ombudsman have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA) 30191 (the Anti-Graft and Corrupt Practices Act). In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders. Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019. In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners' omnibus motion to dismiss. On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the Government Service Insurance System (GSIS).4 Therefore, it became a government-owned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan.5 On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government." The dispositive portion of the Deputy Ombudsman's order read:

WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO DISMISS, the same is hereby DENIED and petitioners are hereby ordered to submit their answer within ten (10) days from receipt hereof.6 xxx xxx xxx

Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners. Quimpo Not Applicable to the Case at Bar Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan had jurisdiction over them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC) acquired its shares. In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here. In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on oil."11 The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that the government acquired the controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS. No governmental functions at all were involved. Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article XIII, Section 6: SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as the Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. (italics supplied) The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer only to those with original charters.12 Petitioners, as then Officers of PAL, were not Public Officers Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied definitions and concepts are found in different statutes 13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the term "public officers": A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

Petitioners appealed the order to the Ombudsman. There, they raised the same issues. Treating the appeal as a motion for reconsideration, the Ombudsman dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC, hence, he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's ruling that Quimpo was applicable to petitioners' case. ISSUE: In this petition for certiorari, with prayer for issuance of a temporary restraining order, petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against them although they were officers of a private corporation and not "public officers."8 In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; (2) Quimpo does not apply to the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law. HELD: We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation of RA 3019. JURISDICTION OF THE OMBUDSMAN OVER GOCCS IS CONFINED ONLY TO THOSE WITH ORIGINAL CHARTERS The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2) provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (italics supplied) Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI,

The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. xxx xxx xxx

perform in the said Government or any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. (Article 203, Revised Penal Code).

Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 (italics supplied) From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign executive, legislative or judicial functions.17 The explication of the term is also consistent with the Court's pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to carry out governmental functions. In any event, PAL has since reverted to private ownership and we find it pointless to scrutinize the implications of a legal issue that technically no longer exists. WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE and ANNULLED. SO ORDERED.
5

15. SERANA V. SANDIGANBAYAN FACTS: Petitioner Hannah Eunice D. Serana was a senior student of the University of the Philippines-Cebu. A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending on December 31, 2000. In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman. On September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI). One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex. President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, was the Office of the President. The renovation of Vinzons Hall Annex failed to materialize. The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman. On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan. Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any jurisdiction over the offense charged or over her person, in her capacity as UP student regent. Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction. It has no jurisdiction over the crime of estafa. It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction. She also argued that it was President Estrada, not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, not from the coffers of the government. Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents who held their positions in an ex officio capacity. She addsed that she was a simple student and did not receive any salary as a student regent.She further contended that she had no power or authority to receive monies or funds. Such power was vested with the Board of Regents (BOR) as a whole. The Ombudsman opposed the motion

230 Phil. 232 (1986). In this case, the Philippine National Oil Corporation (PNOC) acquired PETROPHIL, a private corporation. Here, the Court declared that PETROPHIL shed off its private status and became a subsidiary of PNOC. Its officers, who were then accused of violating the Anti-Graft and Corrupt Practices Act (RA 3019), were considered "public officers" under the jurisdiction of the Tanodbayan (now Ombudsman).
13

Public officials include elective and appointive officials and employees, permanent or temporary, whether in the career and non-career service, including military and police personnel whether or not they receive compensation, regardless of amount. (Section 2[b], RA 6713 [Code of Conduct and Standards for Public Officials]). Public officer is any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. (Section 1[a], RA 7080 [Act Defining and Penalizing the Crime of Plunder]). Public officers include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government x x x (Section 2[b], RA 3019 [Anti-Graft and Corrupt Practices Act]). Any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall

The Sandiganbayan denied petitioners motion for lack of merit. It held that: As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office. Finally, this court finds that accused-movants contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case. ISSUE: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. RULING: Petition denied. A) JURISDICTION OF THE SANDIGANBAYAN. Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people. P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan. P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other 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 B. Other offenses of 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.

C. 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 officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional 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. Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto. Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan. In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office. B)WHETHER OR NOT PETITIONER IS A PUBLIC OFFICER Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition feepaying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People, We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law. C) THE OFFENSE WAS COMMITTED ON RELATION TO PUBLIC OFFICE In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x." Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground. D) SOURCE OF FUND. It is contended anew that the amount came from President Estradas private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on.We cannot agree. The information

alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that "petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)." -Aimee

F. PUBLIC OFFICE AND RESPONSIBILITY 1. SISTOZA V. DESIERTO -Diana 2. REYES V. RURAL BANK OF SAN MIGUEL G.R. No. 154499 February 27, 2004

Through Resolution No. 96, the MB required RBSMI to submit within 15 days a written explanation with respect to the findings of the examiner. It also directed the Department of Rural Banks (DRB), to verify, monitor and report to the Deputy Governor, Supervision and Examination Sector (SES) on the findings/exceptions noted, until the same shall have been corrected. As directed by the MB, another examination team conducted a special examination on RBSMI. RBSMI President Hilario Soriano claimed that he was pressured into issuing a memorandum to the bank employees authorizing the team to review the banks accounting and internal control system. Soriano also alleged that sometime in March 1997, Reyes started urging him to consider selling the bank. He specified that on May 28, 1997, Reyes introduced him through telephone to Mr. Exequiel Villacorta, President and Chief Executive Officer of the TA Bank. They agreed to meet on the following day. In his Affidavit,6 Villacorta confirmed that he and Soriano indeed met but the meeting never got past the exploratory stage since he (Villacorta) immediately expressed disinterest because Soriano wanted to sell all his equity shares while he was merely contemplating a possible buy-in. Soriano further alleged that when the talks with Villacorta failed, Reyes asked him whether he wanted to meet another buyer, to which he answered in the affirmative. Thereafter, Reyes introduced him by telephone to Benjamin P. Castillo of the Export and Industry Bank (EIB), whom he met on June 26, 1997. No negotiation took place because Soriano desired a total sale while EIB merely desired a joint venture arrangement or a buy-in to allow EIB to gain control of RBSMI. Meanwhile, on June 13, 1997, the MB approved Resolution No. 7247 ordering RBSMI to correct the major exceptions noted within 30 days from receipt of the advice, and to remit to the BSP the amount of P2,538,483.00 as fines and penalties for incurring deficiencies in reserves against deposit liabilities. On July 21, 1997, Soriano submitted RBSMIs answers to the BSP exceptions/findings mentioned. He stated that "the actions taken or to be taken by the bank (RBSMI) were deliberated and ratified by the Board of Directors in its regular meeting held on July 9, 1997." Among the board approved actions was the banks request addressed to Domo-ong for BSP "to debit the demand deposit of the bank in the amount of P2,538,483.00" representing the payment of fines and penalties. More than a year after, however, the RBSMI asked for a reconsideration of MB Resolution No. 724 insofar as the imposition of fine amounting to P2,538,483.00. On January 21, 1999, the MB adopted Resolution No. 71,8 authorizing the conditional reversal of sixty percent (60%) of the penalty pending resolution of the dispute on the findings on reserve deficiency. Subsequently, on April 7, 1999, the MB approved the interim reversal of the entire amount of the penalty "pending the outcome of the study on the legal and factual basis for the imposition of the penalty." The above incidents, particularly the alleged "brokering" by Reyes and the petitioners "unsupported" recommendation to impose a penalty of P2,538,483.00 for legal reserve deficiency, prompted the respondent to file the letter-complaint charging the petitioners with "unprofessionalism." The Motion for Reconsideration bid of Reyes and Domo-ong is meritorious. In pinning liability on Reyes and Domo-ong for the seminar which used the rural bank as a case study, the court made this ratiocination, viz: "(W)hile there was indeed no evidence showing that either petitioner Reyes or petitioner Domo-ong distributed or used the materials, the very fact that the seminar was conducted under their auspices is enough to make them liable to a certain extent. Petitioner Reyes, as Head of the BSP Supervision and Examination Sector, and petitioner Domo-ong, as Director of the BSP Department of Rural Banks, should

ALBERTO V. REYES, WILFREDO B. DOMO-ONG and HERMINIO C. PRINCIPIO, petitioners vs. RURAL BANK OF SAN MIGUEL (BULACAN), INC., represented by HILARIO P. SORIANO, President and Principal Stockholder, respondent. RESOLUTION Tinga, J.: This deals with the Motion for Reconsideration of petitioners Alberto V. Reyes and Wilfredo B. Domoong, both Bangko Sentral ng Pilipinas (BSP) officials,1 and the Motion for Partial Reconsideration of respondent Rural Bank of San Miguel (Bulacan), Inc. In the Decision2 of March 14, 2003, this Court found Deputy Governor Reyes and Director Domo-ong liable for violation of the "standards of professionalism" prescribed by the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713) in that they used the distressed financial condition of respondent Rural Bank of San Miguel (Bulacan), Inc. (RBSMI) as the subject of a case study in one of the BSP seminars and did the "brokering" of the sale of RBSMI. The Court modified the Decision of the Court of Appeals in CA-GR SP No. 601843 by reducing the penalty imposed by the appellate court from a fine equivalent to six months salary to a fine of two months salary for Reyes and one month salary for Domo-ong. In the Decision, the Court exonerated petitioner Herminio C. Principio4 of the administrative charges. The exoneration is the subject of RBSMIs Motion For Partial Reconsideration. The Motion for Reconsideration of Reyes and Domo-ong is anchored on the following grounds: (1) it was not under their auspices that the seminar which used training materials containing two case studies on RBSMIs financial distress was conducted but under that of another department and other officials of BSP; and, (2) they did not do any act which constituted "brokering" of the sale of RBSMI or deviated from the standards of professionalism. A brief revisit of the operative milieu is warranted to gain the needed perspective. In a letter dated May 19, 1999, addressed to then BSP Governor Singson, RBSMI charged the petitioners with violation of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). The Monetary Board (MB) of the BSP created an Ad Hoc Committee to investigate the matter. The ensuing investigation disclosed that sometime in September 1996, RBSMI, which had a history of major violations/exceptions dating back to 1995, underwent periodic examination by the BSP. The examination team headed by Principio noted 20 serious exceptions/violations and deficiencies of RBSMI.5

have exercised their power of control and supervision so that the incident could have been prevented or at the very least remedied." (Emphasis supplied) Plainly, conclusion on petitioners culpability is grounded, not on an established fact but on a mere inference that the seminar was conducted under their auspices. Indeed, the pronouncement on the petitioners role is evidently conjectural and evaluation of the extent of their responsibility admittedly uncertain. It is conceded that there was no evidence that the seminar was conducted under petitioners patronage. And it was assumed, as indeed there was absolutely paucity of proof, that they exercised supervision and control over the persons responsible in organizing the seminar. On the contrary, as shown in the Motion For Reconsideration, it was the Bangko Sentral ng Pilipinas Institute (BSPI), an office separate and independent from the SES which is directly under the control and supervision of another Deputy Governor, that for the Resource Management Sector (RMS)9 which is charged with conducting seminars and lectures for the BSP, including the seminar involved in this case. In its Comment,10 RBSMI argues that since information on the state of its finances found its way as a training material of RMS, the event could have transpired only because the SES permitted it. Even if the subordinates of petitioners were the source of information, RBSMI further claims in ostensible reference to the principle of command responsibility, petitioners could be held liable for negligence. It is noteworthy again that petitioners alleged role in the disclosure of information is not anchored on any concrete piece of evidence. That explains the RBSMIs effort to cast liability vicariously on the petitioners by a superficial resort to the principle of command responsibility which this Court did not reject. But neither the principle itself which is an accepted notion in military or police structural dynamics or its counterpart of respondent superior in the law on quasi-delicts 11 would be relevant in this case, involving as it does the actual performance in office of the petitioners and given the fact that petitioners are high ranking officers of the countrys central monetary authority. Indeed, as such officers, petitioners cannot be expected to monitor the activities of their subalterns. In Arias v. Sandiganbayan,12 this Court held that all heads of offices have to rely to a reasonable extent on the good faith of their subordinates. The case specifically involved the liability of the head of office in the preparation of bids, purchase of supplies and contract negotiations done by his subordinates. In the same fashion, petitioners in this case owing to their high ranks cannot be expected to acquaint themselves with such minutiae as the flow of files and documents which leave their desks. Myriad details such as those are, by office practice, left to subalterns and minor employees. Delegation of function is part of sound management. From another perspective, the negligence of the subordinate cannot be ascribed to his superior in the absence of evidence of the latters own negligence. Indeed, the negligence of the subordinate is not tantamount to negligence of the superior official so the Court ruled in a case13 where the mandated responsibilities of the superior do not include actual monitoring of projects. In another case, 14 this Court rejected the principle of command responsibility although the case involved a provincial constabulary commander, aptly noting that there was neither allegation nor proof that he had been in any way guilty of fault or negligence in connection with the unlawful raid and arrest effected by his subordinates. The immunity of public officers from liability for the non-feasances, negligence or omissions of duty of their official subordinates and even for the latters misfeasances or positive wrongs rests, according to Mechem, "upon obvious considerations of public policy, the necessities of the public service and the perplexities and embarrassments of a contrary doctrine."15 These official subordinates, he notes further, are themselves public officers though of an inferior grade, and therefore directly liable in the cases in which any public officer is liable, for their own misdeeds or defaults.16 Significantly, Mechems disquisition provides the mooring of the Administrative Code of 1987 which provides that a head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.17

Now, the label of unprofessionalism bestowed by the Court on the petitioners at the instance of RBSMI. In the assailed Decision, the Court categorized Reyes telephone introduction of officials of other banks to RBSMIs President in connection with the latters expressed desire to sell the bank as "brokering" which in turn constitutes, according to the Court, violation of the standards of professionalism. The standards are set forth in Section 4 (A) (b) of Republic Act 6713, as follows: Sec. 4. Norms of Conduct of Public Officials and Employees. (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: ... (b) Professionalism. Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage. The Court equates "brokering" with unprofessionalism. According to Websters Third New International Dictionary, "professionalism" means "the conduct, aims, or qualities that characterize or mark a profession." Any standard thesaurus defines a "professional" as a person who engages in an activity with great competence. Indeed, to call a person a professional is to describe him as competent, efficient, experienced, proficient or polished. The crucial question, therefore, is whether Reyes conducted himself in an unprofessional manner in doing the acts imputed to him. The Court rules in the negative. In the first place, the acts of Reyes do not constitute "brokering." Case law18 defines a "broker" as "one who is engaged, for others, on a commission, negotiating contracts relative to property with the custody of which he has no concern; the negotiator between other parties, never acting in his own name but in the name of those who employed him. . . . a broker is one whose occupation is to bring the parties together, in matters of trade, commerce or navigation." According to Bouviers Law Dictionary, "brokerage" refers to "the trade or occupation of a broker; the commissions paid to a broker for his services," while "brokers" are "those who are engaged for others on the negotiation of contracts relative to property, with the custody of which they have no concern."19 Thus, the word "brokering" clearly indicates the performance of certain acts for monetary consideration or compensation. To give it another definition such as that imputed by RBSMI to the acts of Reyes is to distort the accepted jurisprudential meaning of the term. From the evidence, all that Reyes did was to introduce RBSMIs President to the President of TA Bank and EIB. Nothing more. There was not even a hint that he was motivated by monetary consideration or swayed by any personal interest in doing what he did. On his part, Soriano who is RBSMIs President himself admitted that the talks with Villacorta and Castillo never got past the exploratory stage because the two wanted a buy-in while he was for a total sell-out. This is an indelible indication that Reyes was not personally involved in the transaction. If he were, he would at least have an inkling of the plans of Villacorta and Castillo; otherwise, he would not have wasted his time introducing them to Soriano.

Indeed, RBSMI miserably failed to establish that Reyes had breached the standard of professional conduct required of a public servant. It appears to the Court that in keeping with the standards of professionalism and heeding the mandate of his position, he made the telephone introductions for no other purpose but to pave the way for a possible consolidation or merger of RBSMI with interested banks. As this Court found in its Decision, it is indeed the policy of the BSP to promote mergers and consolidations by providing incentives to banks that would undergo such corporate combinations.20 To effectively implement the policy, it was necessary that the banks be advised and assisted by a person knowledgeable about the transactions like Reyes. The benefits which may ultimately arise out of any preliminary facilitation step such as what Reyes undertook will not accrue to the facilitator but to the parties to the transaction themselves and, of course, the institution whose policy initiative is being carried out. All told, there is neither legal nor factual support for holding Reyes and Domo-ong liable. As to the motion for partial reconsideration filed by RBSMI, it is argued that Principio should be administratively penalized for his undue haste in submitting his report to the MB, in making an unsupported recommendation for imposition of penalties for legal reserve deficiencies, and for taking charge of the examinations of RBSMI three consecutive times. RBSMIs arguments are not new, they having been previously presented to and squarely ruled upon by the Court. In closing, it cannot be overemphasized that the BSP is an independent body corporate bestowed under its charter21 with fiscal and administrative autonomy. As such, its officials should be granted a certain degree of flexibility in the performance of their duties and provided insulation from interference and vexatious suits, especially when moves of the kind are resorted to as counterfoil to the exercise of their regulatory mandate. Elsewise, the institutional independence and autonomy of the BSP as the central mandatory authority would be rendered illusory. IN VIEW OF THE FOREGOING, the Court RESOLVES to GRANT the Motion for Reconsideration of the petitioners Deputy Governor Alberto V. Reyes and Director Wilfredo B. Domo-ong. The Decision dated March 14, 2003 is SET ASIDE and another entered, DISMISSING the administrative complaint and EXONERATING all the petitioners. The Motion for Partial Reconsideration of the respondent Rural Bank of San Miguel (Bulacan), Inc. is DENIED. SO ORDERED. G. ILL-GOTTEN WEALTH AND STATE RECOVERY 1. PRESIDENTIAL AD HOC FACT FINDING COMMITTEE ON BEHEST LOANS V. DESIERTO G.R. No. 130140 October 25, 1999 PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS represented by MAGTANGGOL C. GUNIGUNDO, PCGG Chairman and ORLANDO C. SALVADOR, as Consultant, Technical Working Group of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, petitioners, vs. HON. ANIANO A. DESIERTO as Ombudsman; JOSE Z. OSIAS; PACIFICO E. MARCOS; EDUARDO V. ROMUALDEZ; FERNANDO C. ORDOVEZA; and JUANITO ORDOVEZA, Members of the Board of Directors of Philippine Seeds, Inc.; CONCERNED MEMBERS OF THE DEVELOPMENT BANK OF THE PHILIPPINES, respondents. DAVIDE, JR., C.J.:

Facts: 1..) The core issue in this special civil action for certiorari is whether public respondent Ombudsman Aniano A. Desierto (hereafter OMBUDSMAN) committed grave abuse of discretion in holding that the offenses with which the other respondents were charged in OMB-0-96-0968 had already prescribed. 2.) On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and one representative each from the Office of the Executive Secretary, Department of Finance, Department of Justice, Development Bank of the Philippines, Philippine National Bank, Asset Privatization Trust, Government Corporate Counsel, and the Philippine Export and Foreign Loan Guarantee Corporation as members. The Committee was directed to perform the following functions: 1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the grant thereof; 2. Identify the borrowers who were granted "friendly waivers," as well as the government officials who granted these waivers; determine the validity of these waivers.1wphi1.nt 3. Determine the courses of action that the government should take to recover those loans, and to recommend appropriate actions to the Office of the President within sixty (60) days from the date hereof. 3.) In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated 15 July 1993, 5 the COMMITTEE reported that the Philippine, Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of the twenty-one corporations which obtained behest loans. In his instructions handwritten on the cover of the aforementioned Report, President Ramos directed COMMITTEE Chairman Magtanggol C. Gunigundo to, inter alia, "proceed with administrative and judicial actions against the twenty-one firms (out of 21) in this batch with positive findings ASAP." 6 4.) On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn complaint 7 against the Directors of PSI and the Directors of the Development Bank of the Philippines who approved the loans for violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, as amended, which read: Sec. 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: e. Causing any undue injury to any party, including the Government or giving any private party any unwarranted benefit, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

g. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. 5.) The complaint, later docketed as OMB-0-96-0968. 6.) in the resolution 8 dated 14 May 1996 and approved on 9 June 1996, the OMBUDSMAN dismissed the complaint in OMB-0-96-0968 on the ground of prescription. 7.) Its motion for reconsideration having been denied by the OMBUDSMAN in the Order 1997, the COMMITTEE filed this case raising this sole issue:
10

10.) Finally, the OMBUDSMAN maintains that any confidential relationship between the former strongman and the respondents DBP officials ceased altogether after the February 1986 EDSA revolution. Even assuming then that the running of the 10-year period of prescription was suspended by reason of the said confidential relationship, the same re-started in February 1986 and went on to lapse in February 1996. However, the complaint of the COMMITTEE in OMB-0-96-0968 was filed only on 2 March 1996. ISSUE: WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN HOLDING THAT THE PRESCRIPTIVE PERIOD IN THIS CASE SHOULD BE COUNTED FROM THE DATE OF THE GRANT OF THE BEHEST LOANS INVOLVED, AND NOT FROM THE DATE OF DISCOVERY OF THE SAME BY THE COMMITTEE. RULING: Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is Section 2 of Act No. 3326, 19 as amended, which provides: Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person and shall begin to run again if the proceedings are dismissed for reasons not constituting double jeopardy. This simply means that if the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed. In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the "beneficiaries of the loans." Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-096-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission. The assertion by the OMBUDSMAN that the phrase "if the same be not known" in Section 2 of Act No. 3326 does not mean "lack of knowledge" but that the crime "is not reasonably knowable" is unacceptable, as it provides an interpretation that defeats or negates the intent of the law, which is written in a clear and unambiguous language and thus provides no room for interpretation but only application. People v. Duque 22 is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. Since the computation of the prescriptive period for the filing of the criminal action should commence from the discovery of the offense, the OMBUDSMAN clearly acted with grave abuse of discretion in

of 19 May

WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN HOLDING THAT THE PRESCRIPTIVE PERIOD IN THIS CASE SHOULD BE COUNTED FROM THE DATE OF THE GRANT OF THE BEHEST LOANS INVOLVED, AND NOT FROM THE DATE OF DISCOVERY OF THE SAME BY THE COMMITTEE. 8.) The COMMITTEE asserts that even assuming that the discovery rule does not apply, still, because of the principle of "equitable tolling," prescription has not yet set in for the offenses with which respondents in OMB-0-96-0960 were charged. This principle is based on the doctrine "contra non valentem agere nulla currit praescriptio," i.e., "no prescription shall run against a person unable to bring an action." The COMMITTEE was unable to bring the action, for the cause therefor was not known or reasonably known to it owing to the fact that (1) the loans, being behest, were concealed; (2) both parties to the loan transactions were in conspiracy to perpetrate the fraud against the State; and (3) the loans were granted at the time then President Marcos was at the threshold of his authority when no one dared question, much less investigate, any of his orders. 9.) The OMBUDSMAN insists that the offenses with which the respondents were charged had already prescribed. As a matter of fact it prescribed in ten years pursuant to the original provision of Section 11 of R.A. No. 3019, which fixed the prescriptive period at ten years. B.P. Blg. 195, which increased the prescriptive period to fifteen years, became effective only on 16 March 1982 and cannot be given retroactive effect; hence, the offenses which might have arisen from the grant of the assailed loans in 1969, 1975 and 1978 prescribed in 1979, 1985 and 1988, respectively. The OMBUDSMAN points to Section 2 of Act No. 3326, which governs prescription of crimes under special laws and which reads as follows: Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof. . . According to him, the computation of the prescriptive period from the date of discovery would only be resorted to if the commission of the crime be not known at the day of the commission. The phrase "if the same be not known" does not mean "lack of actual knowledge," but that the crime "is not reasonably knowable" by reason of the nature of the crime or the environmental circumstances thereof. In the case filed by the COMMITTEE, the crimes alleged to have been committed were "reasonably knowable" because the transactions were "never conducted clandestinely . . . [but] carried out in the open, leaving a trail of public instruments/documents accessible and susceptible to evaluation." Moreover, as can be drawn from the allegation in the COMMITTEE's complaint that the DBP initiated PSI foreclosures starting March 1975, the corresponding mortgages were executed and registered.

dismissing outright Case No. OMB-0-96-0968. It should have first received the evidence from the complainant and the respondents to resolve the case on its merits and on the issue of the date of discovery of the offense -Jason V. 2. ARGANA V. REPUBLIC FACTS: In July 1987, respondent Republic of the Philippines filed with the Sandiganbayan a Petition for Forfeiture of alleged ill-gotten assets and properties of the late Maximino A. Argana, who served as Mayor of the Municipality of Muntinlupa2 from 1964 to 1967 and from 1972 until his death in 1985. On October 28, 1998, the Sandiganbayan remanded the case to the Presidential Commission on Good Government (PCGG) for the conduct of an inquiry. In 1990, the case was reactivated in the Sandiganbayan. Petitioners Maria Remedios Argana, Donata Almendrala Vda. De Argana, Luis Argana, Jr., Peregrino Argana, Estate of Gelacio Argana, Eufrocinio Nofuente, Amparo Argana Nofuente, Juanito Rogelio, Milagros Argana Rogelio, Maria Felicidad Argana, Maria Dorotea Argana, and Refedor South Gold Property Management & Development Corporation filed a series of motions, including a Motion to Dismiss on the ground of the lack of authority of the PCGG to institute the case on behalf of respondent. This issue eventually reached this Court and was decided in favor of respondent on September 29, 1994.3 Petitioners, in their Answer, denied that the properties sought to be forfeited by respondent were unlawfully acquired by the deceased Mayor and/or by petitioners. Still, to avoid a protracted litigation, petitioners exerted efforts to settle the case amicably with respondent through the PCGG. After a series of motions were again filed by petitioners, the Sandiganbayan finally set the case for pretrial but the pre-trial was reset several times in view of the manifestation of the parties that they were in the process of negotiating a compromise. In 1997, petitioners' offer of compromise was accepted by the PCGG in its Resolution No. 97-180-A.4 Thereafter, the PCGG conducted an evaluation of the properties offered for settlement by petitioners. In a Memorandum, the Director of the PCGG Research and Development Program, recommended the inclusion of another tract of land belonging to petitioners among the properties which would be subject of the compromise. On September 18, 1997, respondent, represented by PCGG Commissioners Reynaldo S. Guiao and Herminio A. Mendoza entered into a Compromise Agreement with petitioners, represented by petitioner Maria Felicidad Argana. Petitioners conveyed, ceded and released in favor of respondent a total of 361.9203 hectares of agricultural land in Pangil and Famy, Laguna. Subsequently, the OSG requested for clarification from the PCGG if the compromise agreement included all the sequestered assets of petitioners subject of litigation. In response to the request, PCGG informed the OSG in a letter dated February 4, 1998 that the properties mentioned in the Compromise Agreement comprise all the sequestered assets subject of litigation, and reiterated that it entered into a compromise agreement with petitioners because it believed that the evidence might not be sufficient to warrant continuing the prosecution of Civil Case No. 0026 and that it is to the best interest of the government to accept the offer of petitioners.9

On May 27, 1998, then President of the Republic of the Philippines Fidel V. Ramos approved the Compromise Agreement between petitioners and respondent.The OSG filed with the Sandiganbayan a Motion to Approve Compromise Agreement. After conducting hearings on the motion, the Sandiganbayan promulgated its Decision approving the Compromise Agreement and rendering judgment in accordance with the terms thereof. However, respondent, through the OSG and the PCGG, filed with the Sandiganbayan a Motion to Rescind Compromise Agreement and to Set Aside Judgment by Compromise (Motion to Rescind). Respondent prayed for the rescission of the Compromise Agreement or reformation thereof after a renegotiation with petitioners. Respondent contended that the partition of the properties in the Compromise Agreement was grossly disadvantageous to the government and that there was fraud and insidious misrepresentation by petitioners in the distribution and partition of properties, to the damage and prejudice of the government. According to respondent, there was fraud and insidious misrepresentation because petitioners proposed to divide the propertieswith 75% accruing to the government and the remaining 25% going to petitioners and their other creditorsbased on the total land area of the properties instead of on their value. As a result, the government obtained only Three Million Six Hundred Twenty Thousand Pesos (P3,620,000.00) worth of land, while petitioners received almost Four Billion Pesos (P4,000,000,000.00) worth. Petitioners filed an Answer to the Motion to Rescind and contended that the Decision of the Sandiganbayan could no longer be annulled because it had already become final and executory; that respondent's counsel had no authority to file the motion. The Sandiganbayan issued a Resolution granting respondent's motion to rescind and setting aside the Decision dated July 31, 1998. It also ruled that the presumption that the OSG had authority to file the Motion to Rescind was not overcome by petitioners. Under Republic Act No. 1379,14 the filing and prosecution of cases for forfeiture of unlawfully acquired property is a function of the OSG. ISSUES: WON the Sandiganbayan had the authority granting the motion to rescind filed by the respondent and denied Petitioners their right to substantive and procedural due process when it refused to voluntarily inhibit itself from further hearing the instant case. HELD: NO The Court also finds that there was no grave abuse of discretion on the part of the Sandiganbayan in granting the Motion to Rescind, which it treated as a petition for relief from judgment under Rule 38 of the 1997 Rules on Civil Procedure. The Court has previously held that as applied to a judgment based on compromise, both the sixty (60)-day and six (6)-month reglementary periods within which to file a petition for relief should be reckoned from the date when the decision approving the compromise agreement was rendered because such judgment is considered immediately executory and entered on the date that it was approved by the court. Applying the foregoing rule to the present case, the sixty (60)-day period should be counted from July 31, 1998, the date of the Sandiganbayan Decision granting the Motion to Approve Compromise Agreement. The sixtieth day from July 31, 1998 is September 29, 1998. The Motion to Rescind was filed by the OSG only on October 5, 1998, clearly several days after the sixtieth day from the rendition of the July 31, 1998 Decision. This notwithstanding, the Court finds that no grave abuse can be ascribed to the Sandiganbayan in admitting the Motion to Rescind as a petition for relief was timely filed.

Although as a general rule, the party filing a petition for relief must strictly comply with the sixty (60)-day and six (6)-month reglementary periods under Section 3, Rule 38,48 it is not without exceptions. The Court relaxed the rule in several cases49 and held that the filing of a petition for relief beyond the sixty 60-day period is not fatal so long as it is filed within the six (6)-month period from entry of judgment.50 The Court notes that the filing of the Motion to Rescind on October 5, 1998 was indeed seven days beyond the sixty 60-day period but still well within the six (6)-month period from entry of judgment. Moreover, the case involves an alleged fraud committed against the Republic, and thus justifies the liberal interpretation of procedural laws by the Sandiganbayan. Petitioners' claim that respondent failed to attach an affidavit of merit to its Motion to Rescind is belied by the record of the case. Petitioners in fact attached, as Annex "N" of their Petition for Certiorari, a copy of the respondent's Motion to Rescind. The Affidavit of Merit signed by Dennis M. Taningco, the counsel of the PCGG in Civil Case No. 0026, was attached to the Motion to Rescind. In any case, the Court in Mago v. Court of Appeals51 held that the absence of an affidavit of merit does not always result in the denial of the petition for relief, so long as the facts required to be set out in the affidavit appear in the verified petition. The oath which forms part of the petition elevates it to the same category as an affidavit.52 Neither was it necessary for respondent to attach a Certification against Forum-Shopping to the Motion to Rescind. As correctly held by the Sandiganbayan, the Motion to Rescind, which in effect was a petition for relief, is not an initiatory pleading which requires the inclusion of a Certification against ForumShopping. Section 2, Rule 38 requires that a petition for relief must be filed with the court which rendered the judgment or order sought to be set aside, and in the same case wherein the judgment or order was rendered. If the court finds that the allegations in the petition for relief are true, it shall set aside the judgment and try the principal case upon the merits as if a timely motion for new trial had been granted. 53 Clearly, then, a petition for relief is not an initiatory pleading in a new case which would require the filing by the petitioner therein of a Certification of Non- Forum Shopping. The Court also finds no abuse of discretion by the Sandiganbayan in denying petitioners' Urgent Motion for Voluntary Inhibition. As explained in Gutang v. Court of Appeals, 54 the import of the rule on voluntary inhibition is that the decision of a judge on whether or not to inhibit is left to his or her sound discretion and conscience, based on his or her rational and logical assessment of the case where the motion for inhibition is filed. It implies that in addition to pecuniary interest, relationship, or previous participation in the matter under litigationwhich are grounds for mandatory inhibition under the first paragraph of Section 1, Rule 137 of the Revised Rules of Courtthere might be other causes that could diminish the objectivity of the judge, thus warranting his or her inhibition. Petitioners' claim of bias and partiality on the part of the Sandiganbayan justices who issued the April 11, 2000 Resolution, evaluated in light of the resolution itself, is evidently more imagined than real. To say, as is petitioners' wont, that a judge who throws out a party's motion in the language employed by the Sandiganbayan in the questioned Resolution is necessarily prejudiced, is to be indiscriminate and precipitate. Petitioners' assertion that the April 11, 2000 Resolution was harshly worded and evinced prejudgment of the case in respondent's favor is easily disproved by a reading of the Resolution in its entirety. As will be discussed hereafter, the Sandiganbayan's pronouncement that the Compromise Agreement was grossly disadvantageous and prejudicial to the government is supported by the facts on record. In charging the Sandiganbayan with forejudgment when it said that "all it takes to prove the case is evidence that the properties are manifestly out of proportion to the late Mayor Maximino A. Argana's salary and to his other lawful income and other legitimately acquired income,"55 petitioners have taken the statement out of context. The Sandiganbayan made the statement in relation to its bewilderment as to why the PCGG expressed difficulty in prosecuting the case against the late Mayor Argana in spite of the presumption regarding unexplained wealth in Section 8 of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act). The Sandiganbayan therefore had legal and factual grounds to deny petitioners' motion for inhibition. Anent the propriety of the Sandiganbayan's nullification of the Compromise Agreement on the ground of extrinsic fraud, the Court holds that no error nor grave abuse of discretion can be ascribed to the

Sandiganbayan for ruling that the execution of the Compromise Agreement was tainted with fraud on the part of petitioners and in connivance with some PCGG officials. A circumspect review of the record of the case reveals that fraud, indeed, was perpetuated upon respondent in the execution of the Compromise Agreement, the assessed or market values of the properties offered for settlement having been concealed from the reviewing authorities such as the PCGG En Banc and even the President of the Republic. The discussion of the Sandiganbayan on the nature and extent of the fraud perpetuated upon respondent in the execution of the Compromise Agreement is clear and convincing. It is evident from the foregoing that the ruling of the Sandiganbayan is grounded on facts and on the law. The Court sees no reason to depart from the conclusions drawn by the Sandiganbayan on the basis of its findings, especially considering that the three justices comprising the Sandiganbayan's Third Division conducted a thorough examination of the documents submitted by the parties to this case, heard the testimonies of the parties' witnesses and observed their deportment during the hearing on the Motion to Rescind. Moreover, it is an established rule that the State cannot be estopped by the mistakes of its agents. 57 Respondent cannot be bound by a manifestly unjust compromise agreement reviewed on its behalf and entered into by its representatives from the PCGG who apparently were not looking after respondent's best interests. -Julie H. TERMINATION OF OFFICIAL RELATIONS 1. COLLANTES V. COURT OF APPEALS In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies. CHICO-NAZARIO, J.: Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career Executive Service Eligibility on 29 February 1996. Thereafter, on 1 July 1998, President Estrada appointed Collantes to the controversial post Undersecretary for Civilian Relations of the Department of National Defense (DND). As it happened, his stint in the DND was short lived. Collantes was supposedly ordered by then Secretary Orlando Mercado to renounce his post in favor of another presidential appointee, General Orlando Soriano. In deference to the Presidents prerogative, he resigned from office believing that he will soon be given a new assignment. Unfortunately, Collantes was not given any other post in the government, as in fact, he received a letter from President Estrada terminating his services effective 8 February 1999. Consequently, on 24 March 1999, Collantes requested the assistance of the Career Executive Service Board relative to the termination of his services as Undersecretary for Civilian Relations of the DND invoking his right to security of tenure as a CESO. Taking definite action on the matter, Collantes instituted a Petition for Quo Warranto and Mandamus before Us on 29 January 2001, docketed as C.A. G.R. SP NO. 62874. Collantes maintained that he was constructively dismissed from work, without any cause and due process of law, and thus, his position in

the DND was never vacated at all. Accordingly, he prayed that the appointment of Mr. Edgardo Batenga (to the post he vacated) be nullified, and that he be reinstated to his former position with full back salaries. Notably, Collantes also sought for appointment to a position of equivalent rank commensurate to his CESO Rank I if reinstatement to his former position is no longer legally feasible. Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes letter-request issuing Resolution No. 011364, and thereby holding that Collantes relief as Undersecretary of DND amounted to illegal dismissal as he was not given another post concomitant to his eligibility. Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874 dismissing the Petition for Quo Warranto and Mandamus filed by Collantes. Issue: 1. effect of 2 final decisions rendered (CSC and the CA) There are thus three solutions which we can adopt in resolving the case at bar: the first is for the parties to assert their claims anew, the second is to determine which judgment came first, and the third is to determine which of the judgments had been rendered by a court of last resort As there are conflicting jurisprudence on the second solution, it is appropriate for this Court to adopt either the first or the third solution. The first solution involves disregarding the finality of the two previous judgments and allowing the parties to argue on the basis of the merits of the case anew. The third solution merely involves the determination of which judgment has been rendered by this Court, the court of last resort in this jurisdiction. Adopting the third solution will result in the denial of this Petition for Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came about by the failure to file a motion for reconsideration or an appeal within the proper reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision was by virtue of the 12 November 2001 Resolution 28 of this Court which declared the case closed and terminated upon the manifestation of petitioner that he decided not to pursue his appeal and was thus withdrawing the motion for extension of time to file a petition for review on certiorari. The better solution, however, is to let the parties argue the merits of the case anew, and decide the case on the basis thereof. We can do this either by remanding the case to a lower court, or by resolving the issues in this disposition. The latter recourse is more appropriate, for three reasons: (1) all the facts, arguments, and pleadings in support of the parties contentions are now before us, with the parties advancing the very same contentions as those in this Petition; (2) a remand to the Court of Appeals would entail asking the latter to resolve the very same issues it had passed upon twice; and (3) a remand to the Court of Appeals would only entail another unnecessary delay in the termination of the case when the case is now ripe for adjudication before us. Main issue for poli 2. won collantes may be removed from his position as Undersecretary of the Department of National Defense without the concomitant transfer to a position equivalent in rank or be removed then, be floated perpetually, which is tantamount to a constructive dismissal, in violation of his right to security of tenure as a career executive service eligible."

There are no special legal effects when a resignation is one of a courtesy resignation. The mere fact that the President, by himself or through another, requested for someones resignation does not give the President the obligation to appoint such person to another position. A courtesy resignation is just as effectual as any other resignation. There can be no implied promises of another position just because the resignation was made out of courtesy. Any express promise of another position, on the other hand, would be void, because there can be no derogation of the discretion of the appointing power, and because its object is outside the commerce of man. As held by the Court of Appeals in its 30 August 2001 Decision: In the first place, petitioner has not established by any quantum of certainty the veracity of his claim that he was promised an equivalent position in the government. Assuming, however, that such promise was true, petitioner, as a ranking member of the bureaucracy, ought to have known that such promise offers no assurance in law that the same would be complied with. The time-honored rule is that public office is a public trust, and as such, the same is governed by law, and cannot be made the subject of personal promises or negotiations by private persons. -Amador 2. BELICENA V. SECRETARY OF FINANCE ANTONIO P. BELICENA vs SECRETARY OF FINANCE G.R. No. 143190 Facts: Antonio P. Belicena, the Petitioner in the present recourse, was appointed Acting Undersecretary, in the Department of Finance, on February 12, 1997 and forthwith assumed office. While still acting as Acting Undersecretary of Finance, the president designated him, on May 20, 1997, as Acting Secretary of Finance, effective May 22, 1997 until May 27, 1997, while the Secretary of Finance, Roberto de Ocampo, was in Hongkong, on official business for the government (Annex "E", Petition [with the Court of Appeals]). The Petitioner took his oath of office, on May 22, 1997, as Acting Secretary of Finance. In a letter-Memorandum, Acting Secretary Executive Luis C. Liwanag III confirmed the designation of the Petitioner as Acting Secretary of Finance. The petitioner received his one (1) days salary as Acting Secretary of Finance. (p. 1, Annex "A", Petition). "On October 8, 1997, the Petitioner reached the compulsory retirement age of 65 years old, by which time, he had rendered forty-four (44) years of continuous service with the Department of Finance. However, the President extended his services, as Acting Undersecretary of Finance, until April 8, 1998 and extended the same anew until June 30, 1998. In anticipation of his impending compulsory retirement, the Petitioner submitted, on May 18, 1998, his application for terminal leave to the then Secretary of Finance Salvador Enriquez but the latter did not act on said application. When Secretary of Finance Edgardo Espiritu assumed office, he approved the application of Petitioner. Accordingly, a Disbursement Voucher for Land Bank of the Philippines Check No. 0000083217-B1, in the aggregate amount of P2,506,464.21, inclusive of the terminal leave pay of the Petitioner, in the amount of P2,521,568.21, were processed and submitted, on July 21, 1998, to Assistant Secretary Ma. Eleanor F. dela Cruz for her signature (Annex "I", Petitioner [with the Court of Appeals]). However, the latter refused to sign the voucher, claiming that, in the computation of Petitioners terminal leave pay, his one-day salary as Acting Secretary of Finance should not be considered as his last monthly salary. The same should be based on his salary as Acting Undersecretary of Finance. Despite petitioners request for the reconsideration of the decision of Assistant Secretary dela Cruz, the latter refused to budge. In the meantime, conformably with the opinion of Assistant Secretary Ma. Eleanor dela Cruz, a Disbursement Voucher and Land Bank of the Philippines [Check] No. 00009141-B1, in the aggregate amount of P2,072,900.46 were prepared and signed by Assistant Secretary Ma. Eleanor F. dela Cruz (Annex "M", Petition [with the Court of Appeals]). There October 17, 2001

Petitioners arguments presuppose that he had been removed from his position as Undersecretary of the DND. He, however, did not present any evidence to that effect, whether in this Petition or in his earlier Petition for Quo Warranto and Mandamus with the Court of Appeals. If he is implying that he was removed from office by virtue of his account that he was approached by persons close to President Joseph Estrada who asked him to relinquish his post, which he did, then this Petition must fail, for, by his own deliberate deed, he resigned from his position.

was thus a difference of P418,243.50 between the amount claimed by the Petitioner and the amount approved under the latter voucher. The Petitioner accepted the amount without prejudice to his right to assail the position of the Assistant Secretary. To settle the matter, Solomon S. Cua, the Officer-in-Charge of the Office of the Secretary of Finance, sought on August 22, 1998, the resolution of the Civil Service Commission on the salary of the Petitioner to be used as correct basis for the computation of the monetary value of his terminal leave (Annex "O", Petition [with the Court of Appeals]). On October 1, 1998, the Commission found and declared that "since the one-day salary received by the petitioner, as Acting Secretary of Finance, was by virtue of a valid designation, by the President, of the Petitioner as Acting Secretary of Finance, the monetary value of his terminal leave should be computed on the basis of his highest salary, that is, corresponding to his salary as Acting Secretary of Finance (Annex "P", Petition [with the Court of Appeals]). "Solomon S. Cua, the Officer-in-Charge of the Office of the Secretary of Finance, filed a motion, with the Commission, for the reconsideration of its ruling (Annex "O", Petition [with the Court of Appeals]). He averred that, since the Secretary of Finance Roberto de Ocampo was in Hongkong, on official business, for the government, the Petitioner, when designated as Acting Secretary of Finance, was merely given additional duties and responsibilities. Hence, the Petitioner was not entitled to the salary of a Secretary of Finance. Only one person was entitled to receive the salary for said position since there was only one salary appropriated by Congress for the position of Secretary of Finance. A salary differential can only be paid out of the amount appropriated for the salary of the Secretary of Finance, but if the incumbent Secretary of Finance was receiving his salary at the time the Petitioner was designated as Acting Secretary of Finance, then there was no legal source of fund from which the salary differential may be paid to the Petitioner. On January 7, 1999, the Civil Service Commission issued resolution No. 990046 granting the motion of Solomon S. Cua and thus reconsidered its resolution rendered on October 1, 1998 (Annex "A", Petition [with the Court of Appeals]). The petitioner, this time, filed a "Motion for Reconsideration" of the Resolution of the Respondent. The Petitioner ratiocinated that, under Section 17, Chapter 5, Title I, Book III of the 1987 Revised Administrative Code, the president of the Philippines may designate temporarily an officer already in the government service to perform the functions of an office in the Executive Branch when the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause and the person so designated shall receive the compensation attached to the position unless he is already in the government service, in which case, he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The Department of Finance should have, in its computation, included his COLA and RATA conformably with the Decision of the Supreme Court in "Jesus N. Borromeo, versus Civil Service Commission, 199 SCRA 911" (Annex "Q", Petition [with the Court of Appeals]. "However, on July 8, 1999, the Respondent issued Resolution No. 991507 denying Petitioners motion for reconsideration, declaring that the Petitioner cannot find solace in Section 17, Chapter 5, Title I, Book III of the 1987 Revised Administrative Code because the same applies only when the incumbent Secretary of Finance was unable to perform his duties by reason of illness, absence or any other cause analogous thereto. Applying the doctrine of ejusdem generis in statutory construction, the petitioner cannot justifiably claim that Secretary of Finance Roberto de Ocampo was unable to perform his duties as, in fact, he was in Hongkong on official business for the government. The Petitioner cannot likewise invoke the Decision of the Supreme Court in "Jesus N. Borromeo versus Civil Service Commission, supra," because the principle enunciated therein applied only to qualified members of the Judiciary and Constitutional Commissions and not to officials of the Executive Department. On January 28, 2000, the Court of Appeals promulgated a decision dismissing the petition, in effect upholding the resolutions of the Civil Service Commission. Issue: Whether in the commutation of petitioners terminal leave credits, his highest monthly salary shall be that corresponding to the position of Secretary of Finance. Held: YES.

President Fidel V. Ramos designated petitioner as Acting Secretary of Finance effective May 22, 1997, for the duration of the trip to Hongkong of Secretary of Finance Robert F. de Ocampo.8 He took his oath of office as Acting Secretary on May 22, 1997.9 The issue of whether petitioners highest monthly salary for purposes of computing his terminal leave pay shall be that corresponding to the position of Secretary of Finance, which he received as Acting Secretary of Finance is dependent on the statutory basis of the President when he designated petitioner as Acting Secretary of Finance on May 22, 1997. Petitioner asserts that his designation as Acting Secretary was based on Section 17, Chapter 5, Title 1, Book III, of the Administrative Code of 1987 (Executive Order No. 292), which provides that: "(1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: "(a) The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or "(b) There exists a vacancy. "(2) The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. "(3) In no case shall a temporary designation exceed one (1) year." When the President designated the petitioner as Acting Secretary on May 22, 1997, he did so under a well considered opinion that the absence of Secretary de Ocampo was of such an extent that the latter would be unable to perform his duties and, by reason of such opinion, the President extended a temporary designation to petitioner under Section 17 of the Administrative Code of 1987. The Commission on Audit, the Constitutional office tasked with the duty to "examine, audit and settle all accounts pertaining to the revenue, and receipts of and expenditures or uses of funds and property, owned or held in trust by or pertaining to the government or any of its subdivisions x x x" (Article IX-D, Section 2[1], 1987 Constitution), has held that a government official appointed or designated in an acting capacity pursuant to Section 17, Chapter 5, Title 1, Book III of the 1987 Administrative Code is entitled to salary differential and that his highest monthly salary for purposes of computing his terminal leave pay shall include such salary differential. The well-settled rule is that the money value of the terminal leave of a retiring government official shall be computed at the retirees highest monthly salary. In Paredes v. Acting Chairman,10 the Court had occasion to interpret Subsection (c), Section 12, Commonwealth Act No. 186, the law authorizing the grant of terminal leave pay, as follows: "The foregoing legal provision requires the computation of the money value of the terminal leave to be based on the retirees "highest rate received." And a reading of the entire provision shows that "highest rate received" refers to the retirees highest "monthly salary." What was petitioners highest monthly salary upon which the commutation of his terminal leave credit shall be based?

His highest monthly salary is that corresponding to position of Secretary of Finance which petitioner received while he was Acting Secretary from May 22 to 25, 1997, during the travel abroad of the Secretary. Petitioner was due to retire as Undersecretary of Finance upon reaching the compulsory retirement age of 65 years on October 8, 1997, at which time he would have served the government for forty-four (44) years. However, President Ramos saw the need to extend petitioners services with the Department of Finance and, hence, extended his term twice until June 30, 1998. -Aries

We agree with Atty. Candelaria that the COMELEC is an agency not pertaining to the judiciary. Pursuant to Section 1, Article IX of the 1987 Constitution, the COMELEC is an independent Constitutional Commission. Hence, we find the first ground invoked by Justice Pardo untenable. However, as to the second ground, we agree with Justice Pardos view that the term "Court" as used in Section 3, B.P. No. 129, as amended, includes the Supreme Court. He submits that notwithstanding his service as Chairman in the Commission on Elections after he resigned as Associate Justice of the Court of Appeals on 16 February 1995 and before he was appointed Associate Justice of the Supreme Court on 7 October 1998, his service in the Judiciary is still considered continuous.1vvphi1.nt The provision reads:

3. IN RE REQUEST OF JUSTICE BERNARDO PARDO FOR ADJUSTMENT OF HIS LONGEVITY PAY A.M. No. 02-1-12-SC March 14, 2007

IN RE: REQUEST OF JUSTICE BERNARDO P. PARDO FOR ADJUSTMENT OF HIS LONGEVITY PAY. RESOLUTION SANDOVAL-GUTIERREZ, J.: This refers to the letter dated 3 January 2002 of Supreme Court Associate Justice Bernardo P. Pardo (retired) requesting the adjustment of his longevity pay by including in the computation his service as Chairman in the Commission on Elections (COMELEC). The request is founded on two grounds: First, his service in the judiciary for more than 30 years is deemed continuous. On 21 July 1971, he was appointed Acting Assistant Solicitor General with the rank, salary and privileges of a Judge of the Court of First Instance (now Regional Trial Court). On 10 February 2002, he retired compulsorily. In the interim, he occupied the positions of District Judge, Court of First Instance of Rizal, Branch 34, Caloocan City, from 3 May 1974 to 17 January 1983; Regional Trial Court, Branch 43, Manila, from 18 January 1983 to 29 March 1993; Associate Justice of the Court of Appeals, from 30 March 1993 to 16 February 1995; Chairman, COMELEC, from 17 February 1995 to 6 October 1998; and Associate Justice of the Supreme Court, from 7 October 1998 to 10 February 2002, or a total of 30 years and six months. Justice Pardo contends that the COMELEC must be considered part of the judiciary because it exercises quasi-judicial or even judicial functions. Second, under Section 3 of Batas Pambansa (B.P.) No. 129, as amended (re-organization of the Court of Appeals), any member of the Court of Appeals who is reappointed to the Court after rendering service in any other position in the government "shall retain the precedence in his original appointment and his service shall, for all intents and purposes, be considered as continuous and uninterrupted." Justice Pardo maintains that the term "Court" includes not only the Court of Appeals but the Supreme Court as well. On 14 January 2002, the Court En Banc referred Justice Pardos letter to Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer, for comment and recommendation. On 15 January 2002, Atty. Candelaria submitted to the Chief Justice her comment and recommendation expressing regret that she is "not amenable to Justice Pardos request." She submitted that, as to the first ground, the COMELEC is an agency not pertaining to the judiciary, but more properly to the Executive Department. And as to the second ground, that the provision of Section 3, B.P. No. 129, as amended, explicitly applies only to reappointed members of the Court of Appeals.

"SEC. 3. Organization. There is hereby created a Court of Appeals which shall consist of a Presiding Justice and fifty Associate Justices who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment, and the Associate Justices shall have precedence according to the dates of their respective appointments, or when the appointments of two or more of them shall bear the same date, according to the order in which their appointments were issued by the President. Any member who is reappointed to the Court after rendering service in any other position in the government shall retain the precedence to which he was entitled under his original appointment, and his service in the Court shall, for all intents and purposes, be considered as continuous and uninterrupted. (As amended by Executive Order No. 33, July 28, 1986.)" We hold that the term "Court" is used in its generic sense and pertains actually to the "Judiciary." Otherwise, the law should have provided "reappointed to the Court of Appeals." It is an accepted tenet in statutory construction that "statutes are to be construed in the light of the purposes to be achieved and the evils sought to be remedied. Hence, in construing a statute, the reason for its enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers."1 As earlier mentioned, Justice Pardo resigned from the Court of Appeals on 16 February 1995 and thereafter served as Chairman in the COMELEC from 17 February 1995 up to 6 October 1998. Then, he was appointed Associate Justice of the Supreme Court on 7 October 1998 and held office there up to 10 February 2002. Considering that he was reappointed to the Supreme Court after rendering service in the COMELEC, then, pursuant to the provision of Section 3 of B.P. Blg. 129, as amended, quoted above, it follows that Justice Pardos service in the Court of Appeals and the Supreme Court is considered continuous despite his appointment as Chairman of the COMELEC. The purpose of the law in granting longevity pay to Judges and Justices is to recompense them for each five years of continuous, efficient, and meritorious service rendered in the Judiciary. It is the long service that is rewarded, from the lowest to the highest court in the land. WHEREFORE, we resolve to GRANT the request of Justice Pardo that his service in the COMELEC be included in the computation of his longevity pay. Let this matter be referred to the Fiscal Management and Budget Office for re-computation of his longevity pay by including his service as Chairman in the COMELEC, and, accordingly, his corresponding retirement benefits.