A.M. No. P-07-2333 December 19, 2007 (formerly OCA IPI No. 07-2510-P) ANONYMOUS, complainant, vs. MA.

VICTORIA P. RADAM, Utility Worker, Office of the Clerk of Court, Regional Trial Court of Alaminos City, respondent. RESOLUTION CORONA, J.: In an anonymous letter-complaint dated September 30, 2005,1 respondent Ma. Victoria Radam, utility worker in the Office of the Clerk of Court of the Regional Trial Court of Alaminos City in Pangasinan, was charged with immorality. The unnamed complainant alleged that respondent was unmarried but got pregnant and gave birth sometime in October 2005.2 The complainant claimed that respondents behavior tainted the image of the judiciary. In connection with the complaint, Judge Elpidio N. Abella3 conducted a discreet investigation to verify the allegations against respondent. In his report dated March 8, 2006,4 Judge Abella made the following findings: On March 1, 2006, respondent submitted a letter addressed to the Honorable Court Administrator, thru the undersigned, duly subscribed and sworn to before the Clerk of Court VI of the Court, alleging among others, the following: 1) She admitted that she is single/unmarried, and indeed she was pregnant and actually gave birth to a baby boy named Christian Jeon Radam on 03 November 2005 at the Western Pangasinan District Hospital, Alaminos City; 2) The reason why she did not yet marry the father of her child Christian Jeon was that she and the childs father have pending application[s] [to migrate to Canada] as in fact they have [a] mutual plan to remain unmarried [and] 3) Nevertheless, she expressed her remorse and promised not to commit the same mistake and indiscretion in the future. Further investigation reveal[ed] the following: 1) That respondent was appointed as Utility Worker on September 4, 2000; 2) The father of Christian Jeon Radam is unknown, as shown by the childs Certificate of Live Birth, hereto attached;5 3) It was verbally admitted by the respondent that she had given birth to two (2) other children before Christian Jeon, but they were conceived and born while respondent was working abroad and before she was employed in the [Office of the Clerk of Court of the Regional Trial Court of] Alaminos City.6 In this connection, Judge Abella made the following recommendation: Since respondent admitted that she is single and that she got pregnant and gave birth to a baby boy without being married to the father of the child, albeit she advanced the reason for her remaining unmarried, it being that she and her boyfriend had a mutual plan to migrate to Canada, this Investigating Judge considers that such conduct of the respondent fell short of the strict standards of Court personnel and contrary to the Code of Judicial Ethics and the Civil Service Rules. A place in the judiciary demands upright men and women who must carry on with dignity, hence respondent is guilty of disgraceful and immoral conduct which cannot be countenanced by the Court. Certainly, the image of the Judiciary has been affected by such conduct of the respondent. Premises considered, it is hereby respectfully recommended that respondent MA. VICTORIA RADAM be accordingly found GUILTY of IMMORAL CONDUCT or ACT UNBECOMING A COURT

EMPLOYEE. A suspension of one (1) month or a fine of Php5,000.00 is respectfully recommended, with warning that a repetition of the same or similar act in the future will be dealt with more severely.7 After reviewing the findings and recommendation of Judge Abella, the Office of the Court Administrator (OCA) recommended that, in accordance with Villanueva v. Milan,8 respondent be absolved of the charge of immorality because her alleged misconduct (that is, giving birth out of wedlock) did not affect the character and nature of her position as a utility worker.9 It observed: [T]here is no indication that the relationship of respondent to her alleged boyfriend has caused prejudice to any person or has adversely affected the performance of her function as utility worker to the detriment of the public service. However, it proposed that she be held liable for conduct unbecoming a court employee and imposed a fine ofP5,000 for stating in the birth certificate of her child Christian Jeon that the father was "unknown" to her.10 The OCA correctly exonerated respondent from the charge of immorality. However, its recommendation to hold her liable for a charge of which she was not previously informed was wrong. For purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral under civil service laws. For such conduct to warrant disciplinary action, the same must be "grossly immoral," that is, it must be so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree.11 In Estrada v. Escritor,12 we emphasized that in determining whether the acts complained of constitute "disgraceful and immoral behavior" under civil service laws, the distinction between public and secular morality on the one hand, and religious morality, on the other should be kept in mind.13 The distinction between public and secular morality as expressed albeit not exclusively in the law, on the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality.14 Thus, government action, including its proscription of immorality as expressed in criminal law like adultery or concubinage, must have a secular purpose.15 For a particular conduct to constitute "disgraceful and immoral" behavior under civil service laws, it must be regulated on account of the concerns of public and secular morality. It cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded on "cultural" values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution and the laws.16At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that they protect behavior that may be frowned upon by the majority.17 Under these tests, two things may be concluded from the fact that an unmarried woman gives birth out of wedlock: (1) if the father of the child is himself unmarried, the woman is not ordinarily administratively liable for disgraceful and immoral conduct.18 It may be a not-so-ideal situation and may cause complications for both mother and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief systems irrespective of dogmatic origins.19 (2) if the father of the child born out of wedlock is himself married to a woman other than the mother, then there is a cause for administrative sanction against either the father or the mother.20 In such a case, the "disgraceful and immoral conduct" consists of having extramarital relations with a married person.21 The sanctity of marriage is constitutionally recognized22 and likewise affirmed by our statutes as a special contract of permanent union.23 Accordingly, judicial employees have been sanctioned for their dalliances with married persons or for their own betrayals of the marital vow of fidelity.

In this case, it was not disputed that, like respondent, the father of her child was unmarried. Therefore, respondent cannot be held liable for disgraceful and immoral conduct simply because she gave birth to the child Christian Jeon out of wedlock. Respondent was indicted only for alleged immorality for giving birth out of wedlock. It was the only charge of which she was informed. Judge Abellas investigation focused solely on that matter. Thus, the recommendation of the OCA that she be held administratively liable in connection with an entry in the birth certificate of Christian Jeon came like a thief in the night. It was unwarranted. Respondent was neither confronted with it nor given the chance to explain it. To hold her liable for a totally different charge of which she was totally unaware will violate her right to due process. The essence of due process in an administrative proceeding is the opportunity to explain ones side, whether written or verbal.24 This presupposes that one has been previously apprised of the accusation against him or her. Here, respondent was deprived of both with regard to her alleged unbecoming conduct in relation to a certain statement in the birth certificate of her child. An employee must be informed of the charges proferred against him, and the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that cannot [be] dispense[d] with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defense(s).25 Ones employment is not merely a specie of property rights. It is also the means by which he and those who depend on him live.26 It is therefore protected by the guarantee of security of tenure. And in the civil service, this means that no government employee may be removed, suspended or disciplined unless for cause provided by law27 and after due process. Unless the constitutional guarantee of due process is a mere platitude, it is the Courts duty to insist on its observance in all cases involving a deprivation, denigration or dilution of ones right to life, liberty and property. WHEREFORE, the administrative complaint against respondent Ma. Victoria P. Radam is hereby DISMISSED. She is, however, strongly advised to be more circumspect in her personal and official actuations in the future. SO ORDERED. Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Leonardo-de Castro, JJ., concur.

[G.R. No. 173176, August 26, 2008] JUDY ANNE L. SANTOS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND BUREAU OF INTERNAL REVENUE, RESPONDENTS. DECISION
CHICO-NAZARIO, J.: Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Revised Rules of Court filed by petitioner Judy Anne L. Santos (Santos) seeking the reversal and setting aside of the Resolution,[2] dated 19 June 2006, of the Court of Tax Appeals (CTA) en banc in C.T.A. EB. CRIM. No. 001 which denied petitioner's Motion for Extension of Time to File Petition for Review. Petitioner intended to file the Petition for Review with the CTA en banc to appeal the Resolutions dated 23 February 2006[3]and 11 May 2006[4] of the CTA First Division in C.T.A. Crim. Case No. 0-012 denying, respectively, her Motion to Quash the Information filed against her for violation of Section 255, in relation to Sections 254 and 248(B) of the National Internal Revenue Code (NIRC), as amended; and her Motion for Reconsideration. There is no controversy as to the facts that gave rise to the present Petition. On 19 May 2005, then Bureau of Internal Revenue (BIR) Commissioner Guillermo L. Parayno, Jr. wrote to the Department of Justice (DOJ) Secretary Raul M. Gonzales a letter[5] regarding the possible filing of criminal charges against petitioner. BIR Commissioner Parayno began his letter with the following statement: I have the honor to refer to you for preliminary investigation and filing of an information in court if evidence so warrants, the herein attached Joint Affidavit of RODERICK C. ABAD, STIMSON P. CUREG, VILMA V. CARONAN, RHODORA L. DELOS REYES under Group SupervisorTEODORA V. PURINO, of the National Investigation Division, BIR National Office Building, BIR Road, Diliman, Quezon City, recommending the criminal prosecution of MS. JUDY ANNE LUMAGUI SANTOS forsubstantial underdeclaration of income, which constitutes asprima facie evidence of false or fraudulent return under Section 248(B) of the NIRC and punishable under Sections 254 and 255 of the Tax Code. In said letter, BIR Commissioner Parayno summarized the findings of the investigating BIR officers that petitioner, in her Annual Income Tax Return for taxable year 2002 filed with the BIR, declared an income of P8,033,332.70 derived from her talent fees solely from ABS-CBN; initial documents gathered from the BIR offices and those given by petitioner's accountant and third parties, however, confirmed that petitioner received in 2002 income in the amount of at least P14,796,234.70, not only from ABS-CBN, but also from other sources, such as movies and product endorsements; the estimated tax liability arising from petitioner's underdeclaration amounted to P1,718,925.52, including incremental penalties; the non-declaration by petitioner of an amount equivalent to at least 84.18% of the income declared in her return was considered a substantial underdeclaration of income, which constituted prima facieevidence of false or fraudulent return under Section 248(B)[6] of the NIRC, as amended; and petitioner's failure to account as part of her income the professional fees she received from sources other than ABS-CBN and her underdeclaration of the income she received from ABS-CBN amounted to manifest violations of Sections 254[7] and 255,[8] as well as Section 248(B) of the NIRC, as amended. After an exchange of affidavits and other pleadings by the parties, Prosecution Attorney Olivia Laroza-Torrevillas issued a Resolution[9] dated 21 October 2005 finding probable cause and recommending the filing of a criminal information against petitioner for violation of Section 255 in relation to Sections 254 and 248(B) of the NIRC, as amended. The said Resolution was approved by Chief State Prosecutor Jovencito R. Zuno. Pursuant to the 21 October 2005 DOJ Resolution, an Information[10] for violation of Section 255 in relation to Sections 254 and 248(B) of the NIRC, as amended, was filed with the CTA on 3 November 2005 and docketed as C.T.A. Crim. Case No. 0-012. However, the CTA First Division, after noting several discrepancies in the Information filed, required the State Prosecutor to clarify and explain the same, and to submit the original copies of the parties' affidavits, memoranda, and all other evidence on record.[11]

Consequently, Prosecution Attorney Torrevillas, on behalf of respondent People, submitted on 1 December 2005 a Compliance with Ex Parte Motion to Admit Attached Information.[12] Prosecution Attorney Torrevillas moved that the documents submitted be admitted as part of the record of the case and the first Information be substituted by the attached second Information. The second Information[13]addressed the discrepancies noted by the CTA in the first Information, by now reading thus: The undersigned Prosecution Attorney of the Department of Justice hereby accuses JUDY ANNE SANTOS y Lumagui of the offense of violation of Section 255, of Republic Act No. 8424, otherwise known as the "Tax Reform Act of 1997," as amended, committed as follows: "That on or about the 15th day of April, 2003, at Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfully, unlawfully, and feloniously file a false and fraudulent income tax return for taxable year 2002 by indicating therein a gross income of P8,033,332.70 when in truth and in fact her correct income for taxable year 2002 is P16,396,234.70 or a gross underdeclaration/difference of P8,362,902 resulting to an income tax deficiency of P1,395,116.24 excluding interest and penalties thereon of P1,319,500.94 or a total income tax deficiency of P2,714,617.18 to the damage and prejudice of the government of the same amount.["] In a Resolution[14] dated 8 December 2005, the CTA First Division granted the People's Ex Parte Motion and admitted the second Information. The CTA First Division then issued on 9 December 2005 a warrant for the arrest of petitioner.[15] The tax court lifted and recalled the warrant of arrest on 21 December 2005 after petitioner voluntarily appeared and submitted herself to its jurisdiction and filed the required bail bond in the amount of P20,000.00.[16] On 10 January 2006, petitioner filed with the CTA First Division a Motion to Quash[17]the Information filed in C.T.A. Crim. Case No. 0-012 on the following grounds: 1. The facts alleged in the INFORMATION do not constitute an offense; 2. The officer who filed the information had no authority to do so; 3. The Honorable Court of Tax Appeals has no jurisdiction over the subject matter of the case; and 4. The information is void ab initio, being violative of due process, and the equal protection of the laws. In a Resolution[18] dated 23 February 2006, the CTA First Division denied petitioner's Motion to Quash and accordingly scheduled her arraignment on 2 March 2006 at 9:00 a.m. Petitioner filed a Motion for Reconsideration and/or Reinvestigation,[19] which was again denied by the CTA First Division in a Resolution[20] dated 11 May 2006. Petitioner received a copy of the 11 May 2006 Resolution of the CTA First Division on 17 May 2006. On 1 June 2006, petitioner filed with the CTA en banc a Motion for Extension of Time to File Petition for Review, docketed as C.T.A. EB. CRIM. No. 001. She filed her Petition for Review with the CTA en banc on 16 June 2006. However, in its Resolution[21] dated 19 June 2006, the CTA en banc denied petitioner's Motion for Extension of Time to File Petition for Review, ratiocinating that: In the case before Us, the petitioner is asking for an extension of time to file her Petition for Review to appeal the denial of her motion to quash in C.T.A. Crim. Case No. 0-012. As stated above, a resolution denying a motion to quash is not a proper subject of an appeal to the Court En Banc under Section 11 of R.A. No. 9282 because a ruling denying a motion to quash is only an interlocutory order, as such, it cannot be made the subject of an appeal pursuant to said law and the Rules of Court. Section 1 of Rule 41 of the Rules of Court provides that "no appeal may be taken from an interlocutory order" and Section

1 (i) of Rule 50 provides for the dismissal of an appeal on the ground that "the order or judgment appealed from is not appealable". Time and again, the Supreme Court had ruled that the remedy of the accused in case of denial of a motion to quash is for the accused to enter a plea, go to trial and after an adverse decision is rendered, to appeal therefrom in the manner authorized by law. Since a denial of a Motion to Quash is not appealable, granting petitioner's Motion for Extension of Time to File Petition for Review will only be an exercise in futility considering that the dismissal of the Petition for Review that will be filed by way of appeal is mandated both by law and jurisprudence.[22] Ultimately, the CTA en banc decreed: WHEREFORE, premises considered, petitioner's Motion for Extension of Time to File Petition for Review filed on June 1, 2006 is hereby DENIED for lack of merit.[23] Now comes petitioner before this Court raising the sole issue of: WHETHER A RESOLUTION OF A CTA DIVISION DENYING A MOTION TO QUASH IS A PROPER SUBJECT OF AN APPEAL TO THE CTA EN BANCUNDER SECTION 11 OF REPUBLIC ACT NO. 9282, AMENDING SECTION 18 OF REPUBLIC ACT NO. 1125.[24] Section 18 of Republic Act No. 1125,[25] as amended by Republic Act No. 9282,[26]provides: SEC. 18. Appeal to the Court of Tax Appeals En Banc. - No civil proceedings involving matters arising under the National Internal Revenue Code, the Tariff and Customs Code or the Local Government Code shall be maintained, except as herein provided, until and unless an appeal has been previously filed with the CTA and disposed of in accordance with the provisions of this Act. A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc. Petitioner's primary argument is that a resolution of a CTA Division denying a motion to quash is a proper subject of an appeal to the CTA en banc under Section 18 of Republic Act No. 1125, as amended, because the law does not say that only a resolution that constitutes a final disposition of a case may be appealed to the CTA en banc. If the interpretation of the law by the CTA en banc prevails, a procedural void is created leaving the parties, such as petitioner, without any remedy involving erroneous resolutions of a CTA Division. The Court finds no merit in the petitioner's assertion. The petition for review under Section 18 of Republic Act No. 1125, as amended, may be new to the CTA, but it is actually a mode of appeal long available in courts of general jurisdiction. Petitioner is invoking a very narrow and literal reading of Section 18 of Republic Act No. 1125, as amended. Indeed, the filing of a petition for review with the CTA en banc from a decision, resolution, or order of a CTA Division is a remedy newly made available in proceedings before the CTA, necessarily adopted to conform to and address the changes in the CTA. There was no need for such rule under Republic Act No. 1125, prior to its amendment, since the CTA then was composed only of one Presiding Judge and two Associate Judges.[27] Any two Judges constituted a quorum and the concurrence of two Judges was necessary to promulgate any decision thereof.[28] The amendments introduced by Republic Act No. 9282 to Republic Act No. 1125 elevated the rank of the CTA to a collegiate court, with the same rank as the Court of Appeals, and increased the number of its members to one Presiding Justice and five Associate Justices.[29] The CTA is now allowed to sit en banc or in two Divisions with each Division consisting of three Justices. Four Justices shall constitute a quorum for sessions en banc, and the affirmative votes of four members of the Court en banc are necessary for the rendition of a decision or resolution; while two

Justices shall constitute a quorum for sessions of a Division and the affirmative votes of two members of the Division shall be necessary for the rendition of a decision or resolution.[30] In A.M. No. 05-11-07-CTA, the Revised CTA Rules, this Court delineated the jurisdiction of the CTA en banc[31] and in Divisions.[32] Section 2, Rule 4 of the Revised CTA Rules recognizes the exclusive appellate jurisdiction of the CTA en bancto review by appeal the following decisions, resolutions, or orders of the CTA Division: SEC. 2. Cases within the jurisdiction of the Court en banc. - The Courten banc shall exercise exclusive appellate jurisdiction to review by appeal the following: (a) Decisions or resolutions on motions for reconsideration or new trial of the Court in Divisions in the exercise of its exclusive appellate jurisdiction over:
(1) Cases arising from administrative agencies - Bureau of Internal Revenue, Bureau of Customs, Department of Finance, Department of Trade and Industry, Department of Agriculture; (2) (3) Local tax cases decided by the Regional Trial Courts in the exercise of their original jurisdiction; and Tax collection cases decided by the Regional Trial Courts in the exercise of their original jurisdiction involving final and executory assessments for taxes, fees, charges and penalties, where the principal amount of taxes and penalties claimed is less than one million pesos;

xxxx (f) Decisions, resolutions or orders on motions for reconsideration or new trial of the Court in Division in the exercise of its exclusive original jurisdiction over cases involving criminal offenses arising from violations of the National Internal Revenue Code or the Tariff and Customs Code and other laws administered by the Bureau of Internal Revenue or Bureau of Customs. (g) Decisions, resolutions or order on motions for reconsideration or new trial of the Court in Division in the exercise of its exclusive appellate jurisdiction over criminal offenses mentioned in the preceding subparagraph; x x x. Although the filing of a petition for review with the CTA en banc from a decision, resolution, or order of the CTA Division, was newly made available to the CTA, such mode of appeal has long been available in Philippine courts of general jurisdiction. Hence, the Revised CTA Rules no longer elaborated on it but merely referred to existing rules of procedure on petitions for review and appeals, to wit: RULE 7 PROCEDURE IN THE COURT OF TAX APPEALS SEC. 1. Applicability of the Rules of the Court of Appeals. - The procedure in the Court en banc or in Divisions in original and in appealed cases shall be the same as those in petitions for review and appeals before the Court of Appeals pursuant to the applicable provisions of Rules 42, 43, 44 and 46 of the Rules of Court, except as otherwise provided for in these Rules. RULE 8 PROCEDURE IN CIVIL CASES xxxx SEC. 4. Where to appeal; mode of appeal. xxxx (b) An appeal from a decision or resolution of the Court in Division on a motion for reconsideration or new trial shall be taken to the Court by petition for review as provided in Rule 43 of the Rules of Court.

The Court en banc shall act on the appeal. xxxx RULE 9 PROCEDURE IN CRIMINAL CASES SEC. 1. Review of cases in the Court. - The review of criminal cases in the Court en banc or in Division shall be governed by the applicable provisions of Rule 124 of the Rules of Court. xxxx SEC. 9. Appeal; period to appeal. xxxx (b) An appeal to the Court en banc in criminal cases decided by the Court in Division shall be taken by filing a petition for review as provided in Rule 43 of the Rules of Court within fifteen days from receipt of a copy of the decision or resolution appealed from. The Court may, for good cause, extend the time for filing of the petition for review for an additional period not exceeding fifteen days. (Emphasis ours.) Given the foregoing, the petition for review to be filed with the CTA en banc as the mode for appealing a decision, resolution, or order of the CTA Division, under Section 18 of Republic Act No. 1125, as amended, is not a totally new remedy, unique to the CTA, with a special application or use therein. To the contrary, the CTA merely adopts the procedure for petitions for review and appeals long established and practiced in other Philippine courts. Accordingly, doctrines, principles, rules, and precedents laid down in jurisprudence by this Court as regards petitions for review and appeals in courts of general jurisdiction should likewise bind the CTA, and it cannot depart therefrom. General rule: The denial of a motion to quash is an interlocutory order which is not the proper subject of an appeal or a petition for certiorari. According to Section 1, Rule 41 of the Revised Rules of Court, governing appeals from the Regional Trial Courts (RTCs) to the Court of Appeals, an appeal may be taken only from a judgment or final order that completely disposes of the case or of a matter therein when declared by the Rules to be appealable. Said provision, thus, explicitly states that no appeal may be taken from an interlocutory order.[33] The Court distinguishes final judgments and orders from interlocutory orders in this wise: Section 2, Rule 41 of the Revised Rules of Court provides that "(o)nly final judgments or orders shall be subject to appeal." Interlocutory or incidental judgments or orders do not stay the progress of an action nor are they subject of appeal "until final judgment or order is rendered for one party or the other." The test to determine whether an order or judgment is interlocutory or final is this: "Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final". A court order is final in character if it puts an end to the particular matter resolved or settles definitely the matter therein disposed of, such that no further questions can come before the court except the execution of the order. The term "final" judgment or order signifies a judgment or an order which disposes of the cause as to all the parties, reserving no further questions or directions for future determination. The order or judgment may validly refer to the entire controversy or to some definite and separate branch thereof. "In the absence of a statutory definition, a final judgment, order or decree has been held to be x x x one that finally disposes of, adjudicates, or determines the rights, or some right or rights of the parties, either on the entire controversy or on some definite and separate branch thereof, and which concludes them until it is reversed or set aside." The central point to consider is, therefore, the effects of the order on the rights of the parties. A court order, on the other hand, is merely interlocutory in character if it is provisional and leaves substantial proceeding to be had in connection with its subject. The word "interlocutory" refers to "something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy."[34]

In other words, after a final order or judgment, the court should have nothing more to do in respect of the relative rights of the parties to the case. Conversely, "an order that does not finally dispose of the case and does not end the Court's task of adjudicating the parties' contentions in determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is interlocutory."[35] The rationale for barring the appeal of an interlocutory order was extensively discussed in Matute v. Court of Appeals, [36] thus: It is settled that an "interlocutory order or decree made in the progress of a case is always under the control of the court until the final decision of the suit, and may be modified or rescinded upon sufficient grounds shown at any time before final judgment . . ." Of similar import is the ruling of this Court declaring that "it is rudimentary that such (interlocutory) orders are subject to change in the discretion of the court." Moreover, one of the inherent powers of the court is "To amend and control its process and orders so as to make them conformable to law and justice. In the language of Chief Justice Moran, paraphrasing the ruling in Veluz vs. Justice of the Peace of Sariaya, "since judges are human, susceptible to mistakes, and are bound to administer justice in accordance with law, they are given the inherent power of amending their orders or judgments so as to make them conformable to law and justice, and they can do so before they lose their jurisdiction of the case, that is before the time to appeal has expired and no appeal has been perfected." And in the abovecited Veluz case, this Court held that "If the trial court should discover or be convinced that it had committed an error in its judgment, or had done an injustice, before the same has become final, it may, upon its own motion or upon a motion of the parties, correct such error in order to do justice between the parties. . . . It would seem to be the very height of absurdity to prohibit a trial judge from correcting an error, mistake, or injustice which is called to his attention before he has lost control of his judgment." Corollarily, it has also been held "that a judge of first instance is not legally prevented from revoking the interlocutory order of another judge in the very litigation subsequently assigned to him for judicial action." Another recognized reason of the law in permitting appeal only from a final order or judgment, and not from an interlocutory or incidental one, is to avoid multiplicity of appeals in a single action, which must necessarily suspend the hearing and decision on the merits of the case during the pendency of the appeal. If such appeal were allowed, the trial on the merits of the case would necessarily be delayed for a considerable length of time, and compel the adverse party to incur unnecessary expenses, for one of the parties may interpose as many appeals as incidental questions may be raised by him, and interlocutory orders rendered or issued by the lower court.[37] There is no dispute that a court order denying a motion to quash is interlocutory. The denial of the motion to quash means that the criminal information remains pending with the court, which must proceed with the trial to determine whether the accused is guilty of the crime charged therein. Equally settled is the rule that an order denying a motion to quash, being interlocutory, is not immediately appealable,[38] nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial.[39] The Court cannot agree in petitioner's contention that there would exist a procedural void following the denial of her Motion to Quash by the CTA First Division in its Resolutions dated 23 February 2006 and 11 May 2006, leaving her helpless. The remedy of an accused from the denial of his or her motion to quash has already been clearly laid down as follows: An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such order of denial may only be reviewed, in the ordinary course of law, by an appeal from the judgment, after trial. As stated in Collins vs. Wolfe, and reiterated in Mill vs. Yatco, the accused, after the denial of his motion to quash, should have proceeded with the trial of the case in the court below, and if final judgment is rendered against him, he could then appeal, and, upon such appeal, present the questions which he sought to be decided by the appellate court in a petition for certiorari. In Acharon vs. Purisima, the procedure was well defined, thus: "Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file

a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course of law."[40] Hence, the CTA en banc herein did not err in denying petitioner's Motion for Extension of Time to File Petition for Review, when such Petition for Review is the wrong remedy to assail an interlocutory order denying her Motion to Quash. While the general rule proscribes the appeal of an interlocutory order, there are also recognized exceptions to the same. The general rule is not absolute. Where special circumstances clearly demonstrate the inadequacy of an appeal, then the special civil action of certiorari or prohibition may exceptionally be allowed.[41] This Court recognizes that under certain situations, recourse to extraordinary legal remedies, such as a petition for certiorari, is considered proper to question the denial of a motion to quash (or any other interlocutory order) in the interest of a "more enlightened and substantial justice";[42] or to promote public welfare and public policy;[43] or when the cases "have attracted nationwide attention, making it essential to proceed with dispatch in the consideration thereof";[44] or when the order was rendered with grave abuse of discretion.[45] Certiorari is an appropriate remedy to assail an interlocutory order (1) when the tribunal issued such order without or in excess of jurisdiction or with grave abuse of discretion; and (2) when the assailed interlocutory order is patently erroneous, and the remedy of appeal would not afford adequate and expeditious relief.[46] Recourse to a petition for certiorari to assail an interlocutory order is now expressly recognized in the ultimate paragraph of Section 1, Rule 41 of the Revised Rules of Court on the subject of appeal, which states: In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. As to whether the CTA en banc, under its expanded jurisdiction in Republic Act No. 9282, has been granted jurisdiction over special civil actions for certiorari is not raised as an issue in the Petition at bar, thus, precluding the Court from making a definitive pronouncement thereon. However, even if such an issue is answered in the negative, it would not substantially affect the ruling of this Court herein, for a party whose motion to quash had been denied may still seek recourse, under exceptional and meritorious circumstances, via a special civil action for certiorari with this Court, refuting petitioner's assertion of a procedural void. The CTA First Division did not commit grave abuse of discretion in denying petitioner's Motion to Quash. Assuming that the CTA en banc, as an exception to the general rule, allowed and treated petitioner's Petition for Review in C.T.A. EB. CRIM. No. 001 as a special civil action for certiorari, [47] it would still be dismissible for lack of merit. An act of a court or tribunal may only be considered as committed in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment, which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. In this connection, it is only upon showing that the court acted without or in excess of jurisdiction or with grave abuse of discretion that an interlocutory order such as that involved in this case may be impugned. Be that as it may, it must be emphasized that this practice is applied only under certain exceptional circumstances to prevent unnecessary delay in the administration of justice and so as not to unduly burden the courts.[48] Certiorari is not available to correct errors of procedure or mistakes in the judge's findings and conclusions of law and fact. It is only in the presence of extraordinary circumstances evincing a patent disregard of justice and fair play where resort to a petition for certiorari is proper. A party must not be allowed to delay litigation by the sheer expediency of

filing a petition for certiorari under Rule 65 of the Revised Rules of Court based on scant allegations of grave abuse. [49] A writ of certiorari is not intended to correct every controversial interlocutory ruling: it is resorted to only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction. Its function is limited to keeping an inferior court within its jurisdiction and to relieve persons from arbitrary acts - acts which courts or judges have no power or authority in law to perform. It is not designed to correct erroneous findings and conclusions made by the courts.[50] The Petition for Review which petitioner intended to file before the CTA en banc relied on two grounds: (1) the lack of authority of Prosecuting Attorney Torrevillas to file the Information; and (2) the filing of the said Information in violation of petitioner's constitutional rights to due process and equal protection of the laws. Anent the first ground, petitioner argues that the Information was filed without the approval of the BIR Commissioner in violation of Section 220 of NIRC, as amended, which provides: SEC. 220. Form and Mode of Proceeding in Actions Arising under this Code. - Civil and criminal actions and proceedings instituted in behalf of the Government under the authority of this Code or other law enforced by the Bureau of Internal Revenue shall be brought in the name of the Government of the Philippines and shall be conducted by legal officers of the Bureau of Internal Revenue but no civil or criminal action for the recovery of taxes or the enforcement of any fine, penalty or forfeiture under this Code shall be filed in court without the approval of the Commissioner. Petitioner's argument must fail in light of BIR Commissioner Parayno's letter dated 19 May 2005 to DOJ Secretary Gonzales referring "for preliminary investigation and filing of an information in court if evidence so warrants," the findings of the BIR officers recommending the criminal prosecution of petitioner. In said letter, BIR Commissioner Parayno already gave his prior approval to the filing of an information in court should the DOJ, based on the evidence submitted, find probable cause against petitioner during the preliminary investigation. Section 220 of the NIRC, as amended, simply requires that the BIR Commissioner approve the institution of civil or criminal action against a tax law violator, but it does not describe in what form such approval must be given. In this case, BIR Commissioner Parayno's letter of 19 May 2005 already states his express approval of the filing of an information against petitioner and his signature need not appear on the Resolution of the State Prosecutor or the Information itself. Still on the purported lack of authority of Prosecution Attorney Torrevillas to file the Information, petitioner asserts that it is the City Prosecutor under the Quezon City Charter, who has the authority to investigate and prosecute offenses allegedly committed within the jurisdiction of Quezon City, such as petitioner's case. The Court is not persuaded. Under Republic Act No. 537, the Revised Charter of Quezon City, the City Prosecutor shall have the following duties relating to the investigation and prosecution of criminal offenses: SEC. 28. The City Attorney - His assistants - His duties. xxxx (g) He shall also have charge of the prosecution of all crimes, misdemeanors, and violations of city ordinances, in the Court of First Instance and the municipal courts of the city, and shall discharge all the duties in respect to the criminal prosecutions enjoined by law upon provincial fiscals. (h) He shall cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances and have the necessary information or complaints prepared or made against the persons accused. He or any of his assistants may conduct such investigations by taking oral evidence of reputable witnesses, and for this purpose may issue subpoena, summon witnesses to appear and testify under oath before him, and the attendance or evidence of an absent or recalcitrant witness may be enforced by application to the municipal court or the Court of First Instance. No witness summoned to testify under this section shall be under obligation to give any testimony which tend to incriminate himself.

Evident from the foregoing is that the City Prosecutor has the power to investigate crimes, misdemeanors, and violations of ordinances committed within the territorial jurisdiction of the city, and which can be prosecuted before the trial courts of the said city. The charge against petitioner, however, is already within the exclusive original jurisdiction of the CTA,[51] as the Information states that her gross underdeclaration resulted in an income tax deficiency of P1,395,116.24, excluding interest and penalties. The City Prosecutor does not have the authority to appear before the CTA, which is now of the same rank as the Court of Appeals. In contrast, the DOJ is the principal law agency of the Philippine government which shall be both its legal counsel and prosecution arm.[52] It has the power to investigate the commission of crimes, prosecute offenders and administer the probation and correction system.[53] Under the DOJ is the Office of the State Prosecutor whose functions are described as follows: Sec. 8. Office of the Chief State Prosecutor. - The Office of the Chief State Prosecutor shall have the following functions: (1) Assist the Secretary in the performance of powers and functions of the Department relative to its role as the prosecution arm of the government; (2) Implement the provisions of laws, executive orders and rules, and carry out the policies, plans, programs and projects of the Department relative to the investigation and prosecution of criminal cases; (3) Assist the Secretary in exercising supervision and control over the National Prosecution Service as constituted under P.D. No. 1275 and/or otherwise hereinafter provided; and (4) Perform such other functions as may be provided by law or assigned by the Secretary.[54] As explained by CTA First Division in its Resolution dated 11 May 2006: [T]he power or authority of the Chief State Prosecutor Jovencito Zuo, Jr. and his deputies in the Department of Justice to prosecute cases is national in scope; and the Special Prosecutor's authority to sign and file informations in court proceeds from the exercise of said person's authority to conduct preliminary investigations.[55] Moreover, there is nothing in the Revised Quezon City Charter which would suggest that the power of the City Prosecutor to investigate and prosecute crimes, misdemeanors, and violations of ordinances committed within the territorial jurisdiction of the city is to the exclusion of the State Prosecutors. In fact, the Office of the State Prosecutor exercises control and supervision over City Prosecutors under Executive Order No. 292, otherwise known as the Administrative Code of 1987. As regards petitioner's second ground in her intended Petition for Review with the CTAen banc, she asserts that she has been denied due process and equal protection of the laws when similar charges for violation of the NIRC, as amended, against Regina Encarnacion A. Velasquez (Velasquez) were dismissed by the DOJ in its Resolution dated 10 August 2005 in I.S. No. 2005-330 for the reason that Velasquez's tax liability was not yet fully determined when the charges were filed. The Court is unconvinced. First, a motion to quash should be based on a defect in the information which is evident on its face.[56] The same cannot be said herein. The Information against petitioner appears valid on its face; and that it was filed in violation of her constitutional rights to due process and equal protection of the laws is not evident on the face thereof. As pointed out by the CTA First Division in its 11 May 2006 Resolution, the more appropriate recourse petitioner should have taken, given the dismissal of similar charges against Velasquez, was to appeal the Resolution dated 21 October 2005 of the Office of the State Prosecutor recommending the filing of an information against her with the DOJ Secretary.[57] Second, petitioner cannot claim denial of due process when she was given the opportunity to file her affidavits and other pleadings and submit evidence before the DOJ during the preliminary investigation of her case and before the Information was filed against her. Due process is merely an opportunity to be heard. In addition, preliminary

investigation conducted by the DOJ is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to determine whether a crime has been committed and whether the respondent therein is probably guilty of the crime. It is not the occasion for the full and exhaustive display of the parties' evidence. Hence, if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties' evidence thus presented, he may terminate the proceedings and resolve the case.[58] Third, petitioner cannot likewise aver that she has been denied equal protection of the laws. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions, both as to the privileges conferred and liabilities enforced.[59] Petitioner was not able to duly establish to the satisfaction of this Court that she and Velasquez were indeed similarly situated, i.e., that they committed identical acts for which they were charged with the violation of the same provisions of the NIRC; and that they presented similar arguments and evidence in their defense - yet, they were treated differently. Furthermore, that the Prosecution Attorney dismissed what were supposedly similar charges against Velasquez did not compel Prosecution Attorney Torrevillas to rule the same way on the charges against petitioner. In People v. Dela Piedra,[60] this Court explained that: The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of "clear and intentional discrimination." Appellant has failed to show that, in charging appellant in court, that there was a "clear and intentional discrimination" on the part of the prosecuting officials. The discretion of who to prosecute depends on the prosecution's sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is that the prosecuting officers regularly performed their duties, and this presumption can be overcome only by proof to the contrary, not by mere speculation.Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguea, the guilty party in appellant's eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws. There is also common sense practicality in sustaining appellant's prosecution. While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime. Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district

attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown. (Emphasis ours.) In the case at bar, no evidence of a clear and intentional discrimination against petitioner was shown, whether by Prosecution Attorney Torrevillas in recommending the filing of Information against petitioner or by the CTA First Division in denying petitioner's Motion to Quash. The only basis for petitioner's claim of denial of equal protection of the laws was the dismissal of the charges against Velasquez while those against her were not. And lastly, the Resolutions of the CTA First Division dated 23 February 2006 and 11 May 2006 directly addressed the arguments raised by petitioner in her Motion to Quash and Motion for Reconsideration, respectively, and explained the reasons for the denial of both Motions. There is nothing to sustain a finding that these Resolutions were rendered capriciously, whimsically, or arbitrarily, as to constitute grave abuse of discretion amounting to lack or excess of jurisdiction. In sum, the CTA en banc did not err in denying petitioner's Motion for Extension of Time to File Petition for Review. Petitioner cannot file a Petition for Review with the CTA en banc to appeal the Resolution of the CTA First Division denying her Motion to Quash. The Resolution is interlocutory and, thus, unappealable. Even if her Petition for Review is to be treated as a petition for certiorari, it is dismissible for lack of merit. WHEREFORE, premises considered, the instant Petition for Review is herebyDENIED. Costs against petitioner. SO ORDERED. Ynares-Santiago, (Chairperson), Austria-Martinez, Corona, and Reyes, JJ., concur.

G.R. No. 162808

April 22, 2008

FELICIANO GALVANTE, petitioner, vs. HON. ORLANDO C. CASIMIRO, Deputy Ombudsman for the Military and Other Law Enforcement Offices, BIENVENIDO C. BLANCAFLOR, Director, DENNIS L. GARCIA, Graft Investigation and Prosecution Officer, SPO4 RAMIL AVENIDO, PO1 EDDIE DEGRAN, PO1 VALENTINO RUFANO, and PO1 FEDERICO BALOLOT,respondents. DECISION AUSTRIA-MARTINEZ, J.: Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the October 30, 2003 Resolution1 of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices - Office of the Ombudsman (Ombudsman) which dismissed for lack of probable cause the criminal complaint, docketed as OMB-P-C-02-0109-B, filed by Feliciano Galvante2 (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and PO1 Federico Balolot (private respondents) for arbitrary detention, illegal search and grave threats; and the January 20, 2004 Ombudsman Order3 which denied his motion for reconsideration. The facts are of record. In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private respondents confiscated from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine super .38 live ammunitions.4 The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999.5 Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information6 for Illegal Possession of Firearms and Ammunitions in Relation to Commission on Elections (Comelec) Resolution No. 3258, docketed as Criminal Case No. 5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur.

Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents an administrative case, docketed as Administrative Case No. IASOB-020007 for Grave Misconduct, before the Internal Affairs Service (IAS), Region XIII, Department of Interior and Local Government (DILG);7 and a criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary Detention, Illegal Search and Grave Threats, before the Ombudsman.8 In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated how, on May 14, 2001, private respondents aimed their long firearms at him, arbitrarily searched his vehicle and put him in detention, thus: 1. That sometime on May 14, 2001 I left my house at around 1:00 o'clock in the afternoon after having lunch for Sitio Cahi-an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired police Percival Plaza and inquire about the retirement procedure for policemen; 2. That upon arrival at the house of retired police Percival Plaza, together with Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who asked for a ride from the highway in going to Sitio Cahi-an, I immediately went down of the jeep but before I could call Mr. Plaza, four policemen in uniform blocked my way; 3. That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and PO1 Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Prov'l Mobile Group, all of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire [at] me, having heard the sound of the release of the safety lock; 4. That raising my arms, I heard [private respondent] PO1 Avenido saying, "ANG IMONG PUSIL, IHATAG" which means "Give me your firearm," to which I answered, "WALA MAN KO'Y PUSIL" translated as "I have no firearm," showing my waistline when I raised my T-shirt; 5. That my other companions on the jeep also went down and raised their arms and showed their waistline when the same policemen and a person in civilian attire holding an armalite also pointed their firearms to them to which Mr. Percival Plaza who came down from his house told them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's statements; 6. That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went near my owner type jeep and conducted a search. To which I asked them if they have any search warrant; 7. That after a while they saw my super .38 pistol under the floormat of my jeep and asked me of the MR of the firearm but due to fear that their long arms were still pointed to us, I searched my wallet and gave the asked [sic] document; 8. That immediately the policemen left me and my companions without saying anything bringing with them the firearm; 9. That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station where I saw a person in civilian attire with a revolver tucked on his waist, to which I asked the police officers including those who searched my jeep to apprehend him also; 10. That nobody among the policemen at the station made a move to apprehend the armed civilian person so I went to the office of Police Chief Rocacorba who immediately called the armed civilian to his office and when already inside his office, the disarming was done; 11. That after the disarming of the civilian I was put to jail with the said person by Police Chief Rocacorba and was released only at 4:00 o'clock in the afternoon of May 16, 2001 after posting a bailbond; 12. That I caused the execution of this document for the purpose of filing cases of Illegal Search, Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police Station; PO1 Ramil Avenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1 Eddie Degran.9 Petitioner also submitted the Joint Affidavit10 of his witnesses, Lorenzo Sanoria and Percival Plaza.

Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he interposed the following defenses: First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba who ordered the detention. Petitioner himself admitted this fact in his own Complaint-Affidavit;11 and Second, he denies searching petitioner's vehicle,12 but admits that even though he was not armed with a warrant, he searched the person of petitioner as the latter, in plain view, was committing a violation of Comelec Resolutions No. 3258 and No. 3328 by carrying a firearm in his person. Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit dated March 25, 2002, which contradicts the statements of private respondent Conde, viz: 1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among other things, that "we saw Feleciano "Nani" Galvante armed with a handgun/pistol tucked on his waist;" 2. that this statement is not accurate because the truth of the matter is that the said handgun was taken by SPO4 BENJAMIN CONDE, JR., who was acting as our team leader during the May 14, 2001 Elections, from the jeep of Mr. Galvante after searching the same; and 3. that we noticed the aforementioned discrepancy in our affidavit dated August 28, 2001 after we have already affixed our signatures thereon.13 Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman, absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining that private respondent Conde alone be prosecuted in both administrative and criminal cases.14 On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007, finding all private respondents guilty of grave misconduct but penalized them with suspension only. The IAS noted however that private respondents were merely being "[enthusiastic] in the conduct of the arrest in line of duty." 15 Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary Investigation and to Hold in Abeyance the Issuance of or Recall the Warrant of Arrest.16 The RTC granted the same in an Order17dated August 17, 2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a "Reinvestigation with Motion to Dismiss" dated November 22, 2001, recommending the dismissal of Criminal Case No. 5047 on the ground that "the action of the policemen who conducted the warrantless search in spite of the absence of any circumstances justifying the same intruded into the privacy of the accused and the security of his property."18 Officer-in-Charge Prosecutor II Victoriano Pag-ong approved said recommendation.19 The RTC granted the prosecution's motion to dismiss in an Order20 dated January 16, 2003. Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution Officer Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit: After a careful evaluation, the undersigned prosecutor finds no probable cause for any of the offenses charged against above-named respondents. The allegations of the complainant failed to establish the factual basis of the complaint, it appearing from the records that the incident stemmed from a valid warrantless arrest. The subsequent execution of an affidavit of desistance by the complainant rendered the complaint even more uncertain and subject to doubt, especially so since it merely exculpated some but not all of the respondents. These circumstances, coupled with the presumption of regularity in the performance of duty, negates any criminal liability on the part of the respondents. WHEREFORE, premises considered, it is hereby recommended that the above-captioned case be dismissed for lack of probable cause.21 (Emphasis supplied) Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for the Military Orlando C. Casimiro (Deputy Ombudsman) approved the October 30, 2003 Resolution.22

In his Motion for Reconsideration,23 petitioner called the attention of the Ombudsman to the earlier IAS Decision, the Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared the warrantless search conducted by private respondents illegal,24 which are contradicted by the October 30, 2003 Ombudsman Resolution declaring the warrantless search legal. The Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered "no new evidence or errors of law which would warrant the reversal or modification"25 of its October 30, 2003 Resolution. Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro, Director Blancaflor and Prosecutor Garcia (public respondents) the following acts of grave abuse of discretion: I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Resolution dated October 30, 2003, public respondents found that the incident upon which petitioner's criminal complaint was based stemmed from a valid warrantless arrest and dismissed petitioner's complaint despite the fact that: A. Petitioner has clearly shown that the search conducted by the private respondents was made without a valid warrant, nor does it fall under any of the instances of valid warrantless searches. B. Notwithstanding the absence of a valid warrant, petitioner was arrested and detained by the private respondents. II. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction when, in their Order dated January 20, 2004, public respondents denied the petitioner's motion for reconsideration in a capricious, whimsical, despotic and arbitrary manner.26 In its Memorandum,27 the Office of the Solicitor General argued that public respondents acted within the bounds of their discretion in dismissing OMB-P-C-02-0109-B given that private respondents committed no crime in searching petitioner and confiscating his firearm as the former were merely performing their duty of enforcing the law against illegal possession of firearms and the Comelec ban against the carrying of firearms outside of one's residence. Private respondent Conde filed a Comment28 and a Memorandum for himself.29 Private respondents Avenido, Degran, Rufano and Balolot filed their separate Letter-Comment dated June 25, 2004.30 The petition lacks merit. The Constitution vests in the Ombudsman the power to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.31 The Court respects the relative autonomy of the Ombudsman to investigate and prosecute, and refrains from interfering when the latter exercises such powers either directly or through the Deputy Ombudsman,32 except when the same is shown to be tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.33 Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when judgment rendered is not based on law and evidence but on caprice, whim and despotism.34 This does not obtain in the present case. It is noted that the criminal complaint which petitioner filed with the Ombudsman charges private respondents with warrantless search, arbitrary detention, and grave threats. The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two forms of searches: Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. In addition to the liability attaching to the offender for the commission of any other offense, the penalty ofarresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceedingP1,000.00 pesos shall be imposed upon any public officer or employee who shall

procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. Art. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. Petitioner did not allege any of the elements of the foregoing felonies in his Affidavit-Complaint; rather, he accused private respondents of conducting a search on his vehicle without being armed with a valid warrant. This situation, while lamentable, is not covered by Articles 129 and 130 of the RPC. The remedy of petitioner against the warrantless search conducted on his vehicle is civil,35 under Article 32, in relation to Article 221936 (6) and (10) of the Civil Code, which 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 (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; xxxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated. and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975.37 To avail of such remedies, petitioner may file against private respondents a complaint for damages with the regular courts38 or an administrative case with the PNP/DILG,39 as petitioner did in Administrative Case No. IASOB-020007, and not a criminal action with the Ombudsman. Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman against private respondents was therefore proper, although the reasons public respondents cited for dismissing the complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of his complaint.40 Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a groundless criminal complaint for illegal search which is not an offense under the RPC. Thus, the Court need not resolve the issue of whether or not public respondents erred in their finding on the validity of the search for that issue is completely hypothetical under the circumstance. The criminal complaint for abitrary detention was likewise properly dismissed by public respondents. To sustain a criminal charge for arbitrary detention, it must be shown that (a) the offender is a public officer or employee, (b) the offender detained the complainant, and (c) the detention is without legal grounds.41 The second element was not alleged by petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his Comment42and Memorandum,43 petitioner himself identified in his AffidavitComplaint that it was Police Chief Rocacorba who caused his detention. Nowhere in said affidavit did petitioner allege that private respondents effected his detention, or were in any other way involved in it.44 There was, therefore, no factual or legal basis to sustain the criminal charge for arbitrary detention against private respondents. Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out that the same is based merely on petitioner's bare allegation that private respondents aimed their firearms at him.45 Such bare allegation stands no chance against the well-entrenched rule applicable in this case, that public officers enjoy a presumption of regularity in the performance of their official function.46 The IAS itself observed that private respondents may have been carried away by their "enthusiasm in the conduct of the arrest in line of duty."47 Petitioner expressed the same view when, in his Affidavit of Desistance, he

accepted that private respondents may have been merely following orders when they pointed their long firearms at him. All said, public respondents did not act with grave abuse of discretion in dismissing the criminal complaint against private respondents. WHEREFORE, the petition is DENIED. No costs. SO ORDERED. Ynares-Santiago, Chairperson, Chico-Nazario, Nachura, Reyes, JJ., concur.

G.R. No. 103524 April 15, 1992 CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO, JOSE LEUTERIO, ET AL., petitioners, vs. HON. FRANKLIN N. DRILON, in his capacity as Executive Secretary, HON. GUILLERMO CARAGUE, in his capacity as Secretary of Department of Budget and Management, and HON. ROSALINA CAJUCOM, in her capacity as National Treasurer, respondents. A.M. No. 91-8-225-CA April 15, 1992 REQUEST OF RETIRED JUSTICES MANUEL P. BARCELONA, JUAN P. ENRIQUEZ, JUAN O. REYES, JR. and GUARDSON R. LOOD FOR READJUSTMENT OF THEIR MONTHLY PENSION. GUTIERREZ, JR., J.: The issue in this petition is the constitutionality of the veto by the President of certain provisions in the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired Justices of the Supreme Court and the Court of Appeals. The petitioners are retired Justices of the Supreme Court and Court of Appeals who are currently receiving monthly pensions under Republic Act No. 910 as amended by Republic Act No. 1797. They filed the instant petition on their own behalf and in representation of all other retired Justices of the Supreme Court and the Court of Appeals similarly situated. Named respondents are Hon. Franklin Drilon the Executive Secretary, Hon. Guillermo Carague as Secretary of the Department of Budget and Management, and Hon. Rosalinda Cajucom, the Treasurer of the Philippines. The respondents are sued in their official capacities, being officials of the Executive Department involved in the implementation of the release of funds appropriated in the Annual Appropriations Law. We treat the Comments of the Office of the Solicitor General (OSG) as an Answer and decide the petition on its merits. The factual backdrop of this case is as follows: On June 20, 1953, Republic Act No, 910 was enacted to provide the retirement pensions of Justices of the Supreme Court and of the Court of Appeals who have rendered at least twenty (20) years service either in the Judiciary or in any other branch of the Government or in both, having attained the age of seventy (70) years or who resign by reason of incapacity to discharge the duties of the office. The retired Justice shall receive during the residue of his natural life the salary which he was receiving at the time of his retirement or resignation. Republic Act No. 910 was amended by Republic Act No. 1797 (approved on June 21, 1957) which provided that: Sec. 3-A. In case the salary of Justices of the Supreme Court or of the Court of Appeals is increased or decreased, such increased or decreased salary shall, for purposes of this Act, be deemed to be the salary or the retirement pension which a Justice who as of June twelve, nineteen hundred fifty-four had ceased to be such to accept another position in the Government or who retired was receiving at the time of his cessation in office. Provided, that any benefits that have already accrued prior to such increase or decrease shall not be affected thereby. Identical retirement benefits were also given to the members of the Constitutional Commissions under Republic Act No. 1568, as amended by Republic Act No. 3595. On November 12, 1974, on the occasion of the Armed Forces Loyalty Day, President Marcos signed Presidential Decree 578 which extended similar retirement benefits to the members of the Armed Forces giving them also the automatic readjustment features of Republic Act No. 1797 and Republic Act No. 3595.

Two months later, however, President Marcos issued Presidential Decree 644 on January 25, 1975 repealing Section 3-A of Republic Act No. 1797 and Republic Act No. 3595 (amending Republic Act No. 1568 and Presidential Decree No. 578) which authorized the adjustment of the pension of the retired Justices of the Supreme Court, Court of Appeals, Chairman and members of the Constitutional Commissions and the officers and enlisted members of the Armed Forces to the prevailing rates of salaries. Significantly, under Presidential Decree 1638 the automatic readjustment of the retirement pension of officers and enlisted men was subsequently restored by President Marcos. A later decree Presidential Decree 1909 was also issued providing for the automatic readjustment of the pensions of members of the Armed Forces who have retired prior to September 10, 1979. While the adjustment of the retirement pensions for members of the Armed Forces who number in the tens of thousands was restored, that of the retired Justices of the Supreme Court and Court of Appeals who are only a handful and fairly advanced in years, was not. Realizing the unfairness of the discrimination against the members of the Judiciary and the Constitutional Commissions, Congress approved in 1990 a bill for the reenactment of the repealed provisions of Republic Act No. 1797 and Republic Act No. 3595. Congress was under the impression that Presidential Decree 644 became law after it was published in the Official Gazette on April 7, 1977. In the explanatory note of House Bill No. 16297 and Senate Bill No. 740, the legislature saw the need to reenact Republic Act Nos. 1797 and 3595 to restore said retirement pensions and privileges of the retired Justices and members of the Constitutional Commissions, in order to assure those serving in the Supreme Court, Court of Appeals and Constitutional Commissions adequate old age pensions even during the time when the purchasing power of the peso has been diminished substantially by worldwide recession or inflation. This is underscored by the fact that the petitioner retired Chief Justice, a retired Associate Justice of the Supreme Court and the retired Presiding Justice are presently receiving monthly pensions of P3,333.33, P2,666.66 and P2,333.33 respectively. President Aquino, however vetoed House Bill No. 16297 on July 11, 1990 on the ground that according to her "it would erode the very foundation of the Government's collective effort to adhere faithfully to and enforce strictly the policy on standardization of compensation as articulated in Republic Act No. 6758 known as Compensation and Position Classification Act of 1989." She further said that "the Government should not grant distinct privileges to select group of officials whose retirement benefits under existing laws already enjoy preferential treatment over those of the vast majority of our civil service servants." Prior to the instant petition, however, Retired Court of Appeals Justices Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes, Jr. and Guardson R. Lood filed a letter/petition dated April 22, 1991 which we treated as Administrative Matter No. 91-8-225-CA. The petitioners asked this Court far a readjustment of their monthly pensions in accordance with Republic Act No. 1797. They reasoned out that Presidential Decree 644 repealing Republic Act No. 1797 did not become law as there was no valid publication pursuant to Taada v. Tuvera, (136 SCRA 27 [1985]) and 146 SCRA 446 [1986]). Presidential Decree 644 promulgated on January 24, 1975 appeared for the first time only in the supplemental issue of the Official Gazette, (Vol. 74, No. 14) purportedly dated April 4, 1977 but published only on September 5, 1983. Since Presidential Decree 644 has no binding force and effect of law, it therefore did not repeal Republic Act No. 1797. In a Resolution dated November 28, 1991 the Court acted favorably on the request. The dispositive portion reads as follows: WHEREFORE, the requests of retired Justices Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes and Guardson Lood are GRANTED. It is hereby AUTHORIZED that their monthly pensions be adjusted and paid on the basis of RA 1797 effective January 1, 1991 without prejudice to the payment on their pension differentials corresponding to the previous years upon the availability of funds for the purpose. Pursuant to the above resolution, Congress included in the General Appropriations Bill for Fiscal Year 1992 certain appropriations for the Judiciary intended for the payment of the adjusted pension rates due the retired Justices of the Supreme Court and Court of Appeals. The pertinent provisions in House Bill No. 34925 are as follows:

XXVIII. THE JUDICIARY A. Supreme Court of the Philippines and the Lower Courts. For general administration, administration of personnel benefits, supervision of courts, adjudication of constitutional questions appealed and other cases, operation and maintenance of the Judicial and Bar Council in the Supreme Court, and the adjudication of regional court cases, metropolitan court cases, municipal trial court cases in Cities, municipal circuit court cases, municipal, court cases, Shari'a district court cases and Shari'a circuit court cases as indicated hereunder P2,095,651,000 xxx xxx xxx Special Provisions. 1. Augmentation of any Item in the Court's Appropriations. Any savings in the appropriation for the Supreme Court and the Lower Courts may be utilized by the Chief Justice of the Supreme Court to augment any item of the Court's appropriations for: (a) printing of decisions and publications of Philippine Reports; b) commutable terminal leaves of Justices and other personnel of the Supreme Court and any payment of adjusted pension rates to retired Justices entitled thereto pursuant to Administrative Matter No. 91-8-225-CA; (c) repair, maintenance, improvement, and other operating expenses of the courts' books and periodicals; (d) purchase, maintenance and improvement of printing equipment; e) necessary expenses for the employment of temporary employees, contractual and casual employees, for judicial administration; f) maintenance and improvement of the Court's Electronic Data Processing; (g) extraordinary expenses of the Chief Justice, attendance in international conferences and conduct of training programs; (h) commutable transportation and representation allowances and fringe benefits for Justices, Clerks of Court, Court Administrator, Chief of Offices and other Court personnel in accordance with the rates prescribed by law; and (i) compensation of attorneys-de-oficio; PROVIDED, that as mandated by LOI No. 489 any increases in salary and allowances shall be subject to the usual procedures and policies as provided for under P.D. No. 985 and other pertinent laws. (page 1071, General Appropriations Act, FY 1992; Emphasis supplied) xxx xxx xxx 4. Payment of Adjusted Pension Rates to Retired Justices. The amount herein appropriated for payment of pensions to retired judges and justices shall include the payment of pensions at the adjusted rates to retired justices of the Supreme Court entitled thereto pursuant to the ruling of the Court in Administrative Matter No. 91-8-225-C.A. (page 1071, General Appropriations Act, FY 1992). xxx xxx xxx Activities and Purposes 1. General Administration and Support Services. a. General administrative Services P 43,515,000 b. Payment of retirement gratuity of national goverment officials and employees P 206,717,000 c. Payment of terminal leave benefits to officials and employees antitled thereto P 55,316,000 d. Payment of pension totired jude and justice entitled thereto P 22,500,000 (page 1071, General Appropriations Act, FY 1992) C. COURT OF APPEALS For general administration, administration of personnel benefit, benefits and the

adjudication of appealed and other cases as indicated hereunder P114,615,000 Special Provisions. 1. Authority to Use Savings. Subject to the approval of the Chief Justice of the Supreme Court in accordance with Section 25(5), Article VI of the Constitution of the Republic of the Philippines, the Presiding Justice may be authorized to use any savings in any item of the appropriation for the Court of Appeals for purposes of: (1) improving its compound and facilities; and (2) for augmenting any deficiency in any item of its appropriation including its extraordinary expenses and payment of adjusted pension rates to retired justices entitled thereto pursuant to Administrative Matter No. 91-8-225-C.A. (page 1079, General Appropriations Act, FY 1992; Emphasis supplied) 2. Payment of adjustment Pension Rates to Retired Justices. The amount herein appropriated for payment of pensions to retired judges and justices shall include the payment of pensions at the adjusted rates to retired justices of the Court of Appeals entitled thereto pursuant to the Ruling of the Supreme Court in Administrative Matter No. 91-6-225C.A. (page 1079 General Appropriations Act, FY 1992). XL. GENERAL FUND ADJUSTMENT For general fund adjustment for operational and special requirements as indicated hereunder P500,000,000 xxx xxx xxx Special Provisions 1. Use of the Fund. This fund shall be used for: xxx xxx xxx 1.3. Authorized overdrafts and/or valid unbooked obligations, including the payment of back salaries and related personnel benefits arising from decision of competent authorityincluding the Supreme Court decision in Administrative Matter No. 91-8-225-C.A. and COA decision in No. 1704." (page 11649 Gen. Appropriations Act, FY 1992; Emphasis supplied) On January 15, 1992, the President vetoed the underlined portions of Section 1 and the entire Section 4 the Special Provisions for the Supreme Court of the Philippines and the Lower Courts (General Appropriations Act, FY 1992, page 1071) and the underlined portions of Section 1 and the entire Section 2, of the Special Provisions for the Court of Appeals (page 1079) and the underlined portions of Section 1.3 of Article XLV of the Special Provisions of the General Fund Adjustments (page 1164, General Appropriations Act, FY 1992). The reason given for the veto of said provisions is that "the resolution of this Honorable Court in Administrative Matter No. 91-8-225-CA pursuant to which the foregoing appropriations for the payment of the retired Justices of the Supreme Court and the Court of Appeals have been enacted effectively nullified the veto of the President on House Bill No. 16297, the bill which provided for the automatic increase in the retirement pensions of the Justices of the Supreme Court and the Court of Appeals and chairmen of the Constitutional Commissions by re-enacting Republic Act No. 1797 and Republic Act No. 3595. The President's veto of the aforesaid provisions was further justified by reiterating the earlier reasons for vetoing House Bill No. 16297: "they would erode the very foundation of our collective effort to adhere faithfully to and enforce strictly the policy and standardization of compensation. We should not permit the grant of distinct privileges to select group of officials whose retirement pensions under existing laws already enjoy preferential treatment over those of the vast majority of our civil servants." Hence, the instant petition filed by the petitioners with the assertions that: 1) The subject veto is not an item veto;

2) The veto by the Executive is violative of the doctrine of separation of powers; 3) The veto deprives the retired Justices of their rights to the pensions due them; 4) The questioned veto impairs the Fiscal Autonomy guaranteed by the Constitution. Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to the attention of this Court that the veto constitutes no legal obstacle to the continued payment of the adjusted pensions pursuant to the Court's resolution. On February 14, 1992, the Court resolved to consolidate Administrative Matter No. 91-8-225-CA with G.R. No. 103524. The petitioners' contentions are well-taken. I It cannot be overstressed that in a constitutional government such as ours, the rule of law must prevail. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons including the highest official of this land must defer. From this cardinal postulate, it follows that the three branches of government must discharge their respective functions within the limits of authority conferred by the Constitution. Under the principle of separation of powers, neither Congress, the President nor the Judiciary may encroach on fields allocated to the other branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies. The Constitution expressly confers or the judiciary the power to maintain inviolate what it decrees. As the guardian of the Constitution we cannot shirk the duty of seeing to it that the officers in each branch of government do not go beyond their constitutionally allocated boundaries and that the entire Government itself or any of its branches does not violate the basic liberties of the people. The essence of this judicial duty was emphatically explained by Justice Laurel in the leading case of Angara v. Electoral Commission, (63 Phil. 139 [1936]) to wit: The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries it does not assert any superiority over the other department, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. (Emphasis supplied) The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally vested power. But even as the Constitution grants the power, it also provides limitations to its exercise. The veto power is not absolute. The pertinent provision of the Constitution reads: The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill but the veto shall not affect the item or items to which he does not object. (Section 27(2), Article VI, Constitution) The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of government and it can not veto the entire bill even if it may contain objectionable features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the "item veto power" to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure.

The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191 SCRA 452, 464 [1990]) We distinguish an item from a provision in the following manner: The terms item and provision in budgetary legislation and practice are concededly different. An itemin a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill (Bengzon,supra, at 916.) It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E. 2d 120, 124, 125, etc., 176 Va. 281) The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct. 252, 81 L. Ed, 312) declared "that an"tem" of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill." (id. at page 465) We regret having to state that misimpressions or unfortunately wrong advice must have been the basis of the disputed veto. The general fund adjustment is an item which appropriates P500,000,000.00 to enable the Government to meet certain unavoidable obligations which may have been inadequately funded by the specific items for the different branches, departments, bureaus, agencies, and offices of the government. The President did not veto this item. What were vetoed were methods or systems placed by Congress to insure that permanent and continuing obligations to certain officials would be paid when they fell due. An examination of the entire sections and the underlined portions of the law which were vetoed will readily show that portions of the item have been chopped up into vetoed and unvetoed parts. Less than all of an item has been vetoed. Moreover, the vetoed portions are not items. They are provisions. Thus, the augmentation of specific appropriations found inadequate to pay retirement payments, by transferring savings from other items of appropriation is a provision and not an item. It gives power to the Chief Justice to transfer funds from one item to another. There is no specific appropriation of money involved. In the same manner, the provision which states that in compliance with decisions of the Supreme Court and the Commission on Audit, funds still undetermined in amount may be drawn from the general fund adjustment is not an item. It is the "general fund adjustment" itself which is the item. This was not touched. It was not vetoed. More ironic is the fact that misinformation led the Executive to believe that the items in the 1992 Appropriations Act were being vetoed when, in fact, the veto struck something else. What were really vetoed are: (1) Republic Act No. 1797 enacted as early as June 21, 1957; and (2) The Resolution of the Supreme Court dated November 28, 1991 in Administrative Matter No. 91-8-225CA. We need no lengthy justifications or citations of authorities to declare that no President may veto the provisions of a law enacted thirty-five (35) years before his or her term of office. Neither may the President set aside or reverse a final and executory judgment of this Court through the exercise of the veto power. A few background facts may be reiterated to fully explain the unhappy situation. Republic Act No. 1797 provided for the adjustment of pensions of retired Justices which privilege was extended to retired members of Constitutional Commissions by Republic Act No. 3595. On January 25, 1975, President Marcos issued Presidential Decree No. 644 which repealed Republic Acts 1797 and 3595. Subsequently, automatic readjustment of pensions for retired Armed Forces officers and men was surreptitiously restored through Presidential Decree Nos. 1638 and 1909. It was the impression that Presidential Decree No. 644 had reduced the pensions of Justices and Constitutional Commissioners which led Congress to restore the repealed provisions through House Bill

No. 16297 in 1990. When her finance and budget advisers gave the wrong information that the questioned provisions in the 1992 General Appropriations Act were simply an attempt to overcome her earlier 1990 veto, she issued the veto now challenged in this petition. It turns out, however, that P.D. No. 644 never became valid law. If P.D. No. 644 was not law, it follows that Rep. Act No. 1797 was not repealed and continues to be effective up to the present. In the same way that it was enforced from 1951 to 1975, so should it be enforced today. House Bill No. 16297 was superfluous as it tried to restore benefits which were never taken away validly. The veto of House Bill No. 16297 in 1991 did not also produce any effect. Both were based on erroneous and non-existent premises. From the foregoing discussion, it can be seen that when the President vetoed certain provisions of the 1992 General Appropriations Act, she was actually vetoing Republic Act No. 1797 which, of course, is beyond her power to accomplish. Presidential Decree No. 644 which purportedly repealed Republic Act No. 1717 never achieved that purpose because it was not properly published. It never became a law. The case of Tada v. Tuvera (134 SCRA 27 [1985]and 146 SCRA 446 [1986]) specifically requires that "all laws shall immediately upon their approval or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code." This was the Court's answer to the petition of Senator Lorenzo Taada and other opposition leaders who challenged the validity of Marcos' decrees which, while never published, were being enforced. Secret decrees are anathema in a free society. In support of their request, the petitioners in Administrative Matter No. 91-9-225-CA secured certification from Director Lucita C. Sanchez of the National Printing Office that the April 4, 1977 Supplement to the Official Gazette was published only on September 5, 1983 and officially released on September 29, 1983. On the issue of whether or not Presidential Decree 644 became law, the Court has already categorically spoken in a definitive ruling on the matter, to wit: xxx xxx xxx PD 644 was promulgated by President Marcos on January 24, 1975, but was not immediately or soon thereafter published although preceding and subsequent decrees were duly published in the Official Gazette. It now appears that it was intended as a secret decree "NOT FOR PUBLICATION" as the notation on the face of the original copy thereof plainly indicates (Annex B). It is also clear that the decree was published in the back-dated Supplement only after it was challenged in the Taada case as among the presidential decrees that had not become effective for lack of the required publication. The petition was filed on May 7, 1983, four months before the actual publication of the decree. It took more than eight years to publish the decree after its promulgation in 1975. Moreover, the publication was made in bad faith insofar as it purported to show that it was done in 1977 when the now demonstrated fact is that the April 4, 1977 supplement was actually published and released only in September 1983. The belated publication was obviously intended to refute the petitioner's claim in the Taada case and to support the Solicitor General's submission that the petition had become moot and academic. xxx xxx xxx We agree that PD 644 never became a law because it was not validly published and that, consequently, it did not have the effect of repealing RA 1797. The requesting Justices (including Justice Lood, whose request for the upgrading of his pension was denied on January 15, 1991) are therefore entitled to be paid their monthly pensions on the basis of the latter measure, which remains unchanged to date. The Supreme Court has spoken and it has done so with finality, logically and rightly so as to assure stability in legal relations, and avoid confusion. (see Ver v. Quetullo, 163 SCRA 80 [1988]) Like other decisions of this Court, the ruling and principles set out in the Court resolution constitute binding precedent. (Bulig-Bulig

Kita Kamaganak Association, et al. v. Sulpicio Lines, Inc., Regional Trial Court, etc., G.R. 847500 16 May 1989, En Banc, Minute Resolution) The challenged veto has far-reaching implications which the Court can not countenance as they undermine the principle of separation of powers. The Executive has no authority to set aside and overrule a decision of the Supreme Court. We must emphasize that the Supreme Court did not enact Rep. Act No. 1797. It is not within its powers to pass laws in the first place. Its duty is confined to interpreting or defining what the law is and whether or not it violates a provision of the Constitution. As early as 1953, Congress passed a law providing for retirement pensions to retired Justices of the Supreme Court and the Court of Appeals. This law was amended by Republic Act 1797 in 1957. Funds necessary to pay the retirement pensions under these statutes are deemed automatically appropriated every year. Thus, Congress included in the General Appropriations Act of 1992, provisions identifying funds and savings which may be used to pay the adjusted pensions pursuant to the Supreme Court Resolution. As long as retirement laws remain in the statute book, there is an existing obligation on the part of the government to pay the adjusted pension rate pursuant to RA 1797 and AM-91-8-225-CA. Neither may the veto power of the President be exercised as a means of repealing RA 1797. This is arrogating unto the Presidency legislative powers which are beyond its authority. The President has no power to enact or amend statutes promulgated by her predecessors much less to repeal existing laws. The President's power is merely to execute the laws as passed by Congress. II There is a matter of greater consequence arising from this petition. The attempt to use the veto power to set aside a Resolution of this Court and to deprive retirees of benefits given them by Rep. Act No. 1797 trenches upon the constitutional grant of fiscal autonomy to the Judiciary. Sec. 3, Art. VIII mandates that: Sec. 3 The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. We can not overstress the importance of and the need for an independent judiciary. The Court has on various past occasions explained the significance of judicial independence. In the case of De la Llana v. Alba (112 SCRA 294 [1982]), it ruled: It is a cardinal rule of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or implicitly certain powers. These they exercise not for their own benefit but for the body politic. . . . A public office is a public trust. That is more than a moral adjuration. It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. . . . It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. (At pp. 338-339) The exercise of the veto power in this case may be traced back to the efforts of the Department of Budget and Management (DBM) to ignore or overlook the plain mandate of the Constitution on fiscal autonomy. The OSG Comment reflects the same truncated view of the provision. We have repeatedly in the past few years called the attention of DBM that not only does it allocate less than one percent (1%) of the national budget annually for the 22,769 Justices, Judges, and court personnel

all over the country but it also examines with a fine-toothed come how we spend the funds appropriated by Congress based on DBM recommendations. The gist of our position papers and arguments before Congress is as follows: The DBM requires the Supreme Court, with Constitutional Commissions, and the Ombudsman to submit budget proposals in accordance with parameters it establishes. DBM evaluates the proposals, asks each agency to defend its proposals during DBM budget hearings, submits its own version of the proposals to Congress without informing the agency of major alterations and mutilations inflicted on their proposals, and expects each agency to defend in Congress proposals not of the agency's making. After the general appropriations bill is passed by Congress and signed into law by the President, the tight and officious control by DBM continues. For the release of appropriated funds, the Judiciary, Constitutional Commissions, and Ombudsman are instructed through "guidelines", how to prepare Work and Financial Plans and requests for monthly allotments. The DBM evaluates and approves these plans and requests and on the basis of its approval authorizes the release of allotments with corresponding notices of cash allocation. These notices specify the maximum withdrawals each month which the Supreme Court, the Commissions and the Ombudsman may make from the servicing government bank. The above agencies are also required to submit to DBM monthly, quarterly and year-end budget accountability reports to indicate their performance, physical and financial operations and income, The DBM reserves to itself the power to review the accountability reports and when importuned for needed funds, to release additional allotments to the agency. Since DBM always prunes the budget proposals to below subsistence levels and since emergency situations usually occur during the fiscal year, the Chief Justices, Chairmen of the Commissions, and Ombudsman are compelled to make pilgrimages to DBM for additional funds to tide their respective agencies over the emergency. What is fiscal autonomy? As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee on full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence end flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision. In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary

must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed. Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court upheld the authority of the President and other key officials to augment any item or any appropriation from savings in the interest of expediency and efficiency. The Court stated that: There should be no question, therefore, that statutory authority has, in fact, been granted. And once given, the heads of the different branches of the Government and those of the Constitutional Commissions are afforded considerable flexibility in the use of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way endangered because the transfer is made within a department (or branch of government) and not from one department (branch) to another. The Constitution, particularly Article VI, Section 25(5) also provides: Sec. 25. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. In the instant case, the vetoed provisions which relate to the use of savings for augmenting items for the payment of the pension differentials, among others, are clearly in consonance with the abovestated pronouncements of the Court. The veto impairs the power of the Chief Justice to augment other items in the Judiciary's appropriation, in contravention of the constitutional provision on "fiscal autonomy." III Finally, it can not be denied that the retired Justices have a vested right to the accrued pensions due them pursuant to RA 1797. The right to a public pension is of statutory origin and statutes dealing with pensions have been enacted by practically all the states in the United States (State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in most countries of the world. Statutory provisions for the support of Judges or Justices on retirement are founded on services rendered to the state. Where a judge has complied with the statutory prerequisite for retirement with pay, his right to retire and draw salary becomes vested and may not, thereafter, be revoked or impaired. (Gay v. Whitehurst, 44 So ad 430) Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of which is to entice competent men and women to enter the government service and to permit them to retire therefrom with relative security, not only those who have retained their vigor but, more so, those who have been incapacitated by illness or accident. (In re: Amount of the Monthly Pension of Judges and Justices Starting From the Sixth Year of their Retirement and After the Expiration of the Initial Five-year Period of Retirement, (190 SCRA 315 [1990]). As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of the Supreme Court and Court of Appeals. This was amended by RA 1797 which provided for an automatic adjustment of the pension rates. Through the years, laws were enacted and jurisprudence expounded to afford retirees better benefits. P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing that the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court and Court of Appeals were entitled was to be computed on the basis of the highest monthly aggregate of transportation, living and representation allowances each Justice was receiving on the date of his resignation. The Supreme Court in a resolution dated October 4, 1990, stated that this law on gratuities covers the monthly pensions of retired Judges and Justices which should include the highest monthly aggregate of transportation, living and representation allowances the retiree was receiving on the date of retirement. (In Re: Amount of the Monthly Pension of Judges and Justices, supra)

The rationale behind the veto which implies that Justices and Constitutional officers are unduly favored is, again, a misimpression. Immediately, we can state that retired Armed Forces officers and enlisted men number in the tens of thousands while retired Justices are so few they can be immediately identified. Justices retire at age 70 while military men retire at a much younger age some retired Generals left the military at age 50 or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to both groups. Any ideas arising from an alleged violation of the equal protection clause should first be directed to retirees in the military or civil service where the reason for the retirement provision is not based on indubitable and constitutionally sanctioned grounds, not to a handful of retired Justices whose retirement pensions are founded on constitutional reasons. The provisions regarding retirement pensions of justices arise from the package of protections given by the Constitution to guarantee and preserve the independence of the Judiciary. The Constitution expressly vests the power of judicial review in this Court. Any institution given the power to declare, in proper cases, that act of both the President and Congress are unconstitutional needs a high degree of independence in the exercise of its functions. Our jurisdiction may not be reduced by Congress. Neither may it be increased without our advice and concurrence. Justices may not be removed until they reach age 70 except through impeachment. All courts and court personnel are under the administrative supervision of the Supreme Court. The President may not appoint any Judge or Justice unless he or she has been nominated by the Judicial and Bar Council which, in turn, is under the Supreme Court's supervision. Our salaries may not be decreased during our continuance in office. We cannot be designated to any agency performing administrative or quasi-judicial functions. We are specifically given fiscal autonomy. The Judiciary is not only independent of, but also co-equal and coordinate with the Executive and Legislative Departments. (Article VIII and section 30, Article VI, Constitution) Any argument which seeks to remove special privileges given by law to former Justices of this Court and the ground that there should be no "grant of distinct privileges" or "preferential treatment" to retired Justices ignores these provisions of the Constitution and, in effect, asks that these Constitutional provisions on special protections for the Judiciary be repealed. The integrity of our entire constitutional system is premised to a large extent on the independence of the Judiciary. All these provisions are intended to preserve that independence. So are the laws on retirement benefits of Justices. One last point. The Office of the Solicitor General argues that: . . . Moreover, by granting these benefits to retired Justices implies that public funds, raised from taxes on other citizens, will be paid off to select individuals who are already leading private lives and have ceased performing public service. Said the United States Supreme Court, speaking through Mr. Justice Miller: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow upon favored individuals . . . is nonetheless a robbery because it is done under the forms of law . . ." (Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16) The above arguments are not only specious, impolite and offensive; they certainly are unbecoming of an office whose top officials are supposed to be, under their charter, learned in the law. Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L. Reyes, Cecilia Muoz Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired Justices of the Supreme Court and the Court of Appeals may no longer be in the active service. Still, the Solicitor General and all lawyers under him who represent the government before the two courts and whose predecessors themselves appeared before these retirees, should show some continuing esteem and good manners toward these Justices who are now in the evening of their years. All that the retirees ask is to be given the benefits granted by law. To characterize them as engaging in "robbery" is intemperate, abrasive, and disrespectful more so because the argument is unfounded. If the Comment is characteristic of OSG pleadings today, then we are sorry to state that the then quality of research in that institution has severely deteriorated.

In the first place, the citation of the case is, wrong. The title is not LAW Association v. Topeka but Citizen's Savings and Loan Association of Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involved the validity of a statute authorizing cities and counties to issue bonds for the purpose of building bridges, waterpower, and other public works to aid private railroads improve their services. The law was declared void on the ground that the right of a municipality to impose a tax cannot be used for private interests. The case was decided in 1874. The world has turned over more than 40,000 times since that ancient period. Public use is now equated with public interest. Public money may now be used for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform where only private persons are the immediate beneficiaries. What was "robbery" in 1874 is now called "social justice." There is nothing about retirement benefits in the cited case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia which could not even spell "loan" correctly. Good lawyers are expected to go to primary sources and to use only relevant citations. The Court has been deluged with letters and petitions by former colleagues in the Judiciary requesting adjustments in their pensions just so they would be able to cope with the everyday living expenses not to mention the high cost of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991); Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to the public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. That generosity is the least he should expect now that his work is done and his youth is gone. Even as he feels the weariness in his bones and glimpses the approach of the lengthening shadows, he should be able to luxuriate in the thought that he did his task well, and was rewarded for it. For as long as these retired Justices are entitled under laws which continue to be effective, the government can not deprive them of their vested right to the payment of their pensions. WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as illegal and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are declared valid and subsisting. The respondents are ordered to automatically and regularly release pursuant to the grant of fiscal autonomy the funds appropriated for the subject pensions as well as the other appropriations for the Judiciary. The resolution in Administrative Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be implemented as promulgated. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur. Bellosillo, J., is on leave.