L. ACCOUNTABILITY OF PUBLIC OFFICERS 1. ABAKADA GURO PARTY LIST V.

PURISIMA
ABAKADA Guro Party List v PurisimaG.R. No. 166715, August 14, 2008 FACTS: This petition for prohibition seeks to prevent respondents from implementing and enforcing Republic Act (RA) 9335 (Attrition Actof 2005).RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and theBureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets byproviding a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a RevenuePerformance Evaluation Board (Board). It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status. Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reformlegislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials andemployees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of suchrewards. Petitioners also assail the creation of a congressional oversight committee on the ground that it violates the doctrineof separation of powers, for it permits legislative participation in the implementation and enforcement of the law. ISSUE: WON the joint congressional committee is valid and constitutional HELD: No. It is unconstitutional.In the case of Macalintal, in the discussion of J. Puno, the power of oversight embraces all activities undertaken by Congress to enhanceits understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agenciesare properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority,and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to beintrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of governmentWith this backdrop, it is clear that congressional oversight is not unconstitutional per se , meaning, it neither necessarily constitutes anencroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral tothe checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as itprevents the over-accumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basicand related constraints on Congress . It may not vest itself, any of its committees or its members with either executive or judicial power. And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specifiedunder the Constitution including the procedure for enactment of laws and presentment.Thus, any postenactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressionaloversight must be confined to the following:(1) scrutiny based primarily on Congress' power of appropriation and the budget hearings conducted in connectio n withit, its power to ask heads of departments to appear before and be heard by either of its Houses on any matterpertaining to their departments and its power of confirmation and(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries inaid of legislation. Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in thisclass. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed

implementing rules andregulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprovesuch regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of aninward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to whichCongress has by law initially delegated broad powers. It radically changes the design or structure of the Constitution's diagram of power asit entrusts to Congress a direct role in enforcing, applying or implementing its own laws G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners, vs. HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents. DECISION CORONA, J.: This petition for prohibition 1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). 3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status. 4 The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.5 The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized organization.6 Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual report to Congress.7 The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for such purpose.9 Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency. Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a

sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel. Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the implementing agencies. After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed. Actual Case And Ripeness An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court. 12 In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even without any further overt act, 13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm. This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.14 Accountability Public Officers Section 1, Article 11 of the Constitution states: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve. Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenue-generation capability and collection.15 The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to of

advance a declared public policy. Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative. A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To invalidate RA 9335 based on petitioners baseless supposition is an affront to the wisdom not only of the legislatur e that passed it but also of the executive which approved it. Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel. In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said: The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes. In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8 of the law: SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. Equal Protection Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished. 19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court declared: The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical

nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied) The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenuegeneration capability and collection of the BIR and the BOC. 23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges. The BIR performs the following functions: Sec. 18. The Bureau of Internal Revenue . The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall have the following functions: (1) Assess and collect all taxes, fees and charges and account for all revenues collected; (2) Exercise duly delegated police powers for the proper performance of its functions and duties; (3) Prevent and prosecute tax evasions and all other illegal economic activities; (4) Exercise supervision and control over its constituent and subordinate units; and (5) Perform such other functions as may be provided by law. 24 xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions: Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions: (1) Collect custom duties, taxes and the corresponding fees, charges and penalties; (2) Account for all customs revenues collected; (3) Exercise police authority for the enforcement of tariff and customs laws; (4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry; (5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry; (6) Administer all legal requirements that are appropriate; (7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction; (8) Exercise supervision and control over its constituent units; (9) Perform such other functions as may be provided by law. 25 xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. Undue Delegation Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate. 26 It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent the delegation from running riot. 27 To be sufficient, the standard must specify the limits of the delegates authority, announce the legislative policy and identify the conditions under which it is to be

implemented.28 RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law: SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their revenue targets. Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue targets: SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages: Excess of Collection of the Excess Percent (%) of the Excess Collection to Accrue to the Revenue Targets the Fund 30% or below More than 30% 15% 15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released on the same fiscal year. Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies revenue targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the BOC. xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress. 30 Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC. On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under which official s and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service: SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and functions: xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due process : Provided, That the following exemptions shall apply: 1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection performance that can be used as basis for evaluation; and 2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board. (c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executory: Provided, further, That the application of the criteria for the separation of an official or

employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act; xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee. 31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.32 The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due process. At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case, the declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public interest. Separation Of Powers Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist. The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and academic. This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter). The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections34 is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns postenactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. x x x x x x x x x Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. x x x x x xxxx Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided intothree categories, namely: scrutiny, investigation and supervision. a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. xxx b. Congressional investigation While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of " subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its chambers." In an era of delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute." In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto xxx xxx

provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers. On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. x x x x x x x x x Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised. 35 (emphasis supplied) In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the Commission on Elections.36 With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the over-accumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on Congress. 37 It may not vest itself, any of its committees or its members with either executive or judicial power.38 And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution, 39 including the procedure for enactment of laws and presentment. Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following: (1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation 40 and (2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.42 Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers.43It radically changes the design or structure of the Constitutions diagram of power as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.44 Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative

competence.45 It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards.46 In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. 47 Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).48 Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect. 49 Such rules and regulations partake of the nature of a statute50 and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution. Considered Mr. Justice Dante O. Tinga Opinion of

Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment. 52 Section 1, Article VI of the Constitution states: Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. (emphasis supplied) Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional committee legislative veto are invalid. Additionally, Section 27(1), Article VI of the Constitution provides: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President . If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied) Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved by both chambers of Congress. In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress.54 Second, it must be presented to and approved by the President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills: A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the former chamber. The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under common authorship or as a committee bill. Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a bill. The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate is allowed. Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences between the versions approved by the two chambers, a conference committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration. The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers59 The Presidents role in law-making. The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.60 Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause, 61 the determination as to when a law takes effect is wholly the prerogative of Congress. 62 As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law. 63 From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law. Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us. 64 The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No. Section 13 of RA 9335 provides: SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and effect. In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules: The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent. x x x The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a

whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board. To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006 in two newspapers of general circulation 66 and became effective 15 days thereafter. 67 Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee. WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect. SO ORDERED.

2. LECAROZ V. SANDIGANBAYAN C/O VITTO

3. CUENCO V. FERNAN

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 3135 April 15, 1988 MIGUEL CUENCO, complainant, vs. HON. MARCELO B. FERNAN, petitioner. RESOLUTION PER CURIAM: Complainant Miguel Cuenco has filed an untitled pleading dated 27 March 1988 which, consideri ng the melange confus of allegations therein, the Court treats as a consolidated: (1) Second Motion for Reconsideration of the decision dated 23 July 1987 rendered by the Third Division of the Court in the Consolidated Petit ions in G.R. No. L-41171 (entitled "Intestate Estate of the Late Vito Borromeo. Patrocinio Borromeo-Herrera v. Fortunate Borromeo, et al."), G.R. No. 55000 (entitled "In the Matter of the Estate of Vito Borromeo, Deceased. Pilar N. Borromeo, et al. v. Fortunato Borromeo"), G.R. No. 62895 (entitled "Jose Cuenco Borromeo v. Court of Appeals, et al."), G.R. No. 63818 (entitled "Domingo Antigua, et al. v. Court of Appeals, et al. "), and G.R. No. 65995 (entitled "Petra Borromeo, et al. v. Francisco P. Burgos, etc., et al."); (2) Motion for Reconsideration of the Court's En Banc Resolution of 17 February 1988 in this case; and (3) Compliance with the directive in aforesaid Resolution of 17 February 1988 requiring complainant Cuenco "to show cause why he should not be administratively dealt with for having made unfounded and serious accusations against Mr. Justice Fernan." A. On the Second Motion for Reconsideration of the Decision in the Consolidated Petitions The record of the Vito Borromeo estate proceedings discloses that the 23 July 1987 decision of the Court in the five (5) Consolidated Petitions menti oned became final and executory on 19 October 1987 and that Entry of Judgment was made on 24 March 1988. There is thus no need to discuss here the arguments made by complainant Cuenco in respect of the Court's decision therein on the matter of attomey's fees of Mr. Cuenco and all the other lawyers concerned. B. On the Motion for Reconsideration of the Resolution of the Court in Administrative Case No. 3135 The present administrative case for disbarment filed by complainant Cuenco against Mr. Justice Fernan was previously dismissed by the Court "for utter lack of merit" in a Per Curiam Resolution issued on 17 Febr uary 1988 on, inter alia, the ground that complainant had failed altogether to substantiate his charges against Mr. Justice Fernan. The Court also held that, under the Constitution, removal from office of a Member of the Supreme Court can be effected only through impeachment, and not indirectly through disbarment proceedings. To the extent that the Court can understand complainant

Cuenco's untitled pleading, complainant would now seek reconsider consideration of the Court's Resolution on the following grounds: 1. That in the estate proceedings of the late Vito Borromeo, Mr. Justice Fernan "made up his mind that some persons have to be declared heirs of Vito Borromeo" and that the several petitions for declaration of heirs were heard jointly at the law office of Atty. now Justice Fernan in Cebu City; 2. That it is unlikely that Mr. Justice Fernan "had a stony face, was motionless, expression less, without uttering words, views, opinions, so that he did not assert any influence [during] long deliberations [of the Consolidated Petitional], hence, "it is impossible to deny Justice Fernan's participation in the preparations of the 32-page decision of the Third Division of the Supreme Court [in the Consolidated Petitional];" consequently, Mr. Justice Fernan not only "voted for his exoneration which is naturally seriously anomalous," but he also acted as respondent, his own counsel for himself and judge of himself three conflicting positions rolled into one;" 3. That "[t]he decision of the Third Division in the five cases is open to the suspicion that Justice Fernan is protecting Judge Burgos, and Attys. Antigua and Estenzo for violating the provisions of the Civil Code;" and 4. That "[t]he theory that Mr. Justice Fernan is not accountable for any grave misconduct except by impeachment proceeding, is not absolute. In its Resolution of 17 February 1988 in this case, the Court found complainant Cuenco's charges against Mr. Justice Fernan to be "completely unsupported by the facts and evidence of record." We find in the present instance that complainant Cuenco, in his untitled pleading, has once more failed to submit any proof whatsoever to substantiate the statements made by him therein which are so extravagant as to be preposterous. 1. As pointed out in the Court's 17 February 1988 Resolution of this case, Special Proceedings No. 916-R for probate of the will of the late Vito Borromeo was instituted in 1952, while it was in 1954 that the "heirs" referred to by complainant Cuenco in his pleading claimed rights of ownership over thirteen (13) parcel of land which they sought to be excluded from the estate of the decedent. Upon the other hand, Mr. Justice Fernan's involvement in the Vito Borromeo estate proceedings began only on 7 August 1965 and ended on 19 February 1968, long after said "heirs" had surfaced and asserted their respective claims against the decedent's estate. There is, therefore, no rational basis for the assertion of complainant Cuenco that Mr. Justice Fernan "made up his mind that some persons have to be declared heirs of Vito Borromeo." Complainant Cuenco further asserts that the several petitions for declaration of heirs filed by the different claimants to the estate of the late Vito Borromeo "were heard jointly at the law office of Atty. now Justice Fernan in Cebu City." It will be noted from the 23 July 1987 decision of the Court in the Consolidated Petitions that said petitions for declaration of heirship were heard jointly by the trial judge not by Mr. Justice Fernan sometime during or after the month of December 1968, after probate of the will had been disallowed by the probate court, and after Mr. Justice Fernan had already withdrawn as counsel for two (2) of the instituted heirs in the Vito Borromeo estate proceedings. 2. The record explicitly shows that Mr. Justice Fernan inhibited himself from participating in the deliberations on the Vito Borromeo estate cases and,

in fact, did not take part in the resolution thereof. This fact of non-participation is manifested in the annotation appearing beside Mr. Justice Fernan's signature: "No part I appeared as counsel for one of the parties." Complainant Cuenco, however, continues simply to ignore this express statement on the record and, instead, presents his own personal notions of the "true" facts and circumstances of this case. The record, however, is entirely bereft of any suggestion that Mr. Justice Fernan had in any way influenced any Member of the Third Division of the Court or participated in the deliberations and resolution of the estate cases. 3. We are unable to understand Cuenco's assertion that the Decision of the Courts' Third Division in the Consolidated Petitions "is open to the suspicion that Justice Fernan is protecting Judge Burgos, and Attys. Antigua and Estenzo for violating the provisions of the Civil Code." 4. On the statements made by complainant Cuenco concerning the rule referred to in the per curiam Resolution of 17 February 1988 that a Member of the Supreme Court may be removed from office on ly through impeachment, not by a disbarment proceeding, it suffices to furnish Mr.Cuenco a copy of the extended Resolution of this Court dated 15 April 1988 on this same topic. C. On Compliance with the Resolution of l7 February 1988 in Administrative Case No. 3135. The Court finds the explanation given by complainant Cuenco to be totally unsatisfactory. Complainant Cuenco vehemently denies acting in bad faith in filing the present administrative complaint against Mr. Justice Fernan and suggests that his acts have been "misunderstood" by the Court. Complainant, however, has failed to present a shred of evidence to support the very serious charges he has made against Mr. Justice Fernan. In his untitled pleading, complainant Cuenco has not only declined to prove the accusations he has made against Mr. Justice Fernan but has also chosen to make additional statements and charges so extravagant and so clearly uninformed as to require no discussion. Because the Court cannot assume that complainant Cuenco is totally unaware of the nature and gravity of the charges he has made against Mr. Justice Fernan and which he has completely failed to support with anything but his own bare assertion, the Court is compelled to conclude that those accusations were made in bad faith. ACCORDINGLY, the Court Resolved: a) to DENY Mr. Cuenco's Second Motion for Reconsideration of the Decision of the Court dated 23 July 1987 in G.R. Nos. L-41171, 55000, 62895, 63818 and 65995, said decision having become final and executory; b) to DENY, with finality, complainant Cuenco's Motion for Reconsideration of the Resolution of this Court dated 17 February 1988 in Administrative Case No. 3135; and c) to FIND Mr. Cuenco guilty of misconduct as a lawyer and an officer of the Court. Complainant Cuenco is hereby severely REPRIMANDED and WARNED that the same or similar misconduct in the future will be dealt with more severely by the Court. Were it not for complainant Cuenco's advanced age, frail health and prior service to the country, the Court would have imposed a mo re severe penalty in this case.

Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. Fernan, J., took no part. CaseDigest Facts: Manuel Cuenco a lawyer filed an untitled complaint for disbarment against Justice Fernan for: 1) That in the estate proceedings of the late Vito Borromeo, Mr. Justice Fernan "made up his mind that some persons have to be declared heirs of Vito Borromeo" and that the

several petitions for declaration of heirs were heard jointly at the law office of Atty. now Justice Fernan in Cebu City; 2) In Justice Fernan's participation in the preparations of the 32--page decision of the Third Division of the Supreme Court, he acted as respondent, his own counsel

for himself and judge of himself three conflicting positions rolled into one; 3) That the decision of the Third Division in the five cases is open to the suspicion that Justice Fernan is protecting Judge Burgos, and Attys. Antigua and Estenzo for violating the provisions of the

Civil Code; 4) That the theory that Mr. Justice Fernan is not accountable for any grave misconduct except by impeachment proceeding, is not absolute. Issues: WON Justice Fernan was guilty of the charges filed against him. Held: 1) Mr. Justice Fernan's involvement in the Vito Borromeo estate proceedings

began only on 7 August 1965 and ended on 19 February 1968, long after said "heirs" had surfaced and asserted their respective claims against the decedent's estate, which was in 1954. 2) The record explicitly shows that Mr. Justice Fernan inhibited himself from participating in the deliberations on

the Vito Borromeo estate cases and, in fact, did not take part in the resolution thereof. This fact of non--participation is manifested in the annotation appearing beside Mr. Justice Fernan's signature: "No part I appeared as counsel for one of the parties." 3) the Court could not

understand his assertion on this matter. 4) The Court held that, under the Constitution, removal from office of a Member of the Supreme Court could be effected only through impeachment, and not indirectly through disbarment proceedings. The Court denied Cuencos petition and found him guilty of misconduct as

a lawyer and an officer of the Court. He was SEVERELY REPRIMANDED AND WARNED that similar misconduct in the future will be dealt with more severely.

4. IN RE: RAUL M. GONZALEZ

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 88-4-5433 April 15, 1988 IN RE FIRST INDORSEMET FROM HONORABLE RAUL M. GONZALEZ DATED 16 MARCH 1988 REQUESTING HONORABLE JUSTICE MARCELO B. FERNAN TO COMMENT ON AN ANONYMOUS LETTER-COMPLAINT. RESOLUTION

PER CURIAM: The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez, "Tanodbayan/Special; Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint, dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court," together with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications of policy raised by said 1st Indorsement. The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention. The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled "Miguel Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of merit. In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with finality Mr Cuenco's Motion for Reconsideration.

It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms. A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms: There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied) This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan, 1 the Court said: The broad power of the New Constitution vests the respondent court with jurisdiction over "public officers and employees, including those in government-owned or controlled corporations." There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides: Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption." Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law. Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that "judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The above

provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)." The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance with law" may not prosper. 2 The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are substantially reproduced in Article XI of the 1987 Constitution: Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Sec. 3 xxx xxx xxx (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court. It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings.

The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M. Gonzales and Mr Miguel Cuenco. Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. Fernan, J., took no part. Guetierrez, J., J., is on leave.

CASE DIGEST
Facts:

L.4 In Re: Raul M. Gonzales

Gonzales was the Tanodbayan or Special Prosecutor. He forwarded a letter-complaint to Justice Fernan. The letter was said to be from concerned employees of the SC (an anonymous letter).

The letter was originally addressed to Gonzales referring to the charges for disbarment sought by Mr. Miguel Cuenco against Justice Fernan, and asking him (Gonzales) to do something about it. The Supreme Court furnished a copy to Gonzales, the per curiam Resolution of the SC, dismissing the charges made by Cuenco against Justice Fernan for lack of merit. In that resolution, Cuenco was asked to show cause why he should not be held administratively liable for making serious accusations against Fernan. Issue:

Whether or not a Supreme Court justice can be disbarred during his term of office Held:

A public officer (such as Justice Fernan) who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan, or any other court, with any offense which carries with it the penalty of removal from office. Another reason why the complaint for disbarment should be dismissed is because under the Constitution, members of the SC may be removed only by impeachment. The above provision proscribes removal from office by any other method. Otherwise, to allow such public officer who may be removed solely by impeachment to be charged criminally while holding his office with an office that carries the penalty of removal from office, would be violative of the clear mandate of the Constitution. The effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office. But the party convicted shall nevertheless be held liable and subject to prosecution, trial and punishment according to law. The court is not saying that the members and other constitutional officer are entitled to immunity from liability. What the court is merely saying is that there is a fundamental procedural requirement that must be observed before such liability ma be determined. A member of the SC must first be removed from office, via the constitutional route of impeachment, and then only may he be held liable either criminally or administratively (that is, disbarment), for any wrong or misbehavior in appropriate proceedings.

5. FRANCISCO JR. V. HOUSE OF REPRESENTATIVES FULL CASE EN BANC [G.R. No. 160261. November 10, 2003] ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents, JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160262. November 10, 2003] SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160263. November 10, 2003] ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-inintervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160277. November 10, 2003] FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,petitioner-in-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-inintervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160292. November 10, 2003]

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160295. November 10, 2003] SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO,respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160310. November 10, 2003] LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. [G.R. No. 160318. November 10, 2003] PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. [G.R. No. 160342. November 10, 2003] ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. [G.R. No. 160343. November 10, 2003] INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents. [G.R. No. 160360. November 10, 2003] CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents. [G.R. No. 160365. November 10, 2003] U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC

OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTATIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents. [G.R. No. 160370. November 10, 2003] FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. [G.R. No. 160376. November 10, 2003] NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. [G.R. No. 160392. November 10, 2003] VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. [G.R. No. 160397. November 10, 2003] IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. [G.R. No. 160403. November 10, 2003] PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. [G.R. No. 160405. November 10, 2003] DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents.

DECISION CARPIO-MORALES, J.: There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nations history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the

legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution. In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides: ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules [1] approved by the 11th Congress. The relevant distinctions between these two Congresses House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES RULE II INITIATING IMPEACHMENT

12TH CONGRESS NEW RULES RULE V BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL

Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least onethird (1/3) of all the Members of the House.

Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer,impeachment proceedings against such official aredeemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official,as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House,impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

RULE V BAR AGAINST IMPEACHMENT

Section 14. Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once within the period of

Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are

one (1) year.

deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,[2] sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).[3] On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint[4] (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices [5] of this Court for culpable violation of the Constitution, betrayal of the public trust and other high crimes.[6] The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,[7] and was referred to the House Committee on Justice on August 5, 2003[8] in accordance with Section 3(2) of Article XI of the Constitution which reads: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was sufficient in form,[9] but voted to dismiss the same on October 22, 2003 for being insufficient in substance.[10] To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint[11] was filed with the Secretary General of the House[12] by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a Resolution of Endorsement/Impeachment signed by at least one-third (1/3) of all the Members of the House of Representatives.[13] Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that [n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year.

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress,[14] posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ perpetually prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ perpetually prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG[15] and Chavez v. PEA-Amari Coastal Bay Development Corporation,[16] prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as a class suit and pray that (1) the House Resolution endorsing the second impeachment

complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void. In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran[17] which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF). In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it

pertains to a constitutional issue which they are trying to inculcate in the minds of their students, pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,[18] prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum,[19]and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate. Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.[20] In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)[21] and Comment, praying that the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution.[22] Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a Petition for Leave to Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a constitutional deadlock and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention. On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a Petition-in-Intervention with Leave to Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentels Comment and Attorneys Macalintal and Quadras Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit: Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) b) c) d) e) locus standi of petitioners; ripeness(prematurity; mootness); political question/justiciability; Houses exclusive power to initiate all cases of impeachment; Senates sole power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim. Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Courts power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied) Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission[23] after the effectivity of the 1935 Constitution whose

provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels , for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. 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 departments; 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. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution . Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.[24] (Italics in the original; emphasis and underscoring supplied) As pointed out by Justice Laurel, this moderating power to determine the proper allocation of powers of the different branches of government and to direct the course of government along constitutional channels is inherent in all courts[25] as a necessary consequence of the judicial power itself, which is the

power of the court to settle actual controversies involving rights which are legally demandable and enforceable.[26] Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has been set at rest by popular acquiescence for a period of more than one and a half centuries. To be sure, it was in the 1803 leading case ofMarbury v. Madison[27] that the power of judicial review was first articulated by Chief Justice Marshall, to wit: It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. [28] (Italics in the original; emphasis supplied) In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts. [29] And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,[30] the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied) As indicated in Angara v. Electoral Commission,[31] judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. [32] (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them.[33] To him, [j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation.[34] To ensure the potency of the power of judicial review to curb grave abuse of discretion by any branch or instrumentalities of government, the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called expanded certiorari jurisdiction of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x xxx Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question .[35] (Italics in the original; emphasis and underscoring supplied) To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction. First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,[36] this Court, speaking through Chief Justice Enrique Fernando, declared: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinarymeaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum.[37] (Emphasis and underscoring supplied) Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary[38] in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.[39] (Emphasis and underscoring supplied supplied) As it did in Nitafan v. Commissioner on Internal Revenue[40] where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared: x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.[41] (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,[42] this Court, through Chief Justice Manuel Moran declared: x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.[43] (Emphasis and underscoring supplied) Likewise, still in Civil Liberties Union v. Executive Secretary,[44] this Court affirmed that: It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. [45] (Emphasis supplied) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary , this Court expounded: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitutionwhen the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof.[46] (Emphasis and underscoring supplied) It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review. [47] For his part, intervenor Senator Pimentel contends that the Senates sole power to try impeachment cases[48] (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senates power to determine constitutional questions relative to impeachment proceedings. [49]

In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case ofNixon v. United States.[50] Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief. [51] Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents and intervenors reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senates sole power to try and decide impeachment cases, as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,[52] [i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs.[53] Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, [w]e have cut the umbilical cord. The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation,[54] our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases,[55] provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judi cial willfulness and pride.[56]

But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,[57] judicially discoverable standards for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez[58] and Alejandrino v. Quezon,[59] cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,[60] this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,[61]in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,[62] this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,[63] it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,[64] it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,[65] it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,[66] it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such memberelect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and one section is not to be allowed to defeat another.[67] Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.[68] (Italics in the original) Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[69] Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest[70] and transcendental importance,[71] and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. [72] Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure[73] while the latter has constitutional underpinnings.[74] In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato[75] to clarify what is meant by locus standi and to distinguish it from real party-in-interest. The difference between the rule on standing and real party in interest has been noted by authorities thus: It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens,

taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. xxx On the other hand, the question as to "real party in interest" is whether he is the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.[76] (Citations omitted) While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. [77] In fine, when the proceeding involves the assertion of a public right,[78] the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.[79]Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.[80] At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.[81] This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.[82] Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.[83]

While an association has legal personality to represent its members,[84] especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,[85] the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.[86] It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned[87] to enable the court to deal properly with all interests involved in the suit,[88] for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.[89] Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. [90] Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.[91] Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.[92] In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadras case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that they will suffer if this insidious scheme of the minority members of the House of Representatives is successful, this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a Petition-in-Intervention with Leave to Intervene to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilons. He alleges that submitting to this Courts jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue. Lastly, as to Jaime N. Sorianos motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayers suits as set forth in Dumlao v. Comelec,[93] to wit: x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is being extracted and spent in violation of specific constitutional protection against abuses of legislative power, or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.[94] (Citations omitted) In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal,[95] this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture.[96] Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The deans position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution[97] and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Tanada v. Cuenco,[98] Chief Justice Roberto Concepcion defined the term political question, viz: [T]he term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.[99] (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review.[100] In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies.[101] Even in the landmark 1988 case of Javellana v. Executive Secretary[102] which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Courts power of judicial review and its application on issues involving political questions, viz: MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the bodys indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but therole of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit

of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as citizens assemblies or barangays. Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of political question was set up. There have been a number of other cases in the past . x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity. This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.[103] (Italics in the original; emphasis supplied) During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term judicial power but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression judicial power? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. .. FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, judicial power includes and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.[104] (Emphasis supplied) From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with truly political questions. From this clarification it is gathered that there are two species of political questions: (1) truly political questions and (2) those which are not truly political questions.

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus,[105] this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide.[106] x x x In Bengzon v. Senate Blue Ribbon Committee,[107] through Justice Teodoro Padilla, this Court declared: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, (t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.[108] (Emphasis and underscoring supplied) And in Daza v. Singson,[109] speaking through Justice Isagani Cruz, this Court ruled: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.[110] x x x (Emphasis and underscoring supplied.) Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr[111] attempts to provide some: x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.[112] (Underscoring supplied) Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy

determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues: I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.[113] Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.[114] Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,[115] this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.[116] [Emphasis and underscoring supplied] The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,[117] where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit: It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied . Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself .[118] [Emphasis supplied] Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied.[119] In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution[120] calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary. [121] Without going into the merits of petitioners Alfonso, et. al.s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Courts opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Courts ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,[122] viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be in aid of legislation in accordance with its duly published rules of procedure and that the rights of persons appearing in or affected by such inquiries shall be respected. It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against ones self. [123] In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria,et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads: Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the verified complaint or resolution of impeachment was not filed by at least one-third of all the Members of the House. With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a Resolution of Endorsement. Intervenors point to the Verification of the Resolution of Endorsement which states that: We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x[124] Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin forthwith, is that the verified complaint be filed, not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding

resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. Intervenors foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latters arguments and issues as their own. Consequently, they are not unduly prejudiced by this Courts decision. In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et. al. argue that [t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment.[125] But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred.[126]Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this

Court is duty-bound to take cognizance of the instant petitions.[127] In the august words of amicus curiae Father Bernas, jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty. Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so.[128] On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness.[129]After all, by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office.[130] The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal. [131] In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunals membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held: Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senators elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as

such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest. More recently in the case of Estrada v. Desierto,[132] it was held that: Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices. [133] (Italics in the original) Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba,[134] this Court, through Justice Marcelo Fernan cited the seven pillars of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA[135] as follows: 1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act. 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. . . . It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted). The foregoing pillars of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories: 1. that there be absolute necessity of deciding a case 2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality. As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review: 1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case.[136] Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary. They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.[137] Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioners prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows. [138] Thus, in Javellana v. Executive Secretary[139] where this Court was split and in the end there were not enough votes either to grant the petitions, or to sustain respondents claims,[140] the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit:[141] Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought to protect and enforce it without fear or favor, resist encroachments by governments, political parties, or even the interference of their own personal beliefs.[142] Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term initiate does not mean to file; that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean to file because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term initiate. Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of initiate as to file, as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of initiating included the act of taking initial action on the complaint, dissipates any doubt that indeed the word initiate as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. Initiate of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Websters Third New International Dictionary of the English Language concisely puts it, it means to perform or facilitate the first action, which jibes with Justice Regalados position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is deemed initiated when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say impeachment proceedings are initiated but rather are deemed initiated. The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied) As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records: MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not

really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: to initiate impeachment proceedings and the comma (,) and insert on line 19 after the word resolution the phrase WITH THE ARTICLES, and then capitalize the letter i in impeachment and replace the word by with OF, so that the whole section will now read: A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded. I already mentioned earlier yesterday that the initiation , as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words Articles of Impeachment are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President.[143] (Italics in the original; emphasis and udnerscoring supplied) This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.[144] It is thus clear that the framers intended initiation to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that the obvious reason in deleting the phrase to initiate impeachment proceedings as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution.[145]

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word initiate as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word initiate, appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied) refers to two objects, impeachment case and impeachment proceeding. Father Bernas explains that in these two provisions, the common verb is to initiate. The object in the first sentence is impeachment case. The object in the second sentence is impeachment proceeding. Following the principle of reddendo singuala sinuilis, the term cases must be distinguished from the term proceedings. An impeachment case is the legal controversy that must be decided by the Senate. Abovequoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has exclusive power to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a proceeding must be followed to arrive at a conclusion. A proceeding must be initiated. To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House initiates an impeachment case. It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment case before the Senate as impeachment court. Father Bernas further explains: The impeachment proceeding is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the impeachment proceeding initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings, this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.[146] Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, No impeachment proceeding shall be initia ted against the same official more than once within a period of one year, it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of to initiate which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says The House of Representatives shall have the exclusive power to initiate all cases of impeachment, This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating impeachment cases with impeachment proceeding. From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term to initiate refers to the filing of the impeachment complaint coupled with Congress taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term initiate a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino[147] wherein this Court stated that their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Courts our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings. Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latters balanced perspectives and disinterestedness. [148]

Justice Gutierrezs statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. Clearly, its power to promulgate its rules on impeachment is limited by the phrase to effectively carry out the purpose of this section. Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz: Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun,[149] this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted disorderly behavior of its members. However, in Paceta v. Secretary of the Commission on Appointments,[150]Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,[151] declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. InArroyo v. De Venecia,[152] quoting United States v. Ballin, Joseph & Co.,[153] Justice Vicente

Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress,viz: With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: x x x The Constitution, in the same section, provides, that each house may determine the rules of its proceedings. It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1)

that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers.[154] xxx In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government.[155] xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people. [156] xxx The provision defining judicial power as including the duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.[157] (Italics in the original emphasis and underscoring supplied) Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives rely on Nixon v. US[158] as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that the House of Representatives shall have the sole power of impeachment. It adds nothing more. It gives no clue whatsoever as to how this sole power is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that exclusive power is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term initiate a meaning different from filing. Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period.

Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of lack of jurisdiction, nonjusticiability, and judicial self-restraint aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Courts jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison detre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the

members interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branchs official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the laws moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the highprofile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individuals rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED. Davide, Jr., C.J., no part. Bellosillo, J., see separate opinion. Puno, and Ynares-Santiago, JJ., see concurring and dissenting opinion. Vitug, J., please see separate opinion (concurring).

Panganiban, and Callejo, Sr., JJ., see separate concurring opinion. Sandoval-Gutierrez, J., see separate and concurring opinion Quisumbing, J., concurring separate opinion received. Carpio, J., concur. Austria-Martinez, J., concur in the majority opinion and in the separate opinion of Justice Vitug. Corona, J., will write a separate concurring opinion. Azcuna, J., concur in the separate opinion. Tinga, J., concur. Please see separate opinion.

CASE DIGEST FRANCISCO VS. HOUSE OF REPRESENTATIVES G.R. NO. 160261 NOV. 10, 2003 Facts: On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings, superseding the previous House Impeachment Rules approved by the 11th Congress. On 22 July 2002, the House of Representatives adopted a Resolution, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF). On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first impeachment

complaint) against Chief Justice Hilario G.Davide Jr. and seven Associate Justices of the Supreme Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." The complaint was endorsed by House Representatives, and was referred to the House Committee on Justice on 5 August 2003 in accordance with Section 3(2) of Article XI of the Constitution.The House Committee on Justice ruled on 13 October 2003 that the first impeachment complaint was "sufficient inform," but voted to dismiss the same on 22 October 2003 for being insufficient in substance. Four months and three weeks since the filing of the first complaint or on 23 October 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by House Representatives against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by abovementioned House Resolution. The second impeachment complaint was accompanied by a"Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of Representatives.Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." Issue: Whether the power of judicial review extends to those arising from impeachment proceedings. Held: The Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution. The "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable." As indicated in Angara v. Electoral Commission, judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. And the judiciary in turn, with the Supreme Court as the final arbiter,effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature,that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as

embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach,and the one year bar on the impeachment of one and the same official. The people expressed their will when they instituted the above-mentioned safeguards in the Constitution. This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

6. GUITERREZ V. HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE Certiorari and prohibition QuickGuide: Petitioner-Ombudsman challenges House Resolutions of Sept. 1 and 7, 2010 finding two impeachment complaints against the petitioner, simultaneously referred to the House Committee on Justice, sufficient in form and substance on grounds that she was denied due process and that the said resolutions violated the one-year bar rule on initiating impeachment proceedings for impeachable officers. Court dismissed the petition. FACTS 22July2010: 4 days before the 15th Congress opened its first session, private respondents Risa Hontiveros-Baraquel, Danilo Lim and spouses Pestao (Baraquel group) filed an impeachment complaint against Gutierrez upon endorsement of Party-List Representatives Walden Bello and Arlene Bag-ao 27July2010: HOR Sec-Gen transmitted the complaint to House Speaker Belmonte who then, on August 2, directed the committee on Rules to include it in the order of Business 3Aug2010: private respondents Renato Reyes Jr., Mother Mary John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite and James Terry Ridon (Reyes group) filed an impeachment complaint against herein petitioner endorsed by Representatives Colmenares, Casio, Mariano, Ilagan, Tinio and De Jesus HOR provisionally adopted the Rules of Procedure on Impeachment Proceedings of the 14th Congress and HOR Sec-Gen transmitted the complaint to House Speaker Belmonte who then, on August 9, directed the Committee on Rules to include it in the Order of Business 11Aug2010: HOR simultaneously referred the two complaints to the House Committee on Justice (HCOJ for brevity After hearing, HCOJ by Resolution of September 1, 2010, found both complaints sufficient in form 2Sept2010: The Rules of Procedure of Impeachment Proceedings of the 15th Congress was published After hearing, HCOJ by Resolution of September 7, 2010 found the two complaints, which both allege culpable violation of the Constitution and betrayal of public trust, sufficient in substance Petitioner filed petitions for certiorari and prohibition challenging Resolutions of September 1 and 7 alleging that she was denied due process and that these violated the one-year bar rule on initiating impeachment proceedings.

ISSUE/S: 1. WON the case presents a justiciable controversy. 2. WON the belated publication of the Rules of Procedure of Impeachment Proceedings of the 15th Congress denied due process to the Petitioner. 3. WON the simultaneous referral of the two complaints violated the Constitution. RULING: Petition DISMISSED. Ratio: 1. NOT A POLITICAL QUESTION Francisco Jr. vs HOR: Judicial review is not only a power but a duty of the judiciary the 1987 Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official.

the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr, judicially discoverable standards for determining the validity of the exercise of such discretion, through the power of judicial review

2. DUE PROCESS: Is there a need to publish as a mode of promulgation the Rules of Procedure of Impeachment Proceedings? (P) alleges that the finding of sufficiency in form and substance of the impeachment complaints is tainted with bias as the Chairman of the HCOJs, Rep. Tupas, father has a pending case with her at the Sandiganbayan Presumption of regularity The determination of sufficiency of form and exponent of the express grant of rule-making power in the HOR the Impeachment Rules are clear in echoing the constitutional requirements and providing that there must be a verified complaint or resolution, and that the substance requirement is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee The Constitution itself did not provide for a specific method of promulgating the Rules. impeachment is primarily for the protection of the people as a body politic, and not for the punishment of the offender

3. THE ONE-YEAR BAR RULE (P): start of the one-year bar from the filing of the first impeachment complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress. She posits that within one year from July 22, 2010, no second impeachment complaint may be accepted and referred to public respondent. INITIATIVE: Filing of impeachment complaint coupled with Congress taking initial action of said complaint (referral of the complaint to the Committee on Justice) IMPEACH: to file the case before the Senate Rationale of the one-year bar: that the purpose of the one-year bar is two-fold: 1)to prevent undue or too frequent harassment; and 2) to allow the legislature to do its principal task [of] legislation, that there should only be ONE CANDLE that is kindled in a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the candle. (Gutierrez vs. HOR, 2011)

7. OFFICE OF THE OMBUDSMAN V. CA

OFFICE OF THE OMBUDSMAN v. HON. COURT OF APPEALS and FORMER DEPURTY OMBUDSMAN FOR VISAYAS ARTURO C. MOJICA GR No. 146486, 4 March 2005, Chico-Nazario, J. (Second Division) The enumeration in the Constitution of the impeachable officers is exclusive. The Ombudsman is only one man, not including his Deputies. Thus, only the Ombudsman, not his deputies, is impeachable. On 29 December 1999, twenty- two officials and employees of the Office of the Deputy Ombudsman for the Visayas, led by its two directors, filed a complaint with the Office of the Ombudsman requesting an investigation on the basis of allegations that then Deputy Ombudsman for the Visayas, herein private respondent Arturo Mojica, committed (1) sexual harassment against Rayvi Padua- Varona, mulcting money from confidential employees: James Alueta and Eden Kiamco and (3) oppression against all employees in not releasing P7,200.00 in benefits of OMB- Visayas employees on the date the said amount was due for release. Fact-finding investigation was conducted by the Office of the Ombudsman and the report was referred by the Ombudsman to a constituted Committee of Peers which initially recommended that the investigation be converted into one solely for purposes of impeachment. However, this recommendation was denied by the Office of the Ombudsman and following the stand of the Office of the Ombudsman that the Deputy Ombudsmen and The Special Prosecutor are not removable through impeachment. On 18 December 2000, despite the expiration of private respondent Mojica's term of office, the Court of Appeals nevertheless rendered the assailed Decision on the grounds of public interest. CA ruled that the Deputy Ombudsman is an impeachable officer. Thus, OMB's appeal. ISSUE: 1. Whether or not the Ombudsmans Deputies are impeachable 2. Whether or not the Deputy Ombudsman may be held criminally and/or administratively liable HELD: Order of the CA is REVERSED and SET ASIDE. The complaints in Criminal Case No. OMB-0-00-0616 and Administrative Case No. OMB-ADM-0-00-0316 are REINSTATED and the Office of the Ombudsman is ordered to proceed with the investigation relative to the above cases. Ombudsman's Deputies Not Impeachable The Deputy Ombudsman is not an impeachable officer. Sec. 2, Article XI of the 1987 Constitution states that The President, the Vice- President, the members of the Supreme Court, the members of the Constitutional Commissions and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from Office as provided by law, but not by impeachment. Records of the Constitutional Commission, as well as the opinions of leading commentators in Constitutional Law reveal that the term Ombudsman in Sec. 2, Article XI of the 1987 Constitution refer to the rank in itself. The Ombudsman is only one man, not including his Deputies.

Leading legal luminaries on the Constitution are one in their opinion as to whether or not the Deputy Ombudsman is impeachable. All of them agree that the enumeration impeachable officers in Section 2, Article XI of the 1986 Constitution, is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable. How then to explain our earlier pronouncement in Cuenco v. Fernan, as later cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella which reads: To grant a complaint for disbarment of a Member of the Court during the Members incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI [2] of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2]) all of whom are constitutionally required to be members of the Philippine Bar? A dictum is an opinion that does not embody the resolution or determination of the court, and made without argument, or full consideration of the point. Mere dicta are not binding under the doctrine of stare decisis. The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, does Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella, which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits. Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented. Criminal and Administrative Liability of Deputy Ombudsman As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts. Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the formers retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 f the Anti-Graft and Corrupt Practices Act.

SECOND DIVISION

[G.R. No. 146486. March 4, 2005]

OFFICE OF THE OMBUDSMAN, petitioner, vs. HONORABLE COURT OF APPEALS AND FORMER DEPUTY OMBUDSMAN FOR THE VISAYAS ARTURO C. MOJICA, respondents.

DECISION
CHICO-NAZARIO, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, and alternatively, an original special civil action for certiorari under Sec. 1, Rule 65 of the Decision[1] of the Court of Appeals of 18 December 2000 in CA-G.R. SP No. 58460 entitled, Arturo C. Mojica, Deputy Ombudsman for the Visayas v. Ombudsman Aniano Desierto, Over-all Deputy Ombudsman Margarito Gervacio, Jr. and the Committee of Peers composed of Deputy Ombudsman Jesus F. Guerrero, Deputy Ombudsman Rolando Casimiro and Special Prosecutor Leonardo P. Tamayo. The case had its inception on 29 December 1999, when twenty-two officials and employees of the Office of the Deputy Ombudsman (OMB) for the Visayas, led by its two directors, filed a formal complaint[2] with the Office of the Ombudsman requesting an investigation on the basis of allegations that then Deputy Ombudsman for the Visayas, herein private respondent Arturo Mojica, committed the following:
1. 2. 3. Sexual harassment against Rayvi Padua-Varona; Mulcting money from confidential employees James Alueta and Eden Kiamco; and Oppression against all employees in not releasing the P7,200.00 benefits of OMBVisayas employees on the date the said amount was due for release.

The complainants further requested that an officer-in-charge from the OMB-Manila be appointed to manage their office to prevent the Deputy Ombudsman from harassing witnesses and wielding his influence over them. To underscore the seriousness of their intentions, they threatened to go on a mass leave of absence, and in fact took their cause to the media.[3] The subsequent events, as stated by the Ombudsman and adopted by the Court of Appeals,[4] are as follows: The Ombudsman immediately proceeded to the OMB-Visayas office in Cebu City to personally deal with the office rebellion. Reaching Cebu, the Ombudsman was informed by Petitioner that Petitioner wanted to proceed to Manila, apparently because of his alienation and the fear for reprisal from his alleged l ady victims husbands. Petitioner in fact already had a ticket for the plane leaving two hours later that day. The Ombudsman assented to the quick movement to Manila for Petitioners safety and the interest of the Offices operations. Subsequently, the Ombudsman installed Assistant Ombudsman Nicanor J. Cruz as the Officer-in-Charge of OMB-Visayas. Acting on the formal complaint against petitioner, the Ombudsman directed his Fact-Finding and Intelligence Bureau (FFIB) to conduct a verification and fact-finding investigation on the matter. The FFIB, later in its Report, found the evidence against Petitioner strong on the charges of acts of extortion, sexual harassment and oppression. The FFIB report was referred by the Ombudsman to a constituted Committee of Peers composed of the Deputy Ombudsman for Luzon, The Special Prosecutor and the Deputy Ombudsman for the Military. The Committee of Peers initially recommended that the investigation be converted into one solely for purposes of impeachment. However, this recommendation was denied by the Ombudsman after careful study, and following the established stand of the Office of the Ombudsman that the Deputy Ombudsmen and The Special Prosecutor are not removable

through impeachment. As succintly (sic) stated by the Ombudsman in his Memorandum dated March 27, 2000 (in reiteration of the March 13, 2000 Order of Overall Deputy Ombudsman) Acting on your query as to whether or not the Ombudsman confirms or affirms the disapproval by Overall Deputy Ombudsman Margarito P. Gervacio, Jr., of your recommendation to conduct instead an investigation of the complaint against Deputy Ombudsman Arturo C. Mojica solely for the purpose of impeachment, I hereby confirm the action of disapproval. xxx Moreover, as demonstrated in many previous cases against Deputy Ombudsman Arturo C. Mojica, Deputy Ombudsman Manuel B. Casaclang, Deputy Ombudsman Jesus F. Guerrero, Special Prosecutor Leonardo P. Tamayo and former Overall Deputy Ombudsman Francisco A. Villa, the official position of the Office is that the Constitution, R.A. 6770 and the Supreme Court in Zaldivar vs. Gonzales, G.R. No. 80578, 19 May 1988, exclude the Deputy Ombudsman and the Special Prosecutor from the list of impeachable officials and the Jarque case involves Ombudsman Aniano A. Desierto as respondent, hence, the mention therein of the Deputy Ombudsmen is merely an obiter dictum. Two of your present members in fact participated in the investigation of the previous Mojica cases and thereafter recommended the dismissal thereof for lack of merit. In the same Memorandum, the Ombudsman directed the Committee of Peers to evaluate the merits of the case and if warranted by evidence, to conduct administrative and criminal investigation(s) immediately thereafter. Upon evaluation, the Committee recommended the docketing of the complaint as criminal and administrative cases. The Committee of Peers Evaluation dated 30 March 2000, stated as follows: On the basis of the foregoing facts, duly supported with sworn-statements executed by all concerned parties, the undersigned members of the COP find sufficient cause to warrant the conduct of preliminary investigation and administrative adjudication against Deputy Ombudsman Arturo C. Mojica for the following criminal and administrative offenses, namely: I. CRIMINAL Violation of Section 3, paragraph[s] (b) and (e) of R.A. 3019 (Anti-Graft and Corrupt Practices Act); Violation of R.A. 7877 (Anti-Sexual Harassment Act of 1995), II. ADMINISTRATIVE a. b. c. d. e. Dishonesty Grave Misconduct Oppression Conduct grossly prejudicial to the best interest of the service Directly or indirectly having financial and material interest in any transaction requiring the approval of his Office; (Section 22, paragraphs (A), (C), (N), (T) and (U), Rule XIV of Executive Order No. 292, otherwise known as the Administrative Code of 1987.)

Accordingly, let the instant case be docketed separately, one for the criminal case and another for the administrative case covering all the offenses specified above and, thereafter, a formal investigation be simultaneously and jointly conducted by the Committee of Peers,

pursuant to Administrative Order No. 7. Accordingly, on 6 April 2000, the Committee of Peers (COP) directed the herein private respondent Mojica in OMB-0-00-0615 entitled, Padua-Varona v. Mojica, for violation of Republic Act No. 7877 (Anti-Sexual Harassment Act of 1995) and Sec. 3, par. (b) and (c) of Rep. Act No. 3019 (Anti-Graft and Corrupt Practices Act) to submit his controverting evidence. On 10 April 2000, the complainants in OMB-0-00-0615 filed a Motion to Place Respondent Under Preventive Suspension,[5] claiming that the offenses for which private respondent Mojica was charged warranted removal from office, the evidence against him was strong, and that Mojicas continued stay in office would prejudice the case, as he was harassing some witnesses and complainants to recant or otherwise desist from pursuing the case. On the same date, the Ombudsman issued a Memorandum[6] to the COP, directing them to conduct administrative proceedings in OMB-ADM-0-00-0316 entitled, OMB Visayas Employees v. Mojica (for dishonesty, grave misconduct, oppression, conduct grossly prejudicial to the best interest of the service, and directly or indirectly having financial and material interest in any transaction requiring the approval of his office), and submit a recommendation on the propriety of putting Mojica under preventive suspension. Subsequently, the COP issued an Order[7] in OMB-ADM-0-00-0316 finding prima facie evidence against Mojica and requiring him to submit an answer to the above-mentioned offenses within ten days, as well as his counter-affidavit and supporting evidence.[8] Aggrieved, the private respondent filed a petition[9] for Certiorari before the Court of Appeals praying that a resolution be issued: 1. . . . issuing a Temporary Restraining Order (TRO) upon the filing of the petition to enjoin and restrain the respondents, (the Ombudsman, the Over-all Deputy Ombudsman, the Committee of Peers, and the Special Prosecutor) their agents and representatives, from suspending the petitioner (herein private respondent Mojica);

2. thereafter, converting said TRO into a Writ of Preliminary Injunction; 3. after hearing, a decision be rendered declaring the following acts of the Ombudsman null and void ab initio: a. detailing and assigning indefinitely the petitioner to OMB-Manila in a [special] capacity, thus effectively demoting/suspending petitioner, and preventing him from preparing his defense; authorizing or directing the docketing of the complaints against the petitioner, which is equivalent to authorizing the filing of the administrative and/or criminal cases against the petitioner, who is an impeachable official; denying the request of petitioner for leave of absence, which acts were done without lawful authority, in a malevolent and oppressive manner and without jurisdiction.

b.

c.

On 04 May 2000, the Court of Appeals resolved to grant the prayer for Temporary Restraining Order and required the Ombudsman to comment and show cause why no writ of preliminary injunction should be issued, which reads in part: Meanwhile, to maintain the status quo and in order to forestall the petition at bench from

becoming moot and academic, and considering that upon examination of the records we believe that there is an urgent need for the issuance of a temporary restraining order to prevent great and irreparable injury that would result to herein petitioner before the matter could be heard on notice, the herein respondents, their agents and representatives acting for and in their behalf or under their authority, are hereby enjoined and restrained from proceeding with the hearing of the Motion to Place Respondent Under Preventive Suspension dated April 10, 2000, which hearing is set on May 9, 2000 at 2:00 oclock in the afternoon and/or from conducting any further proceedings relative to the suspension from (o)ffice of the herein petitioner until further order and/or notice from this Court.[10] Nevertheless, on 6 June 2000, the COP issued an Order[11] in both OMB-0-00-0615 and OMB-ADM-0-00-0316 to the effect that having failed to submit the required counter-affidavits despite the lapse of seventeen days from the expiration of the extended reglementary period for filing the same, respondent Mojica was deemed to have waived his right to present his evidence. The COP thus deemed both criminal and administrative cases submitted for resolution on the basis of the evidence on record. Thus, on 13 June 2000, the private respondent thus filed an urgent motion[12] before the Court of Appeals to enjoin the Ombudsman from taking any action whatsoever in the criminal and administrative cases aforementioned. The following day, the private respondent filed another urgent motion, this time praying that the Court of Appeals issue an order requiring the Ombudsman to show cause why it should not be cited for contempt for failing to conform with the 4 May 2000 Resolution of the Court of Appeals. On 20 June 2000, the Court of Appeals directed[13] the Ombudsman to comment on the above pleadings, and to comply with the formers Temporary Restraining Order of 4 May 2000. The parties subsequently exchanged various pleadings that culminated in a Resolution[14] by the Court of Appeals on 5 July 2000 that, among other things, directed the issuance of a writ of preliminary injunction enjoining all therein respondents from taking any action whatsoever in cases No. OMB-0-00-0615 (criminal) and No. OMB-ADM-0-00-0316 (administrative) against Mojica, and deemed the instant petition submitted for resolution on the merits upon the submission of the comment or explanation on the appellate courts show cause Resolution of 20 June 2000. Meanwhile, on 19 June 2000, the Office of the Deputy Ombudsman for the Military directed the private respondent Mojica ostensibly to answer a different set of charges for violation of Art. 266 and Sec. 3(e) of Rep. Act No. 3019 (OMB -00-0-1050) and for grave misconduct, gross neglect of duty, and conduct prejudicial to the best interest of the service[15] (OMB-ADM-0-00-0506). Feeling that this was merely an attempt at circumventing the directives of the Court of Appeals, Mojica filed an urgent motion before the Court of Appeals for respondents to show cause again why they should not be cited for contempt. By way of opposition, the Ombudsman pointed out that the writ of preliminary injunction issued by the appellate court was against any action taken in cases No. OMB-0-00-0615 and No. OMB-ADM-0-00-0316, and not against any new cases filed against the private respondent thereafter. The Ombudsman further pointed out that since Mojicas term of office had already expired as of 6 July 2000, the private respondent could no longer invoke his alleged immunity from suit. On 14 August 2000, the Office of the Deputy Ombudsman for the Military issued an order deeming that cases No. OMB-0-00-1050 and No. OMB-ADM-0-00-0506 had been deemed

submitted for resolution on the basis of the evidence at hand. On 17 August 2000, the private respondent filed an urgent motion for the immediate issuance of an order enjoining the Ombudsman from taking any further action whatsoever in OMB-ADM-0-00-0506 and OMB-000-1050.[16] On 18 December 2000, despite the expiration of private respondent Mojicas term of office, the Court of Appeals nevertheless rendered the assailed Decision[17] on the grounds of public interest. In essence, the appellate court held that although the 1987 Constitution, the deliberations thereon, and the commentaries of noted jurists, all indicate that a Deputy Ombudsman is not an impeachable official, it was nevertheless constrained to hold otherwise on the basis of this Courts past rulings. Thus, the dispositive portion thereof reads: WHEREFORE, in view of the foregoing, the order of the Committee of Peers in its Evaluation dated March 30, 2000 directing the docketing separately of the criminal case as well as the administrative case against the petitioner is hereby SET ASIDE and DECLARED NULL AND VOID. Accordingly, the complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316, respectively, filed against the petitioner are hereby DISMISSED. All acts or orders of the Ombudsman, the Overall Deputy Ombudsman and the Committee of Peers, subjecting the petitioner [herein private respondent] to criminal and administrative investigations, or pursuant to such investigations, are likewise hereby DECLARED INVALID.[18] Thereupon, on 15 January 2001, the Office of the Ombudsman filed before this Court a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, and alternatively, an original special civil action for certiorari under Sec. 1, Rule 65 of the same rules, of the above decision, on the following grounds: I THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN ERRONEOUSLY RULING THAT PRIVATE RESPONDENT, AS THEN DEPUTY OMBUDSMAN FOR THE VISAYAS, IS AN IMPEACHABLE OFFICIAL, CONSIDERING THAT THE PLAIN TEXT OF SEC. 2, ART. XI OF THE 1987 CONSTITUTION, AS WELL AS THE INTENT OF THE FRAMERS THEREOF, EXCLUDES A DEPUTY OMBUDSMAN FROM THE LIST OF IMPEACHABLE OFFICIALS. II THE PRINCIPLE OF STARE DECISIS ET NON QUIETA MOVERE MAY NOT BE INVOKED TO PERPETUATE AN ERRONEOUS OBITER DICTUM. III THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO ORDER THE DISMISSAL OF A CRIMINAL CASE AGAINST A RETIRED DEPUTY OMBUDSMAN, WHICH IS STILL PENDING PRELIMINARY INVESTIGATION BEFORE PETITIONER OMBUDSMAN.[19]

At the outset, it bears noting that instead of assailing the Court of Appeals Decision solely by petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, petitioner lodged the present petition alternatively as an original special civil action for certiorari under Sec. 1, Rule 65 of the same rules. It is settled that the appeal from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a special civil action under Rule 65 of the 1997 Rules of Civil Procedure. Rule 45 is clear that the decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceeding involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. Under Rule 45, the reglementary period to appeal is fifteen (15) days from notice of judgment or denial of motion for reconsideration.[20] The records show that following the petitioners receipt on 5 January 2001 of a copy the Court of Appeals Decision, it filed the present petition on 16 January 2001, well within the reglementary period so indicated. We go now into the substantive aspect of this case, where we are presented an attack upon a prior interpretation of Article XI, Sec. 2 in relation to Article XI, Sec. 8 of our Constitution. The interpretation in question first appears in Cuenco v. Fernan,[21] a disbarment case against then Associate Justice Marcelo Fernan filed by Atty. Miguel Cuenco, a former member of the House of Representatives, where we held in part: There is another reason why the complaint for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7)(1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Members incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], id.), and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1] [1], id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied.) Barely two months later, we issued another Resolution in In Re: Raul M. Gonzales,[22] concerning the same charges for disbarment brought against Justice Fernan, wherein we cited the above ruling to underscore the principle involved in the case, that [a] public officer who under the Constitution is required to be a member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer.[23] In 1995, we subsequently anchored our Resolution in Jarque v. Desierto,[24] a disbarment case against then Ombudsman Aniano Desierto, on the above ruling, adding that: . . . [T]he court is not here saying that the Ombudsman and other constitutional officers who are required by the Constitution to be members of the Philippine Bar and are remova[ble] only by impeachment, are immunized from liability possibly for criminal acts or for violation of the

Code of Professional Responsibility or other claimed misbehavior. What the Court is saying is that there is here a fundamental procedural requirement which must be observed before such liability may be determined and enforced. The Ombudsman or his deputies must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Ombudsman be thus terminated by impeachment, he may then be held to answer either criminally or administratively e.g., in disbarment proceedings for any wrong or misbehavior which may be proven against him in appropriate proceedings. (Emphasis supplied) Finally, in Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella,[25] the Court, citing its Resolution in Jarque v. Desierto,[26] dismissed, in a minute resolution, the complaint for disbarment against the herein private respondent Mojica in his capacity as Deputy Ombudsman for the Visayas, stating that: Anent the complaint for disbarment against respondent Arturo C. Mojica in his capacity as Deputy Ombudsman for Visayas, suffice it to state that a public officer whose membership in the Philippine Bar is a qualification for the office held by him and removable only by impeachment cannot be charged with disbarment during his membership (In Re: Raul M. Gonzales, 160 SCRA 771, 774 [1988]; Cuenco vs. Fernan, 158 SCRA 29, 40 [1988]). And we have held in the case of Jarque vs. Desierto (A.C. No. 4509, En Banc Resolution December 5, 1995), that the Ombudsman or his deputies must first be removed from office via impeachment before they may be held to answer for any wrong or misbehavior which may be proven against them in disbarment proceedings. The above Resolution was subsequently made the basis of the appellate courts assailed Decision of 18 December 2000. Thus, in holding that a Deputy Ombudsman is an impeachable officer, the appellate court st ated that it had to defer to the loftier principle of adherence to judicial precedents, otherwise known as the doctrine of Stare Decisis.... necessary for the uniformity and continuity of the law and also to give stability to society. [27] Nevertheless, the court a quo took pains to point out that the 1987 Constitution, the deliberations thereon, and the opinions of constitutional law experts all indicate that the Deputy Ombudsman is not an impeachable officer. Is the Deputy Ombudsman, then, an impeachable officer? Section 2, Article XI of the 1987 Constitution, states that: Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. To determine whether or not the Ombudsman therein mentioned refers to a person or to an office, reference was made by the appellate court to the Records of the Constitutional Commission, as well as to the opinions of leading commentators in constitutional law. Thus: . . . It appears that the members of the Constitutional Commission have made reference only to the Ombudsman as impeachable, excluding his deputies. The pertinent portions of the record read, to wit: ... MR. REGALADO. Yes, thank you.

On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform his duties because he is something like a guardian of the government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people, Quis custodiet ipsos custodies, who will guard the guardians? I understand here that the Ombudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment. MR. ROMULO. MR. REGALADO. MR. MONSOD. That is the intention, Madam President. Only the Ombudsman? Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase have the rank of. We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission and the Committee. MR. ROMULO. Yes. If I may just comment: the Ombudsman in this provision is a rank in itself really. That is how we look at it. But for purposes of government classification and salary, we thought we have to give him a recognizable or an existing rank as a point of reference more than anything else. MR. REGALADO. Yes, but my concern is whether or not he is removable only by impeachment, because Section 2 enumerates the impeachable officials, and it does not mention public officers with the rank of constitutional commissioners. MR. ROMULO. But we do mention them as the Ombudsman is mentioned in that enumeration. We used the word Ombudsman because we would like it to be his title; we do not want him called Chairman or Justice. We want him called Ombudsman. ... (Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274) MR. DAVIDE. I will not insist. On lines 13 and 14, I move for the deletion of the words and the Ombudsman. The Ombudsman should not be placed on the level of the President and the VicePresident, the members of the judiciary and the members of the Constitutional Commissions in the matter of removal from office. MR. MONSOD. Madam President. THE PRESIDENT. Commissioner Monsod is recognized. MR. MONSOD. We regret we cannot accept the amendment because we feel that the Ombudsman is at least on the same level as the Constitutional Commissioners and this is one way of insulating it from politics. MR. DAVIDE. Madam President, to make the members of the Ombudsman removable only by impeachment would be to enshrine and install an officer whose functions are not as delicate as the others whom we wanted to protect from immediate removal by way of an impeachment.

MR. MONSOD. We feel that an officer in the Ombudsman, if he does his work well, could be stepping on a lot of toes. We would really prefer to keep him there but we would like the body to vote on it, although I would like to ask if we still have a quorum, Madam President. THE PRESIDENT. Do we have a quorum? There are members who are in the lounge. The Secretary-General and the pages conduct an actual count of the Commissioners present. THE PRESIDENT. We have a quorum. MR. MONSOD. May we restate the proposed amendment for the benefit of those who were not here a few minutes ago. MR. DE LOS REYES. Madam President, parliamentary inquiry. I thought that amendment was already covered in the amendment of Commissioner Rodrigo. One of those amendments proposed by Commissioner Rodrigo was to delete the word Ombudsman and, therefore, we have already voted on it. MR. DAVIDE. Madam President, may I comment on that. THE PRESIDENT. Yes, the Gentleman may proceed. MR. DAVIDE. The proposed amendment of Commissioner Rodrigo was the total deletion of the Office of the Ombudsman and all sections relating to it. It was rejected by the body and, therefore, we can have individual amendments now on the particular sections. THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the Ombudsman among those officials who have to be removed from office only on impeachment. Is that right? MR. DAVIDE. Yes, Madam President. MR. RODRIGO. Before we vote on the amendment, may I ask a question? THE PRESIDENT. Commissioner Rodrigo is recognized. MR. RODRIGO. The Ombudsman, is this only one man? MR. DAVIDE. Only one man. MR. RODRIGO. Not including his deputies. MR. MONSOD. No. ... (Ibid., p. 305, emphasis supplied) Moreover, this Court has likewise taken into account the commentaries of the leading legal luminaries on the Constitution as to their opinion on whether or not the Deputy Ombudsman is impeachable. All of them agree in unison that the impeachable officers enumerated in Section 2, Article XI of the 1986 Constitution is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable. Foremost among them is the erudite Justice Isagani A. Cruz (ret.), who opined:

The impeachable officers are the President of the Philippines, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman. (see Art. XI, Sec. 2) The list is exclusive and may not be increased or reduced by legislative enactment. The power to impeach is essentially a non-legislative prerogative and can be exercised by the Congress only within the limits of the authority conferred upon it by the Constitution. This authority may not be expanded by the grantee itself even if motivated by the desire to strengthen the security of tenure of other officials of the government. It is now provided by decree (see P.D. No. 1606) that justices of the Sandiganbayan may be removed only through process of impeachment, the purpose evidently being to withdraw them from the removal power of the Supreme Court. This prohibition is of dubious constitutionality. In the first place, the list of impeachable officers is covered by the maxim expressio unius est exclusio alterius. Secondly, Article VIII, Section 11, of the Constitution states that all judges of inferior courts and this would include the Sandiganbayan are under the disciplinary power of the Supreme Court and may be removed by it. This view is bolstered by the last sentence of Article XI, Section 2, which runs in full as follows: Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Cruz, Isagani A., Philippine Political Law, 1996 ed., pp. 333-334) Equally worth noting is the opinion of no less than Rev. Fr. Joaquin G. Bernas, S.J., himself who was a member of the Constitutional Commission which drafted the 1987 Constitution, (who) asserted: Q. A. Is the list of officers subject to impeachment found in Section 2 exclusive? As presently worded, yes.

(Bernas, Joaquin G., S.J., The 1987 Philippine Constitution, A Reviewer-Primer, 1997 ed., p. 401) Last but certainly not the least is the equally erudite Representative Antonio B. Nachura himself, who, as a professor of law, commented that the enumeration of impeachable officers in Section 2, Article XI of the 1987 Constitution, is exclusive. (Nachura, Antonio B., Outline/Reviewer in Political Law, 1998 ed., p. 192)[28] From the foregoing, it is immediately apparent that, as enumerated in Sec. 2 of Article XI of the 1987 Constitution, only the following are impeachable officers: the President, the Vice President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman.[29] How then to explain our earlier pronouncement in Cuenco v. Fernan, as later cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella? By way of reiteration, said Resolution reads in part: . . . To grant a complaint for disbarment of a Member of the Court during the Members incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI [2] of the Constitution. Precisely the same

situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2]), . . . all of whom are constitutionally required to be members of the Philippine Bar.[30] (Emphasis supplied) In cross-referencing Sec. 2, which is an enumeration of impeachable officers, with Sec. 8, which lists the qualifications of the Ombudsman and his deputies, the intention was to indicate, by way of obiter dictum, that as with members of this Court, the officers so enumerated were also constitutionally required to be members of the bar. A dictum is an opinion that does not embody the resolution or determination of the court, and made without argument, or full consideration of the point. Mere dicta are not binding under the doctrine of stare decisis.[31] The legal maxim "stare decisis et non quieta movere" (follow past precedents and do not disturb what has been settled) states that where the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.[32] The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, does LastimosaDalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella , which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits. Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented.[33] As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office.[34] Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts.[35] Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the formers retirement benefits have been placed on hold in view of the provisions of Sections 12[36] and 13[37] of the Anti-Graft and Corrupt Practices Act. WHEREFORE, the Order of the Court of Appeals dated 18 December 2000 is hereby REVERSED and SET ASIDE. The complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316 are hereby REINSTATED and the Office of the Ombudsman is ordered to proceed with the investigation relative to the above cases. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1] Penned by Associate Justice B.A. Adefuin-de la Cruz, with Associate Justices Salome A. Montaya and Renato C. Dacudao concurring.

[2] CA Rollo, p. 121. [3] CA Decision, Rollo, p. 34. [4] Id., pp. 33-63. [5] CA Rollo, p. 40. [6] CA Rollo, p. 46. [7] Dated 25 April 2000, CA Rollo, pp. 44-45. [8] CA Rollo, p. 44. [9] CA Rollo, pp. 2-15. [10] CA Rollo, pp. 48-49. [11] CA Rollo, p. 90. [12] CA Rollo, p. 91. [13] CA Rollo, pp. 104-106. [14] CA Rollo, pp. 161-166. [15] CA Rollo, p. 212. [16] CA Rollo, p. 239. [17] CA Rollo, p. 33. [18] Rollo, pp. 62-63. [19] Rollo, p. 19. [20] Asian Transmission Corporation v. Court of Appeals, G.R. No. 144664, 15 March 2004, citing San Miguel Corporation v. Court of Appeals, G.R. No. 146775, 30 January 2002, 375 SCRA 311. [21] Administrative Case No. 3135, 17 February 1988, 158 SCRA 29. [22] Captioned as follows: In Re: First Indorsement from Honorable Raul M. Gonzales dated 16 March 1988 requesting Honorable Justice Marcelo B. Fernan to Comment on an Anonymous Letter-Complaint (Adm. Matter No. 88-4-5433, 15 April 1988, 160 SCRA 771). [23] Id. at 774. [24] A.C. No. 4509, 5 December 1995, 250 SCRA xi, xiv. [25] Administrative Case No. 4683 (Resolution), 06 August 1997.

[26] Supra, note 24. [27] Citing Lee, German G., Handbook of Legal Maxims, p. 151, 1998 ed.; citing Padilla, Civil Law, Vol. I, 1971 ed., Rollo, p. 18. [28] CA Rollo, pp. 47-50. [29] Presently Simeon V. Marcelo. [30] In Re: Raul M. Gonzales, supra, note 22. [31] Ayala Corporation v. Rosa-Diana Realty and Development Corporation, G.R. No. 134284, 01 December 2000, 346 SCRA 663, citing 20 Am Jur 2d, Courts 39. [32] Negros Navigation Co. v. Court of Appeals , G.R. No. 110398, 7 November 1997, 281 SCRA 534, citing J.M. Tuason & Inc. v. Mariano, G.R. No. L-33140, 23 October 1978, 85 SCRA 644. [33] Negros Navigation Co. v. Court of Appeals , ibid., citing Eubanks v. State, Tex. Civ. App., 203 S.W. 2d 339, 342 (1947). [34] Estrada v. Desierto, G.R. Nos. 146710-15, 03 April 2001, 356 SCRA 108, Mendoza, J., concurring, citing Lecaroz v. Sandiganbayan, G.R. No. L-56384, 22 March 1984, 128 SCRA 324. [35] Ibid. [36] Sec. 12. Termination of Office. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. [37] Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title Seven Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.
In the event that such convicted officer, who may already have been separated from service, has already received such benefits he shall be liable to restitute the same to the governmenT

8. PEOPLE V. SANDIGANBAYAN C/O MARC

9. OFFICE OF THE OMBUDSMAN V. CIVIL SERVICE COMMISSION

FACTS: Melchor Carandang, Paul Elmer Clemente and Jose Tereso De Jesus, Jr., were appointed Graft Investigation Officers III of the Office of the Ombudsman. The Civil Service Commission (CSC) approved the appointments on the condition that for the appointees to acquire security of tenure, they must first obtain a Career Executive Service (CES). The Ombudsman requested to the CSC for the change of status from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus, emphasizing that since the Office of the Ombudsman is not governed by the Career Executive Service Board, security of tenure can be granted despite the absence of CES eligibility. CSC changed the status of Carandangs and Clementes appointments to permanent but not with respect to De Jesus on the ground that he "has not met the eligibility requirements. Hence, this petition for ceritiorari filed by the Office of the Ombudsman seeking to nullify the CSC Resolution. ISSUE: Whether or not the general power of the Civil Service Commission to administer civil service cannot validly curtail the specific discretionary power of appointment including the grant of security of tenure by the Office of the Ombudsman HELD: Book V, Title I, Subtitle A of the Administrative Code of 1987 provides persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution. To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited "only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else."11 It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority. It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too.

10. GONZALESS III V. OFFICE OF THE PRESIDENT

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 196231 September 4, 2012 EMILIO A. GONZALES III, Petitioner, vs. OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deput y Executive Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGANSANCHEZ, and ATTY. CARLITOD. CATAYONG, Respondents. x-----------------------x G.R. No. 196232 WENDELL BARRERAS-SULIT, Petitioner, vs. ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF MALACAANG LEGAL AFFAIRS, Respondents. DECISION PERLAS-BERNABE, J.: The Case These two petitions have been consolidated not because they stem from the same factual milieu but because they raise a common thread of issues relating to the President's exercise of the power to remove from office herein petitioners who claim the protective cloak of independence of the constitutionally-created office to which they belong - the Office of the Ombudsman. The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance of temporary restraining order or status quo order) which assails on jurisdictional grounds the Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460 dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy Ombudsman of the Office of the Ombudsman. The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with application for issuance of a temporary restraining order

or status quo order) seeking to annul, reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to submit a written explanation with respect to alleged acts or omissions constituting serious/grave offenses in relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F. Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3 both issued by the Office of the President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special Prosecutor of the Office of the Ombudsman. The facts from which these two cases separately took root are neither complicated nor unfamiliar. In the morning of August 23, 2010, news media scampered for a minute-byminute coverage of a hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial news accounts were fragmented it was not difficult to piece together the story on the hostage-taker, Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign relation proportions. One newspaper headline ran the story in detail, as follows: MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national television until last night. Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police force. The hostage drama dragged on even after the driver of the bus managed to escape and told police that all the remaining passengers had been killed. Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the bus to immobilize it. Police used hammers to smash windows, door and wind-shield but were met with intermittent fire from the hos-tage taker. Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive. When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza was killed by a sniper. Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders scampering for safety. It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from inside the bus. Mendoza hijacked the tourist bus in the morning and took the tourists

hostage. Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of the hostages during the drama that began at 10 a.m. and played out live on national television. Live television footage showed Mendoza asking for food for those remaining in the bus, which was delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades. Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m. today." Another sign stuck to another window said "3 p.m. today deadlock." Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release final decision," apparently referring to the case that led to his dismissal from the police force. Negotiations dragged on even after Mendoza's self-imposed deadline. Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the police force. "His problem was he was unjustly removed from service. There was no due process, no hearing, no com-plaint," Gregorio said. Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat and kill the remaining hostages. Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos, including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand. Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered near the scene. Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the deployment of crack police teams and snipers near the scene. A crisis man-agement committee had been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD. Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to Mendoza. MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-Internal Affairs Service and the

Manila Regional Trial Court had already dismissed crim-inal cases against him. The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage. "Having worn his (police) uniform, of course there is no doubt that he already planned the hostage taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christina Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24, 2010 12:00 AM, Val Rodri-guez.4 In a completely separate incident much earlier in time, more particularly in December of 2003, 28-year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States smuggling $100,000 from Manila by concealing the cash in their luggage and making false statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest of the charges against them and for being sentenced to time served. Inevitably, however, an investigation into the source of the smuggled currency conducted by US Federal Agents and the Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys' father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed Forces, had accumulated more than P 300 Million during his active military service. Plunder and AntiMoney Laundering cases were eventually filed against Major General Garcia, his wife and their two sons before the Sandiganbayan. G.R. No. 196231 Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery extortion and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others, namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S. No. 08E09512. On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III, all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman for appropriate administrative adjudication.6 Subsequently, Case No. OMB-P-A08-0670-H for Grave Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed their respective verified position papers as directed. Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a

finding that the material allegations made by the complainant had not been substantiated "by any evidence at all to warrant the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the PNP issued a Resolution8 dated October 17, 2008 recommending the dismissal without prejudice of the administrative case against the same police officers, for failure of the complainant to appear in three (3) consecutive hearings despite due notice. However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of said Decision reads: WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen. Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1 NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEA of Manila Police District, Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil Service, with the accessory penalties of forfeiture of retirement benefits and perpetual disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE MISCONDUCT. On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision, followed by a Supplement to the Motion for Reconsideration11 on November 19, 2009. On December 14, 2009, the pleadings mentioned and the records of the case were assigned for review and recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a draft Order12 on April 5, 2010 for appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in turn, signed and forwarded said Order to petitioner Gonzalez's office on April 27, 2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner endorsed the Order, together with the case records, for final approval by Ombudsman Merceditas N. Gutierrez, in whose office it remained pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated in the police service. In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public outcry against the blundering of government officials prompted the creation of the Incident Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila de Lima and vice-chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine accountability for the incident through the conduct of public hearings and executive sessions. However,

petitioner, as well as the Ombudsman herself, refused to participate in the IIRC proceedings on the assertion that the Office of the Ombudsman is an independent constitutional body. Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the following findings: Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction precipitated the desperate resort to hostage-taking. More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without legal and compelling bases considering the following: (a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a case for alleged robbery (extortion), grave threats and physical injuries amounting to grave misconduct allegedly committed against a certain Christian Kalaw. The same case, however, was previously dismissed by the Manila City Prosecutors Office for lack of probable cause and by the PNPNCR Internal Affairs Service for failure of the complainant (Christian Kalaw) to submit evidence and prosecute the case. On the other hand, the case which was filed much ahead by Mendoza et al. against Christian Kalaw involving the same incident, was given due course by the City Prosecutors Office. (b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR - without citing any reason - to endorse the case against Mendoza and the arresting policemen to his office for administrative adjudication, thereby showing undue interest on the case. He also caused the docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDGNCR, who indorsed the case records, as the nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian Kalaw did not also affirm his complaint-affidavit with the Ombudsman or submit any position paper as required. (c) Subsequently, Mendoza, after serving preventive suspension, was adjudged liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May 21, 2009) based on the sole and uncorroborated complaintaffidavit of Christian Kalaw, which was not previously sustained by the City Prosecutor's Office and the PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely motion for reconsideration (dated and filed November 5, 2009) as well as a supplement thereto. No opposition or comment was filed thereto. (d) Despite the pending and unresolved motion for reconsideration, the judgment of dismissal was enforced, thereby abruptly ending Mendoza's 30

years of service in the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief by sending several hand-written letter-requests to the Ombudsman for immediate resolution of his motion for reconsideration. But his requests fell on deaf ears. xxxx By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of Procedure). The inaction is gross, there being no opposition to the motion for reconsideration. Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby rendering the inaction even more inexcusable and unjust as to amount to gross negligence and grave misconduct. SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard of due process, manifest injustice and oppression in failing to provisionally suspend the further implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved motion for reconsideration. By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine months, the two Ombudsman officials acted with arbitrariness and without regard to due process and the constitutional right of an accused to the speedy disposition of his case. As long as his motion for reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof. As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should have provisionally suspended the further enforcement of the judgment of dismissal without prejudice to its reimplementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the adjudication process before the Ombudsman cannot be considered as completely finished and, hence, the judgment is not yet ripe for execution. xxxx When the two Ombudsman officials received Mendoza's demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days. Or if they cannot resolve it that same day, then they should have acted decisively by issuing an order provisionally

suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may have ended peacefully, without necessarily compromising the integrity of the institution. After all, as relayed to the negotiators, Mendoza did express willingness to take full responsibility for the hostage-taking if his demand for release of the final decision or reinstatement was met. But instead of acting decisively, the two Ombudsman officials merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation. As expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000 in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash ("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations. To prevent the situation from getting out of hand, the negotiators sought the alternative option of securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may have ended differently. The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office of the President (OP) for further determination of possible administrative offenses and for the initiation of the proper administrative proceedings. On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time. Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under Section 7(d) of the Code of Conduct and Ethical Standards.18 In a Joint Resolution19 dated February 17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was dismissed, as follows: WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A. Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the compla int is hereby be [sic] DISMISSED.

Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the same is likewise DISMISSED. Meanwhile, the OP notified20 petitioner that a Prel iminary Clarificatory Conference relative to the administrative charge against him was to be conducted at the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21 however, that on February 4, 2011, he heard the news that the OP had announced his suspension for one year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence, believing that the OP had already prejudged his case and that any proceeding before it would simply be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed an Objection to Proceedings22 on February 7, 2011. Despite petitioner's absence, however, the OP pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision,23 the dispositive portion of which reads: WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and h ereby meted out the penalty of DISMISSAL from service. SO ORDERED. Hence, the petition. G.R. No. 196232 In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No. 28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan. On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010, however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit ("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the PLEBARA compliant with jurisprudential guidelines. Outraged by the backroom deal that could allow Major General Garcia to get off the hook with nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his culpability for serious public offenses, the House of Representatives' Committee on Justice conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the Committee on Justice passed and adopted Committee Resolution No. 3,24 recommending to the President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate charges against her Deputies and Assistants before the appropriate government office for having committed

acts and/or omissions tantamount to culpable violations of the Constitution and betrayal of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for removal from office under the Ombudsman Act. The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still proceeded with the case, setting it for preliminary investigation on April 15, 2011. Hence, the petition. The Issues In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit: (A) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, HAS NO CONST ITUTIONAL OR VALID STATUTORY AUTHORITY TO SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN. (B) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS. (C) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR RECONSIDERATION. (D) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S CASE. (E) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS. (F) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE

INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT PETITIONER DEMANDED A BRIBE FROM MENDOZA.25 On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE?26 Re-stated, the primordial question in these two petitions is whether the Office of the President has jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special Prosecutor who belong to the constitutionally-created Office of the Ombudsman. The Court's Ruling Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate that the President has no disciplinary jurisdiction over them considering that the Office of the Ombudsman to which they belong is clothed with constitutional independence and that they, as Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of said office. The Court is not convinced. The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prose-cutor is not exclusive. It is true that the authority of the Office of the Ombudsman to conduct administrative investigations proceeds from its constitutional mandate to be an effective protector of the people against inept and corrupt government officers and employees,27 and is subsumed under the broad powers "explicitly conferred" upon it by the 1987 Constitution and R.A. No. 6770.28 The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term, which literally means "agent" or "representative," communicates the concept that has been carried on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral representative of ordinary citizens against government abuses.29 This idea of a people's protector was first institutionalized in the Philippines under the 1973 Constitution with the creation of the Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII of the 1973 Constitution provided thus: Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. The framers of the 1987 Constitution later envisioned a more effective

ombudsman vested with authority to "act in a quick, inexpensive and effective manner on complaints against administrative officials", and to function purely with the "prestige and persuasive powers of his office" in correcting improprieties, inefficiencies and corruption in government freed from the hampering effects of prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the following powers, functions, and duties of the Office of the Ombudsman, viz: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.31 Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of 1989, to shore up the Ombudsman's institutional strength by granting it "full administrative disciplinary power over public officials and employees,"32 as follows: Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis supplied) In the exercise of such full administrative disciplinary authority, the Office of

the Ombudsman was explicitly conferred the statutory power to conduct administrative investigations under Section 19 of the same law, thus: Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: 1. Are contrary to law or regulation; 2. Are unreasonable, unfair, oppressive or discriminatory; 3. Are inconsistent with the general course of an agency's functions, though in accordance with law; 4. Proceed from a mistake of law or an arbitrary ascertainment of facts; 5. Are in the exercise of discretionary powers but for an improper purpose; or 6. Are otherwise irregular, immoral or devoid of justification. While the Ombudsman's authority to discipline administratively is extensive and covers all government officials, whether appointive or elective, with the exception only of those officials removable by impeachment, the members of congress and the judiciary, such authority is by no means exclusive. Petitioners cannot insist that they should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's disciplinary authority over all government officials, Section 8(2), on the other hand, grants the President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus: Section 8. Removal; Filling of Vacancy.xxxx (2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process. It is a basic canon of statutory construction that in interpreting a statute, care should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting provisions. A construction that would render a provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as parts of a coordinated and harmonious whole.33 Otherwise stated, the law must not be read in truncated parts. Every part thereof must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.34 A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter are quite insightful, viz: x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy Tanodbayan may only be removed for cause and after due process. He added that the President alone has the power to remove the Deputy Tanodbayan. Reacting thereto, Senator Guingona observed that this might impair the

independence of the Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he can be removed not by the President but by the Ombudsman. However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman may try to protect one another. The Chair suggested the substitution of the phrase "after due process" with the words after due notice and hearing with the President as the ultimate authority. Senator Guingona contended, however, that the Constitution provides for an independent Office of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies would be an encroachment on the independence of the Tanodbayan. Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however, considering the Chair's observation that vesting such authority upon the Tanodbayan itself could result in mutual protection, it is necessary that an outside official should be vested with such authority to effect a check and balance.35 Indubitably, the manifest intent of Congress in enacting both provisions Section 8(2) and Section 21 - in the same Organic Act was to provide for an external authority, through the person of the President, that would exercise the power of administrative discipline over the Deputy Ombudsman and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the Ombudsman over all government officials and employees. Such legislative design is simply a measure of "check and balance" intended to address the lawmakers' real and valid concern that the Ombudsman and his Deputy may try to protect one another from administrative liabilities. This would not be the first instance that the Office of the President has locked horns with the Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his authority to conduct administrative investigations over said local elective officials by virtue of the subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent provision of which states: Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President. The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.

7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the Ombudsman Act was inferred therefrom. Thus said the Court: Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject.37 While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160, the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise by the Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which gives the Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees." The Court underscored therein the clear legislative intent of imposing "a standard and a separate set of procedural requirements in connection with administrative proceedings involving public school teachers"41 with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority over a public school teacher is concurrent with the proper investigating committee of the Department of Education, it would have been more prudent under the circumstances for the Ombudsman to have referred to the DECS the complaint against the public school teacher. Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete out administrative sanctions upon them, including the extreme penalty of dismissal from the service. However, it is equally without question that the President has concurrent authority with respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified conditions. Considering the principles attending concurrence of jurisdiction where the Office of the President was the first to initiate a case against petitioner Gonzales, prudence should have prompted the Ombudsman to desist from proceeding separately against petitioner through its Internal Affairs Board, and to defer instead to the President's assumption of

authority, especially when the administrative charge involved "demanding and soliciting a sum of money" which constitutes either graft and corruption or bribery, both of which are grounds reserved for the President's exercise of his authority to remove a Deputy Ombudsman. In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of graft and corruption against petitioner could not have the effect of preventing the Office of the President from proceeding against petitioner upon the same ground of graft and corruption. After all, the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers.42 In Montemayor v. Bundalian,43 the Court sustained the President's dismissal from service of a Regional Director of the Department of Public Works and Highways (DPWH) who was found liable for unexplained wealth upon investigation by the now defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the prior dismissal by the Ombudsman of similar charges against said official did not operate as res judicata in the PCAGC case. By granting express statutory power to the President to remove a Deputy Ombudsman and a Special Prosecutor, Congress merely filled an obvious gap in the law. Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the Ombudsman and his Deputies, viz: Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur. While the removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by impeachment under Section 244 of the same Article, there is, however, no constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in the law without running afoul of any provision in the Constitution or existing statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to impeachment. That the Deputies of the Ombudsman were intentionally excluded from the enumeration of impeachable officials is clear from the following deliberations45 of the Constitutional Commission, thus: MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform his duties because he is something like a

guardian of the government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies", who will guard the guardians? I understand here that the Ombudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment. MR. ROMULO. That is the intention, Madam President. MR. REGALADO. Only the Ombudsman? MR. MONSOD. Only the Ombudsman. MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of". We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission and the Committee.46 xxx THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the Ombudsman among those officials who have to be removed from office only onimpeachment. Is that right? MR. DAVIDE. Yes, Madam President. MR. RODRIGO. Before we vote on the amendment, may I ask a question? THE PRESIDENT. Commissioner Rodrigo is recognized. MR. RODRIGO. The Ombudsman, is this only one man? MR. DAVIDE. Only one man. MR. RODRIGO. Not including his deputies. MR. MONSOD. No.47 (Emphasis supplied) The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is Implied from his Power to Appoint. Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As a general rule, therefore, all officers appointed by the President are also removable by him.49 The exception to this is when the law expressly provides otherwise - that is, when the power to remove is expressly vested in an office or authority other than the appointing power. In some cases, the Constitution expressly separates the power to remove from the President's power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of lower courts shall be appointed by the President. However, Members of the Supreme Court may be removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges of lower courts may be removed only by the Supreme Court by virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall likewise be appointed by the

President, but they may be removed only by impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI). In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor, Congress simply laid down in express terms an authority that is already implied from the President's constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman. The Office of the Ombudsman is charged with monumental tasks that have been generally categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and obtain information and the function to adopt, institute and implement preventive measures.50 In order to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy for the military establishment was necessitated by Commissioner Ople's lament against the rise within the armed forces of "fraternal associations outside the chain of command" which have become the common soldiers' "informal grievance machinery" against injustice, corruption and neglect in the uniformed service,51 thus: In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association outside the chain of command proposing reformist objectives. They constitute, in fact, an informal grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El Diablo and other organizations dominated by enlisted men function, more or less, as grievance collectors and as mutual aid societies. This proposed amendment merely seeks to extend the office of the Ombudsman to the military establishment, just as it champions the common people against bureaucratic indifference. The Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance to higher authorities. This deputy will, of course work in close cooperation with the Minister of National Defense because of the necessity to maintain the integrity of the chain of command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may not have to fall back on their own informal devices to obtain redress for their grievances. The Ombudsman will help raise troop morale in accordance with a major professed goal of the President and the military authorities themselves. x x x The add-on now forms part of Section 5, Article XI which reads as follows: Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for Luzon, Visayas and

Mindanao. A separate deputy for the military establishment shall likewise be appointed. (Emphasis suppl ied) The integrity and effectiveness of the Deputy Ombudsman for the MOLEO a s a military watchdog looking into abuses and irregularities that affect the general morale and professionalism in the military is certainly of primordial importance in relation to the President's own role asCommander-in-Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the President concurrent disciplinary authority over the Deputy Ombudsman for the military and other law enforcement offices. Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the Independence of the Office of the Ombudsman. The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with was intended to free it from political considerations in pursuing its constitutional mandate to be a protector of the people. What the Constitution secures for the Office of the Ombudsman is, essentially, political independence. This means nothing more than that "the terms of office, the salary, the appointments and discipline of all persons under the office" are "reasonably insulated from the whims of politicians."52 And so it was that Section 5, Article XI of the 1987 Constitution had declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman and his Deputies, who are described as "protectors of the people" and constitutionally mandated to act promptly on complaints filed in any form or manner against public officials or employees of the Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of seven years without reappointment Section 11, prohibits a decrease in salaries during the term of office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of independence is meant to build up the Office of the Ombudsman's institutional strength to effectively function as official critic, mobilizer of government, constitutional watchdog53 and protector of the people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its officials to escape administrative discipline. Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political influences and the discretionary acts of the executive, Congress laid down two restrictions on the President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for impeachment laid down in Section 2,

Article XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise the constitutional independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties that their removal can only be had on grounds provided by law. In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman's independence in this wise The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention. This Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. Petitioner Gonzales may not be removed from office where the questioned acts, falling short of constitutional standards, do not constitute betrayal of public trust. Having now settled the question concerning the validity of the President's power to remove the Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy Ombudsman Emilio A. Gonzales, III. At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP proceeded with the administrative case against him despite his non-attendance thereat. Petitioner was admittedly able to file an Answer in which he had interposed his defenses to the formal charge against him. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process.55 Due process is simply having the opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of.56 The essence of due process is that a party is afforded reasonable opportunity to be heard and to submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is sufficient. As long as petitioner was given the opportunity to explain his side and present evidence, the

requirements of due process are satisfactorily complied with because what the law abhors is an absolute lack of opportunity to be heard.58 Besides, petitioner only has himself to blame for limiting his defense through the filing of an Answer. He had squandered a subsequent opportunity to elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory Conference despite notice. The OP recounted as follows It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to explain his side and answer the Formal Charge against him. In the first instance, respondent was given the opportunity to submit his answer together with his documentary evidence, which opportunity respondent actually availed of. In the second instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman refused to appear for said conference, interposing an objection based on the unfounded notion that this Office has prejudged the instant case. Respondent having been given actual and reasonable opportunity to explain or defend himself in due course, the requirement of due process has been satisfied.59 In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial evidence,60 which is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.61 The fact, therefore, that petitioner later refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability based on substantial evidence, which only requires that a decision must "have something upon which it is based."62 Factual findings of administrative bodies are controlling when supported by substantial evidence.63 The OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of removal from office was based on the finding of gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI, 1987 Constitution), and a statutory ground for the President to remove from office a Deputy Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act. The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to verify the basis for requesting the Ombudsman to take over the case; his pronouncement of administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp. Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of available remedies against the immediate

implementation of the Decision dismissing him from the service. Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1) petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp. Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the basis of the unverified complaintaffidavit of the alleged victim Christian Kalaw. The invariable rule is that administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant case, while the evidence may show some amount of wrongdoing on the part of petitioner, the Court seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the most serious violations that justify the removal by impeachment of the highest officials of the land. Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties constitute betrayal of public trust warranting immediate removal from office? The question calls for a deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman and a Special Prosecutor vis-a-vis common administrative offenses. Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes. While it was deemed broad enough to cover any violation of the oath of office,65 the impreciseness of its definition also created apprehension that "such an overarching standard may be too broad and may be subject to abuse and arbitrary exercise by the legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office"67 could be easily utilized for every conceivable misconduct or negligence in office. However, deliberating on some workable standard by which the ground could be reasonably interpreted, the Constitutional Commission recognized that human error and good faith precluded an adverse conclusion. MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I am not a lawyer so I can anticipate

the difficulties that a layman may encounter in understanding this provision and also the possible abuses that the legislature can commit in interpreting this phrase. It is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review of the Journals of that Convention will show that it was not included; it was construed as encompassing acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. I understand from the earlier discussions that these constitute violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which reads: "may be removed from office on impeachment for and conviction of, culpable violation of the Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were enumerated, then it would behoove us to be equally clear about this last provision or phrase. MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any possible amendment. Besides, I think plain error of judgment, where circumstances may indicate that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will allay the fears of difficulty in interpreting the term."68 (Emphasis supplied) The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers."69 In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment. A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by providing for their removal from office on the same grounds as removal by impeachment, the legislature could not have intended to redefine constitutional standards of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could not suddenly

"overreach" to cover acts that are not vicious or malevolent on the same level as the other grounds for impeachment. The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system failure of government response. It cannot be solely attributed then to what petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show that petitioner took considerably less time to act upon the draft resolution after the same was submitted for his appropriate action compared to the length of time that said draft remained pending and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release of any final order on the case was no longer in his hands. Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the same cannot be considered a vicious and malevolent act warranting his removal for betrayal of public trust. More so because the neglect imputed upon petitioner appears to be an isolated case. Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking cognizance of cases upon the request of concerned agencies or private parties is part and parcel of the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The factual circumstances that the case was turned over to the Office of the Ombudsman upon petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even without the private complainant verifying the truth of his statements; that the decision was immediately implemented; or that the motion for reconsideration thereof remained pending for more than nine months cannot be simply taken as evidence of petitioner's undue interest in the case considering the lack of evidence of any personal grudge, social ties or business affiliation with any of the parties to the case that could have impelled him to act as he did. There was likewise no evidence at all of any bribery that took place, or of any corrupt intention or questionable motivation. Accordingly, the OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty or

misconduct in office do not amount to a betrayal of public trust. Hence, the President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust. This is not to say, however, that petitioner is relieved of all liability for his acts showing less than diligent performance of official duties. Although the administrative acts imputed to petitioner fall short of the constitutional standard of betrayal of public trust, considering the OP's factual findings of negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the imposition of the corresponding administrative sanctions, if any. Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages and benefits corresponding to the period of his suspension. The Office of the President is vested with statutory authority to proceed administratively against petitioner Barreras-Sulit to determine the existence of any of the grounds for her removal from office as provided for under the Constitution and the Ombudsman Act. Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove her from office upon the averment that without the Sandiganbayan's final approval and judgment on the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions "tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) - causing undue injury to the Government or giving any private party any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent, petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no longer be any cause of complaint against her; if not, then the situation becomes ripe for the determination of her failings. The argument will not hold water. The incidents that have taken place subsequent to the submission in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only thing which remains to be done by the Sandiganbayan is to promulgate a judgment

imposing the proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses. On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan, thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten properties, ordered the corresponding government agencies to cause the transfer of ownership of said properties to the Republic of the Philippines. In the meantime, the Office of the Special Prosecutor (OSP) informed the Sandiganbayan that an Order70 had been issued by the Regional Trial Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010 Resolution had been substantially complied with, Major General Garcia manifested71 to the Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the criminal information against his wife and two sons. Major General Garcia's Motion to Dismiss,72 dated December 16, 2010 and filed with the Sandiganbayan, reads: 1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise be dismissed since the charges against them are anchored on the same charges against the Principal Accused. On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended. Upon Major General Garcia's motion, and with the express conformity of the OSP, the Sandiganbayan allowed him to post bail in both cases, each at a measly amount of P 30,000.00. The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the disciplinary authority's determination of the prosecutor's administrative liability is based on whether the plea bargain is consistent with the conscientious consideration of the government's best interest and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an agreement

which the government finds "grossly disadvantageous," could result in administrative liability, notwithstanding court approval of the plea bargaining agreement entered into. Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the procedure therefor, to wit: SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98) Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea bargain in this case is the evidence on record, then it is significant to state that in its earlier Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character that militates against the grant of bail." Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause which is sufficient to initiate a criminal case."76 Hence, in light of the apparently strong case against accused Major General Garcia, the disciplining authority would be hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case. The Court need not touch further upon the substantial matters that are the subject of the pending administrative proceeding against petitioner BarrerasSulit and are, thus, better left to the complete and effective resolution of the administrative case before the Office of the President. The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012 and

September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of the Internal Rules of the Court. Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the Members of the Court actually taking part in the deliberation to sustain any challenge to the constitutionality or validity of a statute or any of its provisions. WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of backwages corresponding to the period of suspension effective immediately, even as the Office of the Ombudsman is directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989. The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED. SO ORDERED. ESTELA M. PERLAS-BERNABE Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice ARTURO D. BRION Associate Justice DIOSDADO M. PERALTA Associate Justice LUCAS P. BERSAMIN Associate Justice MARIANO C. DEL CASTILLO Associate Justice ROBERTO A. ABAD Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE PORTUGAL PEREZ Associate Justice JOSE CATRAL MENDOZA Associate Justice BIENVENIDO L. REYES Associate Justice CERTIFICATION I certify that the conclusions in the above Decision had been reached in

consultation before the case was assigned to the writer of the opinion of the Court. Ma. LOURDES P. A. SERENO Chief Justice Footnotes 1 Annex "A," rollo ( G.R. No. 196231), pp. 72-86. 2 Annex "A," rollo (G.R. No. 196232), p. 26. 3 Annex "C," id. at 33. 4 Val Rodriguez, Grandstand Carnage, The Philippine Star, August 24, 2010 <http://www.philstar.com/Article.aspx?articleId=605631&publicationSubCateg oryId=63> (visited January 5, 2011). 5 Charge Sheet, rollo (G.R. No. 196231), p. 87. 6 Id. at 231. 7 Resolution dated August 26, 2008, id. at 233-235. 8 Id. at 128. 9 Id. at 153-158. 10 Id. at 203-216. 11 Annex "F," id. at 132-136. 12 Annex "N," id. at 244-249. 13 The President issued Joint Department Order No. 01-2010 creating the IIRC. 14 As quoted in the Petition in G.R. No. 196231, rollo, pp. 17-20. 15 Annex "Q," id. at 322. 16 R. A. No. 3019. 17 Rollo (G.R. No. 196231), pp. 324-346. 18 R.A. No. 6713. 19 Annex "W," rollo (G.R. No. 196231), pp. 386-408. 20 Annex "S," id. at 377. 21 Petition, id. at 8. 22 Annex "V," id. at 380-383. 23 Annex "A," id. at 72-86. 24 Annex "B," rollo (G.R. No. 196232), pp. 27-30. 25 Petition, rollo (G.R. No. 196231), pp. 23-24. 26 Petition, rollo (G.R. No. 196232), p. 10. 27 Ledesma v. Court of Appeals, 503 Phil. 396 (2005). 28 Office of the Ombudsman v. Masing and Tayactac, G.R. No. 165416, January 22, 2008, 542 SCRA 253. 29 De Leon, 2 Philippine Constitutional Law Principles and Cases, 855 (2004). 30 Bernas, S.J., The Intent of the 1986 Constitution Writers, 771 (1995). 31 Id. at 143-144. 32 Office of the Ombudsman v. Delijero, Jr., G.R. No. 172635, October 20, 2010, 634 SCRA 135. 33 Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) v. Executive Secretary Romulo, G.R. No. 160093, July 31, 2007, 528 SCRA 673, 682.

34 Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517, June 22, 2010, 621 SCRA 461, citing Land Bank of the Philippines v. AMS Farming Corporation, 569 SCRA 154, 183 (2008) and Mactan-Cebu International Airport Authority v. Urgello, 520 SCRA 515, 535 (2007). 35 See Comment of the Office of the Solicitor General, rollo (G.R. No. 196231), pp. 709-710. 36 321 Phil. 604 (1995). 37 Id. at 613-614 38 Id. 39 Supra note 31. 40 Section 23. Formal Investigation.xxxx (2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law. x x x 41 Supra note 31, at 146. 42 Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, 405 SCRA 264. 43 Id. 44 Sec.2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. 45 As quoted in Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, 493 Phil. 63, 77-80 (2005). 46 Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274. 47 Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, p. 305. 48 Aguirre, Jr. v. De Castro, 378 Phil. 714 (1999). 49 Cruz, Carlo L., The Law of Public Officers, 154-155 (1992). 50 Sec. 13, Article XI; De Leon, Hector, 2 Philippine Constitutional Law, 860 (2004), citing Concerned Officials of the MWSS v. Velasquez, 310 Phil. 549 (1995) and Garcia-Rueda v. Pascasio, 344 Phil. 323 (1997). 51 Bernas, S.J., The Intent of the 1986 Constitution Writers, 773-774 (1995). 52 De Leon, 2 Philippine Constitutional Law Principles and Cases, 857 (2004), citing Del. R.D. ROBLES, The Ombudsman, in C.R. Montejo, On the 1973 Constitution, 232. 53 Id. at 859-860. 54 397 Phil. 829, 831 (2000), cited in Angeles v. Desierto, 532 Phil. 647, 656 (2006). 55 Cayago v. Lina, 489 Phil. 735 (2005). 56 Libres v. NLRC, 367 Phil. 180 (1999).

57 Concerned Officials of MWSS v. Vasquez, 310 Phil. 549 (1995). 58 AMA Computer College-East Rizal v. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA 633, 654 citing Casimiro v. Tandog, 498 Phil. 660, 666 (2005). 59 OP Decision, p. 7, rollo (G.R. No. 196231), p. 78. 60 Funa, Dennis B., The Law on the Administrative Accountability of Public Officers, 509 (2010), citing Office of the Court Administrator v. Bucoy, A.M. No. P-93-953, August 25, 1994, 235 SCRA 588; Tolentino v. CA, 234 Phil. 28 (1987), Biak na Bato Mining Co. v. Tanco, 271 Phil. 339 (1991). 61 Rules of Court, Rule 133, Sec.5; Nicolas v. Desierto, 488 Phil. 158 (2004); Ang Tibay v. Court of Industrial Relations, 69 Phil 635 (1940). 62 Supra note 60, at 511. 63 Dadubo v. CSC, G.R. No. 106498, June 28, 1993, 223 SCRA 747. 64 Assistant Executive Secretary for Legal Affairs of the Office of the President v. Court of Appeals, 251 Phil. 26 (1989), citing Lovina v. Moreno, 118 Phil. 1401 (1963). 65 Joaquin G. Bernas, The 1987 Constitution of the Philippines: A Commentary, 992 (1996). 66 Records of the 1986 Constitutional Commission, Vol. II, p. 286. 67 Supra note at 65. 68 Records of the 1986 Constitutional Commission, Vol. II, pp. 283-284. 69 Id. at 286. 70 Annex "2" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), p. 212. 71 Annex "1," id. at 210-211 72 Annex "3," id. at 213-215. 73 Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233, citing People v. Villarama, Jr., 210 SCRA 246, 251-252 (1992). 74 People v. Villarama, Jr., G.R. No. 99287, June 23, 1992, 210 SCRA 246; People v. Parohinog, 185 Phil. 266 (1980); People v. Kayanan, 172 Phil. 728 (1978). 75 Annex "7" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), pp. 225-268. 76 Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 608; Cabrera v. Marcelo, 487 Phil. 427 (2004). The Lawphil Project - Arellano Law Foundation CONCURRING OPINION CARPIO, J.: Our Constitution does not impart a fixed and rigid concept of independence among the offices that it creates. While it declares certain bodies as "'independent", we cannot assume that the independence of the Ombudsman1 is the same as the independence of the Judiciary. Neither is the independence of the Constitutional Commissions the same as that of the National Economic and Development Authority, the Bangko Sentral ng Pilipinas or the Commission on Human Rights2. This Court cannot make a "one size fits all" concept of independence because the Constitution itself

differentiates the degree of independence of these bodies. In this case, the petitions seek to strike down Section 8(2) of Republic Act No. 6170 or the Ombudsman Act of 1989 which delegates to the President the power to remove a Deputy Ombudsman or the Special Prosecutor "for any of the grounds provided for the removal of the Ombudsman, and after due process." The provision allegedly compromises the independence of the Ombudsman by imposing an external disciplinary authority, namely the President. I agree with the ponencia that Section 8(2) of the Ombudsman Act does not violate the Constitution. The constitutional principle of independence does not obviate the possibility of a check from another body. After all, one of the constitutive principles of our constitutional structure is the system of checks and balances- a check that is not within a body, but outside of it. This is how our democracy operates - on the basis of distrust.3 I. Section 2, Article XI of the 1987 Constitution prescribes how all public officers and employees, both impeachable and non-impeachable, may be removed. Section 2 provides: The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Boldfacing and underscoring supplied) Section 2 of Article XI consists of two parts. The first sentence identifies the public officials who are subject to removal only by impeachment. The second sentence explicitly leaves to the discretion of Congress, through an implementing law, the removal of all other public officers and employees. In other words, by stating that all other non- impeachable officers and employees "may be removed from office as provided by law" - the Constitution expressly grants to Congress the power to determine the manner and cause of removal, including who will be the disciplinary authority, of nonimpeachable officers and employees. Clearly, Section 8(2) of the Ombudsman Act is valid and constitutional since Congress is expressly empowered to legislate such law pursuant to Section 2, Article XI of the Constitution. The original text of Section 24 of Article XI did not include the second sentence.5 Its subsequent inclusion was only meant to exclude "all other public officers and employees" from removal through impeachment. Otherwise, Congress would have the plenary power to remove public officers and employees through impeachment or through any other mode of removal. Thus, at the outset, the framers of the 1987 Constitution saw no need to textualize this power- for it was already taken for granted as part of the plenary power of Congress. However, to limit this plenary power of Congress,

the framers expressly excluded impeachment as a mode of removing "all other public officers and employees." This Court has repeatedly declared that the Constitution "confers plenary legislative x x x powers subject only to limitations provided in the Constitution."6 Thus, in inserting the second sentence in Section 8(2), Article XI of the 1987 Constitution, the framers intended to limit impeachment only to public officers enumerated in the first sentence of Section 2: MR. REGALADO. I propose to add in Section 2 as a last sentence thereof as already amended the following: ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT. The reason for the amendment is this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the legislature as it stands now from providing also that other officers not enumerated therein shall also be removable only by impeachment, and that has already happened. Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may be removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are, therefore, a privileged class on the level of the Supreme Court. In the Committee on Constitutional Commissions and Agencies, there are many commissions which are sought to be constitutionalized - if I may use the phrase - and the end result would be that if they are constitutional commissions, the commissioners there could also be removed only by impeachment. What is there to prevent the Congress later - because of the lack of this sentence that I am seeking to add - from providing that officials of certain offices, although nonconstitutional, cannot also be removed except by impeachment? THE PRESIDING OFFICER (Mr. Treas). What does the Committee say on the proposed amendment of Commissioner Regalado? MR. MONSOD. May we ask Commissioner Regalado a few questions? Does this mean that with this provision, the other officers in the case of the Sandiganbayan would not be removable by impeachment? MR. REGALADO. For the present and during the interim and until the new Congress amends P.D. No. 1606, that provision still stands. But the proposed amendment will not prevent the legislature from subsequently repealing or amending that portion of the law. Also, it will prevent the legislature from providing for favoured public officials as not removable except by impeachment. MR. MONSOD. Mr. Presiding Officer, the Committee is willing to accept the amendment of Commissioner Regalado. THE PRESIDING OFFICER (Mr. Treas). The proposed amendment of Commissioner Regalado has been accepted by the Committee.7 (Emphasis supplied) Clearly, Congress has the power and discretion to delegate to the President the power to remove a Deputy Ombudsman or the Special Prosecutor under Section 8(2) of the Ombudsman Act. While the 1987 Constitution already empowers the Ombudsman to investigate8 and to recommend to remove9 a

Deputy Ombudsman and the Special Prosecutor, this does not preclude Congress from providing other modes of removal. The Deputy Ombudsman and the Special Prosecutor are not among the impeachable officers under the 1987 Constitution. Thus, as expressly provided in Section 2, Article XI of the Constitution, they "may be removed from office as provided by law." Congress, pursuant to this constitutional provision and in the exercise of its plenary power, enacted the Ombudsman Act, conferring on the President the power to remove the Deputy Ombudsman and the Special Prosecutor as provided in Section 8(2) of the Ombudsman Act. However, the Ombudsman Act also grants the Ombudsman the authority to remove a Deputy Ombudsman and the Special Prosecutor through the general grant of disciplinary authority over all elective and appointive officials, in reiteration of Sections 13(1) and (2), Article XI of the Constitution:10 Section 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.11 In view of Section 8(2) and Section 21 of the Ombudsman Act, the legislative intent is to grant concurrent jurisdiction to the President and the Ombudsman in the removal of the Deputy Ombudsman and the Special Prosecutor. An "endeavor should be made to harmonize the provisions of a law x x x so that each shall be effective."12 This is not a hollow precept of statutory construction. This is based not only on democratic principle but also on the separation of powers, that this Court should not be so casual in voiding the acts of the popularly elected legislature unless there is a clear violation of the Constitution. II. When the 1987 Constitution speaks of "independent" bodies, it does not mean complete insulation from other offices. The text, history and structure of the Constitution contemplate checks and balances that result in the expansion, contraction or concurrence of powers, a coordinate functioning among different bodies of government that is not limited to the executive, legislative and judicial branches, but includes the "independent" constitutional bodies. The very structure of our government belies the claim that "independent" bodies necessarily have exclusive authority to discipline its officers. Not all constitutional declarations are enforceable by courts.13 We declared some of them as not self-executing such as the Declaration of Principles and State Policies under Article II.14 However, the independence of constitutional bodies is a judicially enforceable norm. Textually, the Constitution does not define the term "independent" and thus, the contours of this principle may not be immediately clear. The question therefore arises: to what extent can this Court enforce the independence of bodies like the Ombudsman? Can we

impose a particular notion of independence, amidst the silence of the constitutional text, to the extent of nullifying an act of Congress? The answer lies in the Constitution itself which circumscribes the exercise of judicial power. The Constitution clearly intended different degrees of independence among the "independent" bodies that it created. For some, such as the National Economic and Development Authority, Bangko Sentral ng Pilipinas and Commission on Human Rights, the operationalization of independence is constitutionally committed to the discretion of Congress.15 For the others, like the Civil Service Commission, the Commission on Audit and the Commission on Elections, legislative power is decidedly more limited,16 with express guarantees like fiscal autonomy17 and rule-making power on pleadings and practice.18 The Constitution does not enumerate in detail all the possible legislative powers. The Constitution has vested Congress with plenary powers- as the general repository of the police power of the State- to fill-in gaps in the Constitution for the governance of this country. However, when the Constitution expressly empowers Congress to do a specific act - like expressly empowering Congress to provide the mode of removal of all nonimpeachable government officers and employees, there can be no doubt whatsoever that Congress can enact such a law. Any reading of the 1987 Constitution does not warrant the conclusion that all bodies declared by the Constitution as "independent" have exclusive disciplinary authority over all their respective officials and employees. Unlike the Judiciary where such exclusivity is expressly provided for in the Constitution,19 there is no reason to read such provision in the Ombudsman where the Constitution is silent. On the contrary, the constitutional provision that non-impeachable officers and employees "may be removed from office as provided by law" removes any doubt that Congress can determine the mode of removal of non-impeachable officers and employees of "independent" bodies other than the Judiciary. An "independent" body does not have exclusive disciplinary authority over its officials and employees unless the Constitution expressly so provides, as in the case of the Judiciary. There are other constitutional bodies declared "independent,"20 but disciplinary authority is statutorily lodged somewhere else.21 Under the New Central Bank Act (Republic Act No. 7653), the President also has the power to remove a member of the Monetary Board on specified grounds.22 There is nothing anomalous in this mode of removal because the Constitution expressly authorizes the legislature to provide for such mode of removal. This Court cannot enforce a speculative notion of independence - that an "independent" body has exclusive disciplinary authority - for doing so would be a species of judicial legislation or a disguised constitutional amendment. III. This Court has no business limiting the plenary power of Congress unless the Constitution expressly so limits it. The fact that different constitutional bodies are treated differently under the Constitution shows that independence is a broadly delineated norm. With this level of generality, the constitutional

meaning of independence is only that of independent decision-making that is free from partisanship and political pressures. It does not even mean fiscal autonomy unless the Constitution says so.23 Thus, it is generally left to Congress to particularize the meaning of independence, subject only to specific constitutional limitations. Nothing in the Constitution tells us that an "independent" body necessarily has exclusive disciplinary authority over its officials and employees. A completely "independent" body is alien to our constitutional system. There is no office that is insulated from a possible correction from another office. The executive, legislative and judicial branches of government operate through the system of checks and balances. All independent constitutional bodies are subject to review by the courts. A fiscally autonomous body is subject to audit by the Commission on Audit, and Congress cannot be compelled to appropriate a bigger budget than that of the previous fiscal year.24 Section 8(2) of the Ombudsman Act is consistent with our system of checks and balances. The provision is a narrow form of delegation which empowers the President to remove only two officers in the Office of the Ombudsman, i.e. the Deputy Ombudsman and the Special Prosecutor. The proposition that an external disciplinary authority compromises the Ombudsman's independence fails to recognize that the Constitution expressly authorizes Congress to determine the mode of removal of all non-impeachable officers and employees. It also fails to recognize that under a system of checks and balances, an external disciplinary authority is desirable and is often the norm. In disciplinary cases, the 1987 Constitution empowers the Ombudsman to direct the proper disciplinary authority "to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith."25 This is further implemented by the Ombudsman Act which provides that "at its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees, which shall be determined within the period prescribed in the civil service law."26 Clearly, the Ombudsman is not constitutionally empowered to act alone. Congress can even authorize the Department of Justice or the Office of the President to investigate cases within the jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate public officers and employees who are under the disciplinary authority of heads of other bodies or agencies.27 The cases cited in the ponencia, i.e. Hagad v. Gozo-Dadofe28 and Office of the Ombudsman v. Delijero, Jr.29 - illustrate that concurrent jurisdiction does not impair the independence of the Ombudsman. Duplication of functions may not at all times promote efficiency, but it is not proscribed by the Constitution. Accordingly, I vote to DENY the petition in G.R. No. 196232, and to GRANT in part the petition in G.R. No. 196231, in accordance with the ponencia of Justice Estela M. Perlas-Bemabe. ANTONIO T. CARPIO

Associate Justice Footnotes 1 CONSTITUTIONS, Art. XI, Sec. 5: There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. 2 There are the bodies that the 1987 Constitution considers as "independent." See CONSTITUTIONS, Art. XI-A, Sec. 1; Art. XII, Secs. 9 and 20: Art. XIII, Sec. 17. 3 See J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (2002). 4 As amended and consolidated by the Committee on Accountability of Public Officers of the 1986 Constitutional Commission. 5 II RECORD, CONSTITUTIONAL COMMISSION 263 (26 July 1986). 6 Marcos v. Manglapus, 258 Phil. 479, 499 (1989); Vera v. Avelino, G.R. No. L-543, 31 August 1946, 77 Phil. 192; Ople v. Torres, G.R. No. 127685, 23 July 1998, 354 Phil. 948. 7 II RECORD, CONSTITUTIONAL COMMISSION 356-357 (28 July 1986). 8 CONSTITUTION, Art. XI, Sec. 13(1): Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. 9 CONSTITUTION, Art. XI, Sec. 13(3): Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis supplied)10 See notes 8 and 9. 11 R.A. No. 6770, Sec. 21. 12 Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948). See also Mactan-Cebu International Airport Authority v. Urgello, G.R. No. 162288, 4 April 2007, 520 SCRA 515, 535, citing Civil Service Commission v. Joson, Jr., G.R. No. 154674, 27 May 2004, 429 SCRA 773, 786. 13 Taada v. Angara, 338 Phil. 546 (1997); Manila Prince Hotel v. Government Service Insurance System, 335 Phil. 82 (1997); Kilosbayan, Inc. v. Morato, 316 Phil. 652 (1995). 14 Id. 15 CONSTITUTION, Art. XII, Secs. 9 and 20; Art. XIII, Sec. 17. 16 See CONSTITUTION, Art. IX-A, Sec. 3 (the salaries of the Chairman and the Commissioners are fixed by law but shall not be decreased during their tenure), Sec. 4 (appointment of other officials and employees in accordance with law) and Sec. 8 (the constitutional commissions may perform other functions as may be provided by law). 17 CONSTITUTION, Art. IX-A, Sec. 5. 18 CONSTITUTION, Art. IX-A, Sec. 6. 19 CONSTITUTION, Art. VIII, Sec. 6 ("The Supreme Court shall have administrative supervision over all courts and the personnel thereof.") and

Sec. 11 ("x x x The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon."). 20 Supra, note 2. 21 Id. 22 R.A. No. 7653, Sec. 10. Removal. - The President may remove any member of the Monetary Board for any of the following reasons: (a) If the member is subsequently disqualified under the provisions of Section 8 of this Act; or (b) If he is physically or mentally incapacitated that he cannot properly discharge his duties and responsibilities and such incapacity has lasted for more than six (6) months; or (c) If the member is guilty of acts or operations which are of fraudulent or illegal character or which are manifestly opposed to the aims and interests of the Bangko Sentral; or (d) If the member no longer possesses the qualifications specified in Section 8 of this Act. See also III RECORDS, CONSTITUTIONAL COMMISSION 611 (22 August 1986): THE PRESIDENT. Commissioner Rodrigo is recognized. MR. RODRIGO. Madam President, may I ask a question for clarification? The section says, "The Congress shall establish an independent central monetary authority." My question has reference to the word "independent." How is independence of this authority supported by the Constitution? In the case of the judiciary, the Members are independent because they have a fixed term and they may not be removed except by impeachment or some very difficult process. This applies to the different constitutional commissions. But in the case of this central monetary authority which we call "independent", how is this independence maintained? MR. VILLEGAS. The thinking is: Congress, in establishing that independent central monetary authority, should provide a fixed term. Actually that was contained in the original Davide amendment but we thought of leaving it up to Congress to determine that term- a fixed term of probably five years or seven years serving in the monetary board. MR. RODRIGO. Does this include that they may not be removed except by impeachment by the Congress? MR. VILLEGAS. Exactly. MR. RODRIGO. Just like the members of the other constitutional commissions? MR. VILLEGAS. Yes. That is why we say that they shall be subject to the same disabilities or disqualifications as the members of the constitutional commissions. MR. RODRIGO. Are we leaving that to Congress? MR. VILLEGAS. That is right. MR. RODRIGO: Thank you.

23 Commission on Human Rights Employees' Association v. Commission on Human Rights, G.R. No. 155336, 21 July 2006, 496 SCRA 226. 24 See CONSTITUTION, Art. VIII, Sec. 3; Art. IX-A, Sec. 5; Art. XI, Sec. 14. 25 CONSTITUTION, Art. XI, Sec. 13, par. (3). Emphasis supplied. 26 R.A. No. 6770, Sec. 23(2). 27 The Administrative Code of 1987 (Executive Order No. 292) provides that the heads of agencies are generally empowered to investigate and decide matters involving disciplinary actions against officers and employees under their jurisdiction. ADMINISTRATIVE CODE, BOOK V, Title I, Subtitle A, Chapter 7, Secs. 47, par. (2) and 48, par. (1). 28 G.R. No. 108072, 12 December 1995, 251 SCRA 242. 29 G.R. No. 172635, 20 October 2010, 634 SCRA 135. The Lawphil Project - Arellano Law Foundation CONCURRING AND DISSENTING OPINION BRION, J.: The present case consists of two consolidated petitions, G.R. No. 196231 and G.R. No. 196232. I concur with the ponencia's main conclusion that petitioner Emilio Gonzales III (in G.R. No. 196231, referred to as Gonzales or petitioner Gonzales) is not guilty of the charges leveled against him. But with due respect, I disagree with the conclusion that Section 8(2) of Republic Act (RA ) No. 6770 (which empowers the President to remove a Deputy Ombudsman or a Special Prosecutor) is constitutionally valid. The petition of Wendell Barreras-Sulit (G.R. No. 196232, referred to as Sulit or petitioner Sulit) commonly shares with G.R. No. 196231 the issue of the constitutionality discussed below, the administrative proceedings against Sulit should be halted and nullified as she prays for in her petition. G.R. No. 196231 is a petition questioning the validity of the administrative proceedings conducted by the Office of the President against Gonzales who was the Deputy Ombudsman for Military and Other Law Enforcement Offices. The action against him before the Office of the President consists of an administrative charge for Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty (under Section 22, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other pertinent Civil Service laws, rules and regulations), and of Misconduct in Office (under Section 3 of the Anti-Graft and Corrupt Practices Act [RA No. 3019).1 The administrative case against Gonzales was recommended by the Incident Investigation and Review Committee (IIRC) in connection with the hijacking of a tourist bus resulting in the death of the hijacker and of some passengers; the hijacker then accused Gonzales of illegal exactions and of delaying the disposition of his Ombudsman case. On March 31, 2011, the Office of the President found2 Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and penalized him with dismissal from office. In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in the Office of the Ombudsman, seeks to halt and nullify the ongoing administrative proceedings

conducted by the Office of the President against her. Sulit was charged with violating Section 3(e) of RA No. 3019 and for having committed acts and/or omissions tantamount to culpable violations of the Constitution, and betrayal of public trust. In behalf of the Office of the Ombudsman, Sulit entered into a plea bargain with Major General Carlos F. Garcia who had been charged with Plunder and Money Laundering. Because of the plea bargain, Sulit was required to show cause why an administrative case should not be filed against her. She raised in her Written Explanation of March 24, 2011 the impermissibility and impropriety of administrative disciplinary proceedings against her because the Office of the President has no jurisdiction to discipline and penalize her.3 The two petitions - G.R. No. 196231 and G.R. No. 196232 - share a common issue: whether the President has the power to discipline or remove a Deputy Ombudsman or a Special Prosecutor in the Office of the Ombudsman from office. While the ponencia resolves this issue in favor of the President, it is my considered view that the power to discipline or remove an official of the Office of the Ombudsman should be lodged only with the Ombudsman and not with the Office of the President, in light of the independence the Constitution guarantees the Office of the Ombudsman. The Office of the Ombudsman is a very powerful government constitutional agency tasked to enforce the accountability of public office rs. Section 21 of The Ombudsman Act of 1989 (RA No. 677 0) concretizes this constitutional mandate by providing that: Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis ours) The Ombudsman's duty to protect the people from unjust, illegal and inefficient acts of all public officials emanates from Section 12, Article XI of the Constitution. These broad powers include all acts of malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan politics4 and from fear of external reprisal by making it an "independent" office. Section 5, Article XI of the Constitution expressed this intent, as follows: Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. (Emphasis ours) It is in this light that the general authority of the Office of the President to

discipline all officials and employees the President has the authority to appoint,5 should be considered. In more concrete terms, subjecting the officials of the Office of the Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman's disciplinary authority, cannot but seriously place at risk the independence of the Ombudsman and her officials, and must consequently run counter to the independence that the Constitution guarantees the Office of the Ombudsman. What is true for the Ombudsman must be equally true, not only for her Deputies but for other lesser officials of that Office who act as delegates and agents of the Ombudsman in the performance of her duties. The Ombudsman can hardly be expected to place her complete trust in subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like the Philippines where graft and corruption is still a major problem for the government. For these reasons, Section 8(2) of RA No. 67706 (providing that the President may remove a Deputy Ombudsman) clearly runs against the constitutional intent and should, thus, be declared void. Significantly, the possible unconstitutional effects of Section 8(2) of RA No. 6770 were not unknown to the framers of this law. These possibilities were brought by then Senator Teofisto Guingona to the framers' attention as early as the congressional deliberations: Reacting thereto, Senator Guingona observed that this might impair the independence of the Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan xxx be not by the President but by the Ombudsman. xxxx Senator Guingona contended, however, that the Constitution provides for an independent Office of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies would be an encroachment on the independence of the Tanodbayan.7 Despite Senator Guingona's objections, Congress passed RA No. 6770 and the objected Section 8(2) into law.8 While it may be claimed that the congressional intent is clear after the Guingona objection was considered and rejected by Congress, such clarity and the overriding congressional action are not enough to insulate the assailed provision from constitutional infirmity if one, in fact, exists. This is particularly true if the infirmity relates to a core constitutional principle - the independence of the Ombudsman - that belongs to the same classification as the constitutionally-guaranteed independence that the Judiciary enjoys. To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) grants where the Constitution confers none.9 When exercised authority is drawn from a vacuum, more so when the authority runs counter to constitutional intents, this Court is obligated to intervene under the powers and duties granted and imposed on it by Article VIII of the Constitution.10 The alternative for the Court is to be remiss in the

performance of its own constitutional duties. More compelling and more persuasive than the reason expressed in the congressional deliberations in discerning constitutional intent should be the deliberations of the Constitutional Commission itself on the independence of the Ombudsman. Commissioner Florenz Regalado of the Constitutional Commission openly expressed his concerns on the matter, fearing that any form of presidential control over the Office of the Ombudsman would diminish its independence: In other words, Madam President, what actually spawned or caused the failure of the justices of the Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was due to two reasons: First, almost all their time was taken up by criminal cases; and second, since they were under the Office of the President, their funds came from that office. I have a sneaking suspicion that they were prevented from making administrative monitoring because of the sensitivity of the then head of that office, because if the Tanodbayan would make the corresponding reports about failures, malfunctions or omissions of the different ministries, then that would reflect upon the President who wanted to claim the alleged confidence of the people. xxxx It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of the Office of the President because it is now a constitutional creation, so that the insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity to render service to Juan de la Cruz. x x x. There is supposed to be created a constitutional office- constitutionalized to free it from those tentacles of politics- and we give it more teeth and have the corresponding legislative provisions for its budget, not a budget under the Office of the President. xxxx x x x. For that reason, Madam President, I support this committee report on a constitutionally created Ombudsman and I further ask that to avoid having a toothless tiger, there should be further provisions for statistical and logistical support.11 (Emphases ours.) The intention of the Constitutional Commission to keep the Office of the Ombudsman independent from the President could not have been made any clearer than when Commissioner Christian Monsod vehemently rejected the recommendation of Commissioner Blas Ople who had suggested to the Committee that the Office of the Ombudsman be placed under the Executive: MR. OPLE. x x x May I direct a question to the Committee? xxx Will the Committee consider later an amendment xxx, by way of designating the office of the Ombudsman as a constitutional arm for good government, efficiency of the public service and the integrity of the President of the Philippines, instead of creating another agency in a kind of administrative limbo which would be accountable to no one on the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we prepared the report, it was the opinion of the Committee- and I believe it still is- that it may not contribute to the effectiveness of this office of the Ombudsman precisely because many of the culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole purpose of the our proposal is precisely to separate those functions and to produce a vehicle that will give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the proposition.12 The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to remove and discipline members of the Office of the Ombudsman, or to exercise any power over them, would result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the integrity and competence of the very persons who can remove or suspend its members. Equally relevant is the impression that would be given to the public if the rule were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who appears to enjoy the President's favor, would be discouraged from approaching the Ombudsman with his complaint; the complainant's impression (even if misplaced), that the Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption and bureaucracy. These views, to my mind, demolish the concern raised in Congress to justify Section 8(2) of RA No. 6770- i.e., that vesting the authority to remove the Tanodbayan on the Ombudsman would result in mutual protection.13 This congressional concern, too, is a needless one as it is inconsistent with the system of checks and balance that our legal structure establishes. At the practical constitutional level, the Tanodbayan (now the Office of the Special Prosecutor) cannot protect the Ombudsman who is an impeachable officer, as the power to remove the Ombudsman rests with Congress as the representative of the people.14 On the other hand, should the Ombudsman attempt to shield the Tanodbayan from answering for any violation, the matter may be raised with the Supreme Court on appeal15 or by Special Civil Action for Certiorari,16 whichever may be applicable, in addition to the impeachment proceedings to which the Ombudsman may be subjected. For its part, the Supreme Court is a non-political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less questionable. In these lights, the checks and balance principle that underlies the Constitution can be appreciated to be fully operational. I find it significant that the Office of the Ombudsman is not the only

governmental body labeled as "independent" in our Constitution. The list includes the Judiciary,17 the Constitutional Commissions (Commission on Elections, Commission on Audit, and the Civil Service Commission),18 the Commission on Human Rights,19 a central monetary authority,20 and, to a certain extent, the National Economic Development Authority.21 These bodies, however, are granted various degrees of "independence" and these variations must be clarified to fully understand the context and meaning of the "independent" status conferred on the office of the Ombudsman. The independence enjoyed by the Office of the Ombudsman, by the Constitutional Commissions, and by the Judiciary shares certain characteristics - they do not owe their existence to any act of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy.22 For most, if not for all of these "independent" bodies, the framers of the Constitution intended that they be insulated from political pressure. As a checks and balance mechanism, the Constitution, the Rules of Court, and their implementing laws provide measures to check on the "independence" granted to the Constitutional Commissions and the Office of the Ombudsman; the Supreme Court, as the final arbiter of all legal questions, may review the decisions of the Constitutional Commissions and the Office of the Ombudsman, especially when there is grave abuse of discretion.23 Of course, foisted over the Members of the Supreme Court is the power of impeachment that Congress has the authority to initiate, and carry into its logical end a meritorious impeachment case.24 Such is the symmetry that our Constitution provides for the harmonious balance of all its component and "independent" parts. In Bengzon v. Drilon,25 we ruled on the fiscal autonomy of the Judiciary, and ruled against the interference that the President may bring. In doing so, we maintained that the independence, and the flexibility of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our legal system: The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. As in the case of the Office of the Ombudsman, the constitutional deliberations explain the Constitutional Commissions' need for independence. In the deliberations for the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-created Civil Service Commission, instead of one created by law, based on the precept that the effectivity of this body is dependent on its freedom from the tentacles of politics:

DELEGATE GUNIGUNDO x x x (b) because we believe that the Civil Service created by law has not been able to eradicate the ills and evils envisioned by the framers of the 1935 Constitution; because we believe that the Civil Service created by law is beholden to the creators of that law and is therefore not politics-free, not graftfree and not corruption-free; because we believe that as long as the law is the reflection of the will of the ruling class, the Civil Service that will be created and recreated by law will not serve the interest of the people but only the personal interest of the few and the enhancement of family power, advancement and prestige.26 The deliberations of the 1987 Constitution on the Commission on Audit, on the other hand, highlighted the developments in the past Constitutions geared towards insulating the Commission on Audit from political pressure: MR. JAMIR. x x x When the 1935 Constitution was enacted, the auditing office was constitutionalized because of the increasing necessity of empowering the auditing office to withstand political pressure. Finding a single Auditor to be quite insufficient to withstand political pressure, the 1973 Constitution established the Commission consisting of three members- a chairman and two commissioners.27 In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the Constitutional Commissions, which have been characterized under the Constitution as "independent," are not under the control of the President, even if they discharge functions that are executive in nature. Faced with a temporary presidential appointment in the Commission on Elections, this Court vigorously denied the President the authority to interfere in these constitutional bodies: The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission on Elections themselves without the participation of the President, however well-meaning. xxxx x x x. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. The Commission on Human Rights, also created by the Constitution as an "independent" office,29 enjoys lesser independence since it was not granted fiscal autonomy, in the manner fi scal autonomy was granted to the offices above-discussed. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution clearly expressed their desire to keep the Commission independent from the executive branch and other political leaders: MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept, he can advise us on how to reconcile his position with ours. The position of the committee is that we need

a body that would be able to work and cooperate with the executive because the Commissioner is right. Many of the services needed by this commission would need not only the cooperation of the executive branch of the government but also of the judicial branch of government. This is going to be a permanent constitutional commission over time. We also want a commission to function even under the worst circumstance when the executive may not be very cooperative. However, the question in our mind is: Can it still function during that time? Hence, we are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize the need for coordination and cooperation. We also would like to build in some safeguards that it will not be rendered useless by an uncooperative executive. xxxx MR. GARCIA. Thank you very much, Madame President. Before we address the procedural question which Commissioner Rodrigo requested, I would like to touch on a very important question which I think is at the very heart of what we are trying to propose- the independence of this Commission on Human Rights. xxx When I was working as a researcher for Amnesty International, one of my areas of concern was Latin America. I headed a mission to Colombia in 1980. I remember the conversation with President Julio Cesar Turbay Ayala and he told me that in Colombia, there were no political prisoners. This is a very common experience when one goes to governments to investigate human rights. From there, we proceeded to the Procuraduria General to the AttorneyGeneral, to the Ministry of Justice, to the Ministry of Defense, and normally the answers that one will get are: "There are no political prisoners in our country"; "Torture is not committed in this country." Very often, when international commissions or organizations on human rights go to a country, the most credible organizations are independent human rights bodies. Very often these are private organizations, many of which are prosecuted, such as those we find in many countries in Latin America. In fact, what we are proposing is an independent body on human rights, which would provide governments with credibility precisely because it is independent of the present administration. Whatever it says on the human rights situation will be credible because it is not subject to pressure or control from the present political leadership. Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if we have a Commission on Human Rights that would investigate and make sure that the rights of each one is protected, then we shall have a body that could stand up to any power, to defend the rights of individuals against arrest, unfair trial, and so on.30 (Emphases ours.) Similarly, the Constitution grants Congress the authority to establish an independent central monetary authority.31 Under these terms, this office is not constitutionally-created nor does it possess fiscal autonomy. When asked

what "independence" means in this provision, Commissioner Bernardo Villegas again reiterated the intention of various framers for it to be independent of the executive branch: MR. VILLEGAS. No, this is a formula intended to prevent what happened in the last regime when the fiscal authorities sided with the executive branch and were systematically in control of monetary policy. This can lead to disastrous consequences. When the fiscal and the monetary authorities of a specific economy are combined, then there can be a lot of irresponsibility. So, this word "independent" refers to the executive branch.32 The National Economic Development Authority, nominally designated as "independent," differs from the other similarly-described agencies because the constitutional provision that provides for its creation immediately puts it under the control of the executive.33 This differing shade of "independence" is supported by the statements made during the constitutional deliberations: MR. MONSOD. I believe that the word "independent" here, as we answered Commissioner Azcuna, was meant to be independent of the legislature because the NEDA under the present law is under the Office of the President. MR. COLAYCO. Yes. In other words, the members of that agency are appointed by the President? MR. VILLEGAS. That is right. MR. MONSOD. Yes. MR. VILLEGAS. The President heads the NEDA.34 Commissioner Monsod continues by explaining that they did not constitutionalize the National Economic Development Authority, and, in accordance with the second paragraph of Section 9, Article XII of the 1987 Constitution, even left to Congress the discretion to abolish the office: MR. MONSOD. During the Committee hearings, there were proposals to change the composition of the governing body not only of the Monetary Board but also of the NEDA. That is why if we notice in this Article, we did not constitutionalize the NEDA anymore unlike in the 1973 Constitution. We are leaving it up to Congress to determine whether or not the NEDA is needed later on. The idea of the Committee is that if we are going for less government and more private sector initiative, later on it may not be necessary to have a planning agency. Thus, it may not be necessary to constitutionalize a planning agency anymore. So this provision leaves room for the legislature not only to revise the composition of the governing body, but also to remove the NEDA once it is no longer needed in its judgment.35 These deliberative considerations make it abundantly clear that with the exception of the National Economic Development Authority, the independent constitutional bodies were consistently intended by the framers to be independent from executive control or supervision or any form of political influence. This perspective abundantly clarifies that the cases cited in the ponencia Hon. Hagad v. Hon. Gozodadole36 and Office of the Ombudsman v. Delijero, Jr.37 - are not in point. These cases refer to the disciplinary authority of the

Executive over a public school teacher and a local elective official. Neither of these officials belongs to independent constitutional bodies whose actions should not even be tainted with any appearance of political influence. In my view, the closest and most appropriate case to cite as exemplar of independence from executive control is Bautista v. Senator Salonga,38 where this Court categorically stated, with respect to the independent Commission on Human Rights, that the tenure of its Commissioners could not be placed under the discretionary power of the President: Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent - as the Commission on Human Rights - and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional.39 Also in point as another "independence" case is Atty. Macalintal v. Comelec,40 this time involving the Commission on Elections, which gave the Court the opportunity to consider even the mere review of the rules of the Commission on Elections by Congress a "trampling" of the constitutional mandate of independence of these bodies. Obviously, the mere review of rules places considerably less pressure on these bodies than the Executive's power to discipline and remove key officials of the Office of the Ombudsman. The caution of, and the strong words used by, this Court in protecting the Commission on Elections' independence should - in addition to those expressed before the Constitutional Commissions and in Congress in the course of framing RA No. 6770 - speak for themselves as reasons to invalidate the more pervasive authority granted by Section 8(2) of RA No. 6770. Thus, in the case of independent constitutional bodies, with the exception of the National Economic Development Authority, the principle that the President should be allowed to remove those whom he is empowered to appoint (because of the implied power to dismiss those he is empowered to appoint41) should find no application. Note that the withholding of the power to remove is not a stranger to the Philippine constitutional structure. For example, while the President is empowered to appoint the Members of the Supreme Court and the judges of the lower courts,42 he cannot remove any of them; the Members of the Supreme Court can be removed only by impeachment and the lower court judges can be removed only by the Members of the Supreme Court en banc. This is one of the modes by which the independence of the Judiciary is ensured and is an express edge of the Judiciary over the other "independent" constitutional bodies. Similarly, the President can appoint Chairmen and Commissioners of the Constitutional Commissions, and the Ombudsman and her Deputies,43 but

the Constitution categorically provides that the Chairmen of the Constitutional Commissions and the Ombudsman can only be removed by impeachment.44 The absence of a constitutional provision providing for the removal of the Commissioners and Deputy Ombudsmen does not mean that Congress can empower the President to discipline or remove them in violation of the independence that the Constitution textually and expressly provides.45 As members of independent constitutional bodies, they should be similarly treated as lower court judges, subject to discipline only by the head of their respective offices and subject to the general power of the Ombudsman to dismiss officials and employees within the government for cause. No reason exists to treat them differently. While I agree with Justice Carpio's opinion that the Constitution empowered Congress to determine the manner and causes for the removal of nonimpeachable officers, we cannot simply construe Section 2, Article XI of the Constitution to be a blanket authority for Congress to empower the President to remove all other public officers and employees, including those under the independent constitutional bodies. When the Constitution states that Congress may provide for the removal of public officers and employees by law, it does not mean that the law can violate the provisions and principles laid out in the Constitution. The provision reads: The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (emphasis and underscoring ours) The deliberations of the Constitutional Commissions, as quoted by Justice Carpio, explain an important aspect of the second sentence of Section 2, Article XI of the Constitution- that it was not the intent to widen the discretion of Congress in providing for the removal of a public officer; the intent was to limit its powers. The second sentence of Section 2, Article XI was provided to limit the public officers who can only be removed by impeachment. This limitation is one made necessary by past experiences. In an earlier law, Presidential Decree No. 1606, Congr ess provided, by law, that justices of the Sandiganbayan (who are not included in the enumeration) may only be removed by impeachment. Commissioner Regalado insisted on adding the second sentence of Section 2, Article XI of the Constitution to prevent Congress from extending the more stringent rule of "removal only by impeachment" to favored public officers.46 Ultimately, the question now before this Court goes back to whether the Constitution intended to allow political entities, such as the Executive, to discipline public officers and employees of independent constitutional bodies. If this is the intent, then Congress cannot have the authority to place the power to remove officers of these "independent constitutional bodies" under executive disciplinary authority unless otherwise expressly authorized by the

Constitution itself. I firmly take this position because the drafters repeatedly and painstakingly drafted the constitutional provisions on the independent constitutional bodies to separate them from executive control. Even after the other delegates made it clear that the easier path would be to place these bodies under the control of the President, the majority nevertheless voted against these moves and emphatically expressed its refusal to have these offices be made in any way under the disciplinary authority of the Executive. This constitutional intent rendered it necessary for the Constitution to provide the instances when executive interference may be allowed. In the case of the National Economic Development Authority, the Constitution explicitly provided that the President may exert control over this body. The Constitution was also explicit when it empowered the President to appoint the officers of the other "independent" bodies, and even then, this power was qualified: (1) in the cases of the Constitutional Commissions, by giving the chairmen and the members staggered terms of seven years to lessen the opportunity of the same President to appoint the majority of the body;47 and (2) in the case of the Ombudsman and his Deputies, by limiting the President's choice from a list prepared by the Judicial and Bar Council.48 Thus, we cannot maintain a light and cavalier attitude in our constitutional interpretation and merely say that the "independence" of the constitutional bodies is whatever Congress would define it at any given time. In the cases I have cited - Bautista v. Senator Salonga,49 Atty. Macalintal v. Comelec,50 and Brillantes, Jr. v. Yorac51 - this Court did not merely leave it to the Legislature or the Executive to freely interpret what "independence" means. We recognized in the term a meaning fully in accord with the intent of the Constitution. This intent was the same guiding light that drove this Court to rule that the President cannot determine the tenure of the Commission on Human Rights Chairman and Members; that Congress cannot enact a law that empowers it to review the rules of the Commission on Elections; and that the President cannot even make interim appointments in the Commission on Elections. After halting these lesser infractions based on the constitutional concept of "independence," it would be strange - in fact, it would be inconsistent and illogical for us - to rule at this point that Congress can actually allow the President to exercise the power of removal that can produce a chilling effect in the performance of the duties of a Special Prosecutor or of the Deputy Ombudsman. I draw attention to the fact that Sections 9, 10, 11 and 12, Article XI of the Constitution do not only refer to the Ombudsman, but also to the Ombudsman's Deputies. Section 9 provides for their appointment process. While the President can appoint them, the appointment should be made from the nominations of the Judicial and Bar Council and the appointments do not require confirmation. Section 10 gives the Ombudsman and the Deputies the same rank and salary as the Chairmen and Members of the Constitutional Commission. The salary may not be diminished during their term. Section 11 disqualifies them from reappointment and participation in the immediately

succeeding elections, in order to insulate them further from politics. Section 12 designates the Ombudsman and the Deputies as "protectors of the people" and directs them to act promptly on all complaints against public officials or employees.1wphi1 Under this structure providing for terms and conditions fully supportive of "independence," it makes no sense to insulate their appointments and their salaries from politics, but not their tenure. One cannot simply argue that the President's power to discipline them is limited to specified grounds, since the mere filing of a case against them can result in their suspension and can interrupt the performance of their functions, in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor removable by the President can be reduced to the very same ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices independent constitutional bodies. At the more practical level, we cannot simply turn a blind eye or forget that the work of the Office of the Ombudsman, like the Constitutional Commissions, can place the officers of the Executive branch and their superior in a bad light. We cannot insist that the Ombudsman and his Deputies look into all complaints, even against those against Executive officials, and thereafter empower the President to stifle the effectiveness of the Ombudsman and his or her Deputies through the grant of disciplinary authority and the power of removal over these officers. Common and past experiences tell us that the President is only human and, like any other, can be displeased. At the very least, granting the President the power of removal can be counterproductive, especially when other less political officers, such as the Ombudsman and the Judiciary, already have the jurisdiction to resolve administrative cases against public officers under the Office of the Ombudsman. Given the support of the Constitution, of the Records of the Constitutional Commission, and of previously established jurisprudence, we cannot uphold the validity of Section 8(2) of RA No. 6770 merely because a similar constitutionally-unsupported provision exists under RA No. 7653. Under our legal system, statutes give way to the Constitution, to the intent of its framers and to the corresponding interpretations made by the Court. It is not, and should not be, the other way around. I join the ponente in declaring that the Deputy Ombudsmen and Special Prosecutors should not escape accountability for their wrongdoing or inefficiency. I differ only in allowing the President, an elective official whose position is primarily political, to discipline or remove members of independent constitutional bodies such as the Office of the Ombudsman. Thus, the administrative proceedings conducted by the Office of the President against petitioner Gonzales should be voided and those against petitioner Sulit discontinued. Lastly, while I find the proceedings before the Office of the President constitutionally infirm, nothing in this opinion should prevent the Ombudsman from conducting the proper investigations and, when called for, from filing the

proper administrative proceedings against petitioners Gonzales and Sulit. In the case of Gonzales, further investigation may be made by the Ombudsman, but only for aspects of his case not otherwise covered by the Court's Decision. ARTURO D. BRION Associate Justice Footnotes 1 Rollo, Vol. 1, p. 322. 2 Id. at 72-86. 3 Rollo, Vol. 2, p. 8. 4 See Department of Justice v. Hon. Liwag, 491 Phil. 270, 283 (2005); and Deloso v. Domingo, G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551. 5 Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 726 (1999); Hon. Bagatsing v. Hon. Melencio-Herrera, 160 Phil. 449, 458 (1975); and Lacson v. Romero, 84 Phil. 740, 749 (1949). 6 Section 8. Removal; Filling of Vacancy.xxxx (2) A Deputy or the Special Prosecutor may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process. 7 Ponencia, p. 22. 8 Id. at 22-23. 9 Bautista v. Senator Salonga, 254 Phil. 156, 179 (1989). 10 CONSTITUTION, Article VIII, Sections 1 and 5(2). 11 Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294. 12 Id. at 294. 13 Ponencia, p. 22. 14 CONSTITUTION, Article XI, Section 2. 15 RA No. 6770, Section 27. 16 RULES OF COURT, Rule 65. 17 CONSTITUTION, Article VIII, Sections 1, 2, 3, 6, 10 and 11. 18 Id., Article IX(A), Section 1. 19 Id., Article XIII, Section 17(1). 20 Id., Article XII, Section 20. 21 Ibid. 22 Id., Article VIII, Section 3; Article IX(A), Section 5; and Article XI, Section 14. 23 Id., Article VIII, Section 5. 24 Id., Article XI, Section 2. 25 G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150. 26 Speech, Session of February 18, 1972, as cited in "The 1987 Constitution of the Republic of the Philippines: A Commentary" by Joaquin Bernas, 2003 ed., p. 1009. 27 Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-

533. 28 G.R. No. 93867, December 18, 1990, 192 SCRA 358, 361. 29 Section 17(1), Article XIII of the 1987 Constitution reads: Section 17. (1) There is hereby created an independent office called the Commission on Human Rights. 30 Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749. 31 Section 20, Article XII of the 1987 Constitution reads: Section 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. 32 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 268. 33 Section 9, Article 12 of the 1987 Constitution reads: Section 9. The Congress may establish an independent economic and planning agency headed by the President, which shall, after consultations with the appropriate public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. Until Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government. 34 Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 263. 35 Id. at 263-264. 36 321 Phil. 604 (1995). 37 G.R. No. 172635, October 20, 2010, 634 SCRA 135. 38 Supra note 9. 39 Id. at 183-184. 40 453 Phil. 586, 658-659 (2003). 41 Supra note 5. Section 17, Article VII, and Section 4, Article X of the Constitution likewise provide that: Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. Section 4. The President of the Philippines shall exercise general supervision over local governments. 42 CONSTITUTION, Article VIII, Section 9. 43 Id., Article IX(B), Section 1(2); Article IX(C), Section 1(2); Article IX(D), Section 1(2); and Article XI, Section 9. 44 Id., Article XI, Section 2. 45 Id., Article IX(A), Section 1 and Article XI, Section 5 read: Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit. Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and

Mindanao. A separate Deputy for the military establishment may likewise be appointed. 46 Record of the Constitutional Commission, Vol. 2, July 28, 1986, p. 356 reads: MR. REGALADO. xxx The reason for the amendment is this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the legislature as it stands now from providing also that other officers not enumerated therein shall also be removable only by impeachment, and that has already happened. Under Section 1 of P.D. No,, 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may be removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are, therefore, a privileged class xxx xxxx MR. REGALADO. xxx But the proposed amendment with not prevent the legislature from subsequently repealing or amending that portion of the law PD No. 1606. Also, it will prevent the legislature from providing for favored public officials as not removable except by impeachment. 47 CONSTITUTION, Article IX-B, C, and D, Section 1(2). 48 Id., Article XI, Section 9. 49 Supra note 9. 50 Supra note 39. 51 Supra note 27. The Lawphil Project - Arellano Law Foundation DISSENTING OPINION ABAD, J.: This case is not too complicated. Section 8(2) of Republic Act (R.A.) 6770 gave the Office of the President (OP) the power to investigate and remove from office the Deputies Ombudsman and the Special Prosecutor who work 9irectly under the supervision and control of the Ombudsman. Using this power, the OP investigated and found petitioner Emilio Gonzales III, Deputy I Ombudsman . for the Military and Other Law Enforcement Offices, guilty of gross neglect in handling the pending case against a police officer who subsequently hijacked a tourist bus. Using the same power, the OP initiated a similar investigation of a case against petitioner Wendell Barreras-Sulit, the Special Prosecutor, for alleged corruption, she having allowed her I office to enter into a plea-bargaining agreement with Major General Carlos F. Garcia who had been charged with plunder. Gonzales and Sulit filed separate petitions, the first in G.R. 196231 and the second in G.R. 196232. Gonzales assails the correctness of the OP decision that dismissed him from the service. Both challenges the constitutionality of Section 8(2) of R.A. 6770 which gave the President the power to investigate and remove them. The ponencia would have the Court uphold the constitutionality of Section 8(2 , R.A. 6770 that empowers the President to investigate and remove Deputy Ombudsman Gonzales and Special Prosecutor Sulit from office. It argues

that, although the Constitution expressly provides for the removal of (e Ombudsman himself, which is by impeachment, it fails to pro vide a procedure for the removal from office of a Deputy Ombudsman or Special Prosecutor. By enacting Section 8(2) of R.A. 6770, Congress simply filled in a void that the Constitution itself authorizes. The ponencia relies on Section 2, Article XI of the Constitution for support: Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Emphasis ours) The removal from office of a Deputy Ombudsman or a Special Prosecutor, says the ponencia, falls in the category of public officers and employees that "may be removed from office as provided by law." True enough, the above Section 2 above provides that only the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed by impeachment and that other public officers and employees may be removed by law. But this cannot literally be taken to mean that Congress may authorize the President to investigate and remove all non-impeachable public officers and employees. Surely, Congress may not authorize the President to exercise this power against those that the Constitution expressly or implicitly shields from his influence or intervention. For instance, Congress cannot authorize the President to remove lower court judges, although they are not subject to impeachment, since such authority is reserved by the Constitution to the Supreme Court.1 Further, as the Court held in Bautista v. Salonga,2 although the Chairman and Members of the Commission on Human Rights are not impeachable public officials, their terms cannot be made to depend on the pleasure of the President since the Constitution perceives them as exercising functions independent of him. Actually, there was no existing "void" in the matter of the removal of the Deputy Ombudsman and the Special Prosecutor when Congress enacted R.A. 6770. Administrative Code of 1987, then in force, already vested in heads of offices, including the Ombudsman, the power to investigate and take disciplinary action against all officers and employees under him, the Deputy Ombudsman and the Special Prosecutor included.3 In subsequently enacting R.A. 6770, Congress in effect removed such power of investigation and removal, insofar as the Deputy Ombudsman and the Special Prosecutor were concerned, from the Ombudsman and transferred the same to the President. As will shortly be shown below, such wresting of power from the Ombudsman is an appalling blow to his constitutionally mandated independence from the influence and threats of the other departments and agencies of government.

Section 5, Article XI of the 1987 Constitution provides: Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. (Emphasis supplied) The Constitution has reasons for making the Office of the Ombudsman "independent." Its primordial duty is to investigate and discipline all elective and appointive government officials.4 Specifically, Section 13, Article XI of the Constitution vests in that Office the absolute power to investigate any malfeasance, misfeasance, or non-feasance of public officers or employees. This function places it a notch higher than other grievance-handling, investigating bodies. With the exception of those who are removable only by impeachment, the Office of the Ombudsman can investigate and take action against any appointive or elected official for corruption in office, be they Congressmen, Senators, Department Secretaries, Governors, Mayors, or Barangay Captains. Thus, the Office of the Ombudsman needs to be insulated from the pressures, interventions, or vindictive acts of partisan politics.5 The Court has itself refrained from interfering with the Office of the Ombudsman's exercise of its powers. It is not the Court but the Ombudsman who is the champion of the people and the preserver of the integrity of public service.6 The Office of the Ombudsman, which includes the Deputy Ombudsman and the Special Prosecutor, cannot be beholden to or fearful of any one, the President included.7 The power to impeach is a function of check and balance under the Constitution. But the power to remove "public officers and employees" from office, in the realm of administrative law, is a function of supervision, if not control. Keeping the Deputies in the Office of the Ombudsman and the Special Prosecutor independent as the Constitution commands and subjecting them to the President's control or supervision are incompatible ideas. To say that the Deputy Ombudsman and the Special Prosecutor will remain independent of the President notwithstanding that he can investigate and remove them from office at any time is the equivalent of saying that monkeys grow out of trees. If there is any one that the holder of public office fears, it is that person who has the power to remove him. If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770, then the Deputy Ombudsman and the Special Prosecutor will be able to openly defy the orders of the Ombudsman and disregard his policies without fear of disciplinary sanction from him. The law makes them subject to investiga4on and removal only by the President. It is him they have to obey and will obey. Surely, this is not what the Constitution contemplates in an "independent" Office of the Ombudsman. The present cases are precisely in point. The Ombudsman did not herself appear to regard Gonzales and Sulit's actuations in the subject matters of the

cases against them worthy of disciplinary action. But, given that the Secretary of Justice, an alter ego of the President, took an opposite view, the President deigned to investigate them. In effect, the President is able to substitute his judgment for that of the Ombudsman in a matter concerning function of the latter's office. This gives the President a measure of control over the Ombudsman's work. From here on, if the Court chooses to uphold the constitutionality of Section 8(2 of R.A. 6770, the Deputy Ombudsman and the Special Prosecutor should be consulting the Office of the President or the Secretary of Justice before they act in any case in which the latter has an interest. This is the ludicrous and unpalatable situation that the framers of the Constitution envisaged and sought to avoid when they granted the Office of the Ombudsman independence from others who wield governmental powers.8 I, therefore, vote to grant the petitions, declare Section 8(2) of Republic Act 6770 that empowers the President to remove the Deputy Ombudsman and the Special Prosecutor unconstitutional and void, annul the decision of he Office of the President against Deputy Ombudsman Emilio Gonzales III dated March 31, 2011, and permanently enjoin that Office from further proceeding with the administrative case against Special Prosecutor Wendell BarrerasSulit. ROBERTO A. ABAD Associate Justice Footnotes 1 Section 11, Article VIII of the 1987 Constitution "The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon." (Emphasis ours) 2 254 Phil. 156, 183-184 (1989). 3 Sec. 47, par. (2), Chapter 6, Subtitle A, Title IX. 4 The Ombudsman Act of 1989, Section 21.

5 Department of Justice v. Liwag, 491 Phil. 270, 283 (2005). 6 Dimayuga v. Office of the Ombudsman, 528 Phil. 42, 48 (2006). 7 Id. 8 Section 12, Article XI of the 1987 Constitution. The Lawphil Project -- Arellano Law Foundation Digest G.R. No. 196231 September 4, 2012 EMILIO A. GONZALES III, vs.

OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting throughand represented by EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR x-----------------------x G.R. No. 196232 WENDELL BARRERAS-SULIT, Petitioner, vs. OFFICE OF THE PRESIDENT . PERLAS-BERNABE, J.: These two petitions have been because they raise a common thread of issues relating to thePresident's exercise of the power to remove from office herein petitioners who claim the protective cloak of independence of the constitutionally-created office to which they belong - theOffice of the Ombudsman. The cases, G.R. No. 196231 and G.R. No. 196232 primarily seeks to declare as unconstitutionalSection 8(2) of Republic Act (R.A.) No. 6770, otherwise known as the Ombudsman Act of 1989,which gives the President the power to dismiss a Deputy Ombudsman of the Office of theOmbudsman . FACTS: G.R. No. 196231: A formal charge for Grave Misconduct (robbery, grave threats, robbery extortion and physical injuries) was filed before PNP-NCR against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza and four others. Private complainant, Christian M. Kalaw, before the Office of the City Prosecutor, filed a similar charge. While said cases were still pending, the Office of the Regional Director of the National Police Commission (NPC) turned over, upon the request of petitioner Gonzales III, all relevant documents and evidence inrelation to said case to the Office of the Deputy Ombudsman for appropriate administrative adjudication. Subsequently a case for Grave Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers in the Office of the Ombudsman. Meanwhile, the case filed before the Office of the city Prosecutor was dismissed upon a finding that the material allegations made by the complainant had not been substantiated "by any evidence at all to warrant the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the PNP issued a Resolution recommending the dismissal without prejudice of the administrative case against the same police officers, for failure of the complainant to appear in three (3) consecutive hearings despite due notice. However, upon the recommendation of petitioner Gonzales III, a Decision finding P/S Insp. Rolando Mendoza and his fellow police officers guilty of Grave Misconduct was approved by the Ombudsman. Mendoza and his colleagues filed for a motion for reconsideration which was forwarded to Ombudsman Gutierrez for final approval, in whose office it remained pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of

foreign tourists on that fateful day of August 23, 2010 in adesperate attempt to have himself reinstated in the police service. In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight Hong Kong Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public outcry against the blundering of government officials prompted the creation of the Incident Investigation and Review Committee (IIRC). It was tasked to determine accountability for the incident through the conduct of public hearings and executive sessions. The IIRC found Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction precipitated the desperate resort to hostage-taking. Petitioner was dismissed from service. Hence the petition. G.R. No. 196232: Acting Deputy Special Prosecutor of the Office of the Ombudsman charged Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and Timothy Mark Garcia and several unknown persons with Plunder and Money Laundering before the Sandiganbayan. The Sandiganbayan denied Major General Garcia's urgent petition for bail holding that strong prosecution evidence militated against the grant of bail. However, the government, represented by petitioner, Special Prosecutor Barreras-Sulit and sought the Sandiganbayan's approval of a Plea Bargaining Agreement ("PLEBARA") entered into with the accused. The Sandiganbayan issued a Resolution finding the change of plea warranted and the PLEBARA compliant with jurisprudential guidelines. Outraged by the backroom deal that could allow Major General Garcia to get off the hook with nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his culpability for serious public offenses, the House of Representatives' Committee on Justice conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the Committee on Justice passed and adopted Committee Resolution No. 3, recommending to the President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate charges against her Deputies and Assistants before the appropriate government office for having committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal of public trust, which are violations under the Anti- Graft and Corrupt Practices Act and grounds for removal from office under the Ombudsman Act.Hence the petition. ISSUE: Whether the Office of the President has jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special Prosecutor who belong to theconstitutionally-created Office of the Ombudsman. HELD: YES. The Ombudsman's administrativedisciplinary power over a DeputyOmbudsmanand Special Prosecutor is not exclusive. While the Ombudsman's authority to discipline administratively is extensive and covers all government officials, whether appointive or elective, with the exception only of those

officials removable by impeachment such authority is by no means exclusive. Petitioners cannot insist that they should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while Section 21 of R.A. 6770 declares the Ombudsman's disciplinary authority over all government officials, Section 8(2), on the other hand, grants the President express power of removal over a Deputy Ombudsman and a Special Prosecutor. A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special Prosecutor, respectively. Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section 21 - in the same Organic Act was to provide for an external authority, through the person of the President, that would exercise the power of administrative discipline over the Deputy Ombudsman and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the Ombudsman over all government officials and employees. Such legislative design is simply a measure of "check and balance" intended to address the lawmakers' real and valid concern that the Ombudsman and his Deputy may try to protect one another from administrative liabilities. By granting express statutory power to the President to remove a Deputy Ombudsman and a Special Prosecutor, Congress merely filled an obvious gap in the law. While the removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by impeachment under Section 2 of the same Article, there is, however, no constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in the law without running afoul of any provision in the Constitution or existing statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to impeachment. The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is Implied from his Power to Appoint. In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor, Congress simply laid down in express terms an authority that is already implied from the President's constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman. The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog looking into abuses and irregularities that affect the general morale and professionalism in the military is certainly of primordial importance in relation to the President's own role as Commander-in-Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the President concurrent disciplinary authority over the Deputy Ombudsman for the military and other law enforcement offices. Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the Independence of the Office of the Ombudsman. he claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with was

intended to free it from political considerations in pursuing its constitutional mandate to be a protector of the people. What the Constitution secures for the Office of the Ombudsman is, essentially , political independence. This means nothing more than that "the terms of office, the salary, the appointments and discipline of all persons under the office" are "reasonably insulated from the whims of politicians. " Petitioner Gonzales may not be removed from office where the questioned acts, falling short of constitutional standards, do not constitute betrayal of public trust. Petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the Ombudsman without citing any reason therefore cannot, by itself, be considered a manifestation of his undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking cognizance of cases upon the request of concerned agencies or private parties is part and parcel of the constitutional mandate of the Office of the Ombudsman to be the "champion of the people ."The factual circumstances that the case was turned over to the Office of the Ombudsman upon petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even without the private complainant verifying the truth of his statements; that the decision was immediately implemented; or that the motion for reconsideration thereof remain depending for more than nine months cannot be simply taken as evidence of petitioner's undue interest in the case considering the lack of evidence of any personal grudge, social ties or business affiliation with any of the parties to the case that could have impelled him to act as he did. There was likewise no evidence at all of any bribery that took place, or of any corrupt intention or questionable motivation. The OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust. Hence, the President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust. The Office of the President is vested with statutory authority to proceed administratively against petitioner Barreras-Sulit to determine the existence of any of the grounds for her removal from office as provided for under the Constitution and the Ombudsman Act.WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 isREVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATEDwithpayment of backwages corresponding to the period of suspension effective immediately, evenas the Office of the Ombudsman is directed to proceed with the investigation in connection withthe above case against petitioner. In G.R. No. 196232, WeAFFIRM the continuation of OP-DCCase No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts andomissions tantamount to culpable violation of the Constitution and a betrayal of public trust, inaccordance with Section 8(2) of the Ombudsman Act of 1989. The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED

11. UY V. SANDIGANBAYAN 1999 Uy vs Sandiganbayan (1999) FACTS: On July 2, 1991, six (6) informations for estafa through falsification of official documents and one (1) information for violation of Section 3 (e), R.A. No. 3019, as amended, were filed with the Sandiganbayan against petitioner and nineteen (19) co-accused, namely: (Ret.) Bgen. Mario S. Espina (then Assistant Secretary for Installations and Logistics, Department of National Defense), (Ret.) Rear Admiral Simeon M. Alejandro (then Flag Officer in Command, Philippine Navy), CDR Rodolfo Guanzon, CDR Erlindo A. Erolin, CAPT. Manual Ison (then Commander of the Naval Supply Center, Philippine Navy), CAPT. Andres Andres, LCDR Gilmer B. Batestil, LCDR Jose Alberto I. Velasco, Jr., LTSG Edgar L. Abogado, LT. Teddy O. Pan, LT. Ronald O. Sison, Reynaldo Paderna (Chief Accountant), Antonio Guda (Supply Accountable Officer, Fort San Felipe, Cavite, Philippine Navy), Loida T. Del Rosario (Typist), Marissa Bantigue (owner of MAR GEN Enterprise), Avelina Avila (owner of Avelina Avila General Merchandise), Jenis B. Bantigue (owner of JAB GEN Merchandise), Maria M. Capule (owner of MM Capule Enterprise) and Andrea C. Antonio (owner of AC Antonio Enterprise). On September 20, 1991, the Sandiganbayan issued an Order[2] directing a comprehensive re-investigation of the cases against all the twenty (20) accused. After conducting the re-investigation, the Special Prosecutor issued an Order[3] dated November 14, 1991 recommending that the informations for estafa through falsification of official documents be withdrawn and in lieu thereof, informations for violation of Section 3 (e) of R.A. No. 3019, as amended, be filed against eleven (11) accused,[4] which included the petitioner. In a Memorandum[5] dated December 5, 1991, Special Prosecutor Aniano A. Desierto reduced the number of those to be charged under R.A. No. 3019, as amended, to five (5),[6] including petitioner. Acting on the separate motions for reconsideration of the five (5) remaining accused, the Special Prosecutor issued an Order[7] dated February 18, 1992 dropping two (2) more names[8] from the five (5) officers recommended for prosecution, and recommending that six (6) separate informations for violation of Section 3(e), R.A. 3019, as amended, be filed against the petitioner, LCMDR. Rodolfo Guanzon and LT. Teddy Pan. Except for the variance in the Purchase Order numbers involved and the Payees,[9] the six (6) amended informations[10] filed by Special Prosecutor Officer III Roger C. Berbano, Sr. recite identical allegations, viz: That on or about November 1985, and for sometime prior or subsequent thereto, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, CDR. Rodolfo Guanzon, being then the Procurement Officer, Philippine Navy, LCDR. George Uy, being then the Assistant Chief of Naval Staff Comptrollership, Philippine Navy and Lt. Teddy O. Pan, being then the Naval Group Inspector, Philippine Navy, all public officials, and committing the offense in relation to their office, did then and there wilfully, unlawfully and criminally, through evident bad faith or gross inexcusable negligence, cause undue injury to the

Government, and in the exercise of their separate official functions, to wit: accused Guanzon initiated/prepared the Abstract of Canvass and Recommendation of Awards, Certificate of Emergency Purchase and Reasonableness of Price, signed the PO, DV, validated PO No. x x x, accused Uy signed the DV in behalf of the Assistant Chief of Naval Comptrollership, accused Pan as N6 conducted the pre-audit and affixed his signature on the same P.O., the Sales Invoice and Technical Inspection Report -- which documents said accused had the duty to check/verify/examined, thereby acting or omitting to act in a situation where the re is a duty to act, in that only 100 seal rings were ordered at a unit price of P98.70, yet 1,000 pieces appear to have been sold with total price of P98,700.00, hence there was gross error in multiplication as shown on the face of the aforesaid PO and other supporting documents, resulting to an overpayment of P88,930.00 to x x x, thereby depriving the Government/Philippine Navy of the use thereof until its remittance/return to the Government/Philippine Navy by x x x in December, 1991. ISSUES: 1) Whether or not the Sandiganbayan has jurisdiction over the subject criminal cases or the person of the petitioner; 2) Whether or not the respondents Ombudsman and Special Prosecutor have the authority to file the questioned amended information; 3) Whether or not the act or omission charged constitutes an offense. HELD: On the issue of jurisdiction, petitioner and the Solicitor General submit that it is the court-martial, not the Sandiganbayan, which has jurisdiction to try petitioner. Emphasizing the fundamental doctrine that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action, they claim that at the time the amended information were filed on July 2, 1991, the controlling law on the jurisdiction over members of the Armed Forces of the Philippines is P.D. 1850, Providing for the trial by courts -martial of members of the Integrated National Police and further defining the jurisdiction of courts-martial over members of the Armed Forces of the Philippines (which took effect on October 4, 1982), as amended by P.D. 1952 (which took effect in September of 1984). Petitioner and the Solicitor General concede the subsequent passage of Republic Act No. 7055, An Act Strengthening Civilian Supremacy over th e military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees (which took effect on July 13, 1991) which expressly repealed P.D. 1850. Section 1 of R.A. No. 7055. It is the regional trial court that has jurisdiction over the offense charged. Under Section 9 of R. A. No. 3019, as amended, the commission of any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than SIX YEARS AND ONE MONTH or FIFTEEN YEARS. The indictment against petitioner cannot fall within the jurisdiction of the metropolitan trial courts, municipal trial courts and municipal circuit trial courts because under Republic Act No. 7691 which amended certain provisions of Batas

Pambansa Blg. 129 by expanding the jurisdiction of said inferior c ourts, they exercise exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof x x x. This draws the case into the domain of the regional trial courts which, under Section 20 of Batas Pambansa Blg. 129, shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cog nizance of by the latter. It is not correct that under R.A. No. 7055, the courts-martial retain jurisdiction over petitioners case since the offense for which he is charged is service -connected. The second paragraph of Section 1 of R. A. No. 7055 limit s the nature of service-connected crimes or offenses to those defined only in Articles 54 to 70, 72 to 92 and 95 to 97 of Commonwealth Act No. 408, as amended,[14] to wit: Fraudulent enlistment, making Unlawful Enlistment, False Muster, False Returns, Desertion, Advising or Aiding Another to Desert, Entertaining a Deserter, Absence Without Leave, Disrespect towards the President, Vice-President and National Assembly, Disrespect toward Superior Officer, Insubordinate Conduct toward Non-Commissioned Officer, Mutiny or Sedition, Failure to Suppress Mutiny or Sedition, Quarrels; Frays; Disorders, Breaking an Arrest or Escaping from Confinement, Refusal to Receive and Keep Prisoners, Failure to make a Report of Prisoners Received, Releasing prisoners without proper authority, Failure to Deliver offenders to Civil Authorities, Misbehavior Before the Enemy, Subordinates Compelling Commander to Surrender, Improper Use of Countersign, Forcing a Safeguard, Neglect or Wrongful Appropriation of Captured Property, Dealing in Captured or Abandoned Property, Relieving, Corresponding with, or Aiding the Enemy, Spies, Damage/Wrongful Disposition of Military Property, Waste or Unlawful Disposition of Military Property, Drunk on Duty, Misbehavior of Sentinel, Personal Interest in Sale of Provisions, Intimidation of Persons Bringing Provisions, Good Order to be Maintained and Wrong Redressed, Provoking Speeches or Gestures, Dueling, Fraud against the Government Affecting Matters and Equipment, Conduct Unbecoming an Officer and Gentleman, and All Disorders and Neglects to the Prejudice of Good Order and Military Discipline and All Conduct of a Nature to Bring Discredit Upon the Military Services. None of these offenses relates to acts or omissions constituting a violation of Section 3 (e), R.A. No. 3019. The Resolution of the Sandiganbayan dated June 10, 1992 in Criminal Cases Nos. 1690516910, is hereby ANNULLED and SET ASIDE. In lieu thereof, the Sandiganbayan is ordered to dismiss Criminal Cases Nos. 16905-16910, and to inform this Court of the action taken hereon within fifteen (15) days from finality of this decision. No costs.

[G.R. Nos. 105965-70. August 9, 1999] GEORGE UY, petitioner, vs. SANDIGANBAYAN, OMBUDSMAN and ROGER C. BERBANO, SR., Special Prosecution Officer III, Office of the Special Prosecutor, respondents. DECISION PARDO, J.: This petition for certiorari and prohibition seeks to annul and set aside the resolution[1] of the Sandiganbayan denying petitioners motion to quash the six (6) informations charging him with violation of Section 3 (e), R.A. No. 3019, as amended, and to permanently enjoin the respondents from proceeding with the criminal cases insofar as petitioner is involved. At times material hereto, petitioner was Deputy Comptroller of the Philippine Navy. He was designated by his immediate supervisor, Captain Luisito F. Fernandez, Assistant Chief of Naval Staff for Comptrollership, to act on the latters behalf, during his absence, on matters relating to the activities of the Fiscal Control Branch, O/NG. This included the authority to sign disbursement vouchers relative to the procurement of equipment needed by the Philippine Navy. On July 2, 1991, six (6) informations for estafa through falsification of official documents and one (1) information for violation of Section 3 (e), R.A. No. 3019, as amended, were filed with the Sandiganbayan against petitioner and nineteen (19) co-accused, namely: (Ret.) Bgen. Mario S. Espina (then Assistant Secretary for Installations and Logistics, Department of National Defense), (Ret.) Rear Admiral Simeon M. Alejandro (then Flag Officer in Command, Philippine Navy), CDR Rodolfo Guanzon, CDR Erlindo A. Erolin, CAPT. Manual Ison (then Commander of the Naval Supply Center, Philippine Navy), CAPT. Andres Andres, LCDR Gilmer B. Batestil, LCDR Jose Alberto I. Velasco, Jr., LTSG Edgar L. Abogado, LT. Teddy O. Pan, LT. Ronald O. Sison, Reynaldo Paderna (Chief Accountant), Antonio Guda (Supply Accountable Officer, Fort San Felipe, Cavite, Philippine Navy), Loida T. Del Rosario (Typist), Marissa Bantigue (owner of MAR GEN Enterprise), Avelina Avila (owner of Avelina Avila General Merchandise), Jenis B. Bantigue (owner of JAB GEN Merchandise), Maria M. Capule (owner of MM Capule Enterprise) and Andrea C. Antonio (owner of AC Antonio Enterprise). On September 20, 1991, the Sandiganbayan issued an Order[2] directing a comprehensive reinvestigation of the cases against all the twenty (20) accused. After conducting the re-investigation, the Special Prosecutor issued an Order[3] dated November 14, 1991 recommending that the informations for estafa through falsification of official documents be withdrawn and in lieu thereof, informations for violation of Section 3 (e) of R.A. No. 3019, as amended, be filed against eleven (11) accused,[4] which included the petitioner. In a Memorandum[5] dated December 5, 1991, Special Prosecutor Aniano A. Desierto reduced the number of those to be charged under R.A. No. 3019, as amended, to five (5),[6] including petitioner. Acting on the separate motions for reconsideration of the five (5) remaining accused, the Special Prosecutor issued an Order[7] dated February 18, 1992 dropping two (2) more names[8] from the five (5) officers recommended for prosecution, and recommending that six (6) separate informations for violation of Section 3(e), R.A. 3019, as amended, be filed against the petitioner, LCMDR. Rodolfo Guanzon and LT. Teddy Pan. Except for the variance in the Purchase Order numbers involved and the Payees,[9] the six (6) amended informations[10] filed by Special Prosecutor Officer III Roger C. Berbano, Sr. recite identical allegations, viz: That on or about November 1985, and for sometime prior or subsequent thereto, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, CDR. Rodolfo

Guanzon, being then the Procurement Officer, Philippine Navy, LCDR. George Uy, being then the Assistant Chief of Naval Staff Comptrollership, Philippine Navy and Lt. Teddy O. Pan, being then the Naval Group Inspector, Philippine Navy, all public officials, and committing the offense in relation to their office, did then and there wilfully, unlawfully and criminally, through evident bad faith or gross inexcusable negligence, cause undue injury to the Government, and in the exercise of their separate official functions, to wit: accused Guanzon initiated/prepared the Abstract of Canvass and Recommendation of Awards, Certificate of Emergency Purchase and Reasonableness of Price, signed the PO, DV, validated PO No. x x x, accused Uy signed the DV in behalf of the Assistant Chief of Naval Comptrollership, accused Pan as N6 conducted the pre-audit and affixed his signature on the same P.O., the Sales Invoice and Technical Inspection Report -- which documents said accused had the duty to check/verify/examined, thereby acting or omitting to act in a situation where there is a duty to act, in that only 100 seal rings were ordered at a unit price of P98.70, yet 1,000 pieces appear to have been sold with total price of P98,700.00, hence there was gross error in multiplication as shown on the face of the aforesaid PO and other supporting documents, resulting to an overpayment of P88,930.00 to x x x, thereby depriving the Government/Philippine Navy of the use thereof until its remittance/return to the Government/Philippine Navy by x x x in December, 1991. On April 21, 1992, the petitioner filed with the Sandiganbayan a motion to quash[11] the informations on the following grounds: 1. The Sandiganbayan has no jurisdiction over the offense charged or the person of the accused. 2. The officer who has filed the informations had no authority to do so. 3. The facts charged do not constitute an offense. 4. More than one (1) offense is charged. On June 10, 1992, the Sandiganbayan issued the now-assailed Resolution denying petitioners motion to quash for lack of merit. It passed upon the grounds set forth by petitioner in this wise: On the first issue raised by accused-movant, we are not inclined to rule that this Court has no jurisdiction over the person of accused-movant or over the offenses charged herewith. As intimated by the prosecution, this Court has several cases pending before it involving crimes committed by military officers in relation to their office. Unless and until the Highest Tribunal rules otherwise, this Court has no judicious recourse but to entertain and try the various criminal cases filed by the Office of the Special Prosecutor involving military officers and men accused of committing crimes in relation to their office, and those involving violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. Be that as it may, being prosecuted for violation of R.A. 3019, as amended, Accused-movant axiomatically is subject to the jurisdiction of this Court. We cannot likewise sustain accused-movants stance that the officer who has filed the informations in the cases at bar had no authority to do so. Both the offense charged and the person of accused-movant being within the exclusive jurisdiction of this Court, it stands to reason that the preliminary investigation and prosecution of the instant criminal charges belong to, and are the exclusive prerogatives of, the Office of the Ombudsman, as provided for in Section 15(1) of Republic Act No. 6770. Neither are we impressed with the asseveration that the acts charged in the amended informations at bar do not constitute an offense. Such a claim cannot stand in the face of unequivocal rulings of the Supreme Court, thus: The fundamental rule in considering a motion to quash on the ground that the averments of the information are not sufficient to constitute the offense charged is whether the facts alleged, if hypothetically admitted, would meet the essential elements of the offense, as defined in the law. (People

v. Segovia, 103 Phil. 1162). As a general proposition, too, a motion to quash on the ground that the allegations in the information do not constitute the offense charged, or of any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. (People v. Navarro, 75 Phil. 516). The general rule is that in resolving the motion to quash a criminal complaint or information, the facts alleged therein should be taken as they are. This is especially so if the motion to quash is based on the ground that the facts charged do not constitute an offense, but he court may consider additional facts which the fiscal admits to be true. (People v. Navarro, supra). In consonance with the foregoing doctrinal pronouncements, the quashal of the informations at bar cannot be sustained since they are sufficient in form and substance to charge indictable offenses. Parenthetically, some of the arguments relied upon by accused-movant refer more to evidentiary matters, the determination of which are not yet legally feasible at this juncture and should only be raised during the trial on the merits. Finally, We find no merit in the argument that more than one offense is charged in the criminal informations at bar. Precisely, the prosecution split the original information into six (6) distinct amended informations pertaining to six (6) criminal violations of Section 3 (e) of R.A. 3019, as amended. Such is but proper under the premises considering that the acts subject of the criminal cases at bar were allegedly committed on six (6) different purchase orders and there is no showing that they were committed on similar dates or singular occasion. In the instant petition, petitioner raises the following issues: 1) Whether or not the Sandiganbayan has jurisdiction over the subject criminal cases or the person of the petitioner; 2) Whether or not the respondents Ombudsman and Special Prosecutor have the authority to file the questioned amended information; 3) Whether or not the act or omission charged constitutes an offense. On the issue of jurisdiction, petitioner and the Solicitor General submit that it is the court-martial, not the Sandiganbayan, which has jurisdiction to try petitioner. Emphasizing the fundamental doctrine that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action, they claim that at the time the amended informations were filed on July 2, 1991, the controlling law on the jurisdiction over members of the Armed Forces of the Philippines is P.D. 1850, Providing for the trial by courts-martial of members of the Integrated National Police and further defining the jurisdiction of courts-martial over members of the Armed Forces of the Philippines (which took effect on O ctober 4, 1982), as amended by P.D. 1952 (which took effect in September of 1984), more particularly Section 1(b) thereof provides: Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. -- Any provision of law to the contrary notwithstanding, (a) uniformed members of the Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military law under Article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when courtmartial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated

National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law: Provided, further, that the President may, in the interest of Justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court. As used herein, the term uniformed members of the Integrated National Police shall refer to police officers, policemen, firemen, and jail guards. (underscoring ours). Since petitioner is a regular officer of the Armed Forces of the Philippines, he falls squarely under Article 2 of the Articles of War (C.A. 408, as amended) mentioned in the aforecited Section 1(b) of P.D. 1850. Article 2 reads: Article 2: Persons subject to Military Law. -- The following persons are subject to these Articles and shall be understood as included in the term any person subject to military law or person subject to military law; whenever used in these articles: (a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army; all reservists, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instruction; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same; x x x. Petitioner and the Solicitor General concede the subsequent passage of Republic Act No. 7055, An Act Strengthening Civilian Supremacy over the military by returning to the civil courts the jur isdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees (which took effect on July 13, 1991) which expressly repealed P.D. 1850. Section 1 of R.A. No. 7055 reads: SECTION 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal law, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or judicial persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the offense shall be tried by courtmartial: Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92 and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. They nonetheless argue that petitioners case falls within the exception provided for in said Section 1 of R.A. No. 7055, and, therefore, still cognizable by courts-martial, since the alleged commission of the offense for which petitioner is charged with is service-connected. We rule that the Sandiganbayan has no jurisdiction over petitioner, at the time of the filing of the informations, and as now prescribed by law. Republic Act No. 8249,[12] the latest amendment to P.D. 1606[13] creating the Sandiganbayan (otherwise known as the Sandiganbayan Law), provides the prevailing scope of the Sandiganbayans

jurisdiction. The pertinent portions of Section 4 of the Sandiganbayan Law read: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: xxx xxx xxx

(d.) Philippine army and air force colonels, naval captains, and all officers of higher rank; xxx xxx xxx

It can be deduced from said provisions of law that both the nature of the offense and the position occupied by the accused are conditions sine qua non before the Sandiganbayan can validly take cognizance of the case. In the instant case, while petitioner is charged with violation of Section 3(e) of R.A. No. 3019, as amended, which is an offense covered by Section 4 of the Sandiganbayan Law, his position as Lieutenant Commander (LCMDR.) of the Philippine Navy is a rank lower than naval captains and all officer of higher rank as prescribed under sub-paragraph (d) of Section 4. Under the Promotions System in the Armed Forces of the Philippines, the hierarchy in the position/rank of the officers of the Philippine Navy is as follows: 1. Admiral 2. Vice-Admiral 3. Rear Admiral 4. Commodore 5. Captain 6. Commander 7. Lieutenant Commander 8. Lieutenant Senior Grade 9. Lieutenant Junior Grade 10. Ensign Thus, not falling within the rank requirement stated in Section 4, exclusive jurisdiction over petitioner is vested in the regular courts pursuant to the provision of Section 4 of the Sandiganbayan Law, as amended by R.A. No. 8249, which states that In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. Consequently, it is the regional trial court that has jurisdiction over the offense charged. Under Section 9 of R. A. No. 3019, as amended, the commission of any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than SIX

YEARS AND ONE MONTH or FIFTEEN YEARS. The indictment against petitioner cannot fall within the jurisdiction of the metropolitan trial courts, municipal trial courts and municipal circuit trial courts because under Republic Act No. 7691 which amended certain provisions of Batas Pambansa Blg. 129 by expanding the jurisdiction of said inferior courts, they exercise exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of ki nd, nature, value or amount thereof x x x. This draws the case into the domain of the regional trial courts which, under Section 20 of Batas Pambansa Blg. 129, shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter. It is not correct that under R.A. No. 7055, the courts-martial retain jurisdiction over petitioners case since the offense for which he is charged is service-connected. The second paragraph of Section 1 of R. A. No. 7055 limits the nature of service-connected crimes or offenses to those defined only in Articles 54 to 70, 72 to 92 and 95 to 97 of Commonwealth Act No. 408, as amended,[14] to wit: Fraudulent enlistment, making Unlawful Enlistment, False Muster, False Returns, Desertion, Advising or Aiding Another to Desert, Entertaining a Deserter, Absence Without Leave, Disrespect towards the President, Vice-President and National Assembly, Disrespect toward Superior Officer, Insubordinate Conduct toward Non-Commissioned Officer, Mutiny or Sedition, Failure to Suppress Mutiny or Sedition, Quarrels; Frays; Disorders, Breaking an Arrest or Escaping from Confinement, Refusal to Receive and Keep Prisoners, Failure to make a Report of Prisoners Received, Releasing prisoners without proper authority, Failure to Deliver offenders to Civil Authorities, Misbehavior Before the Enemy, Subordinates Compelling Commander to Surrender, Improper Use of Countersign, Forcing a Safeguard, Neglect or Wrongful Appropriation of Captured Property, Dealing in Captured or Abandoned Property, Relieving, Corresponding with, or Aiding the Enemy, Spies, Damage/Wrongful Disposition of Military Property, Waste or Unlawful Disposition of Military Property, Drunk on Duty, Misbehavior of Sentinel, Personal Interest in Sale of Provisions, Intimidation of Persons Bringing Provisions, Good Order to be Maintained and Wrong Redressed, Provoking Speeches or Gestures, Dueling, Fraud against the Government Affecting Matters and Equipment, Conduct Unbecoming an Officer and Gentleman, and All Disorders and Neglects to the Prejudice of Good Order and Military Discipline and All Conduct of a Nature to Bring Discredit Upon the Military Services. None of these offenses relates to acts or omissions constituting a violation of Section 3 (e), R.A. No. 3019, as amended which reads: Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan.[15] WHEREFORE, the Resolution of the Sandiganbayan dated June 10, 1992 in Criminal Cases Nos. 16905-16910, is hereby ANNULLED and SET ASIDE. In lieu thereof, the Sandiganbayan is ordered to

dismiss Criminal Cases Nos. 16905-16910, and to inform this Court of the action taken hereon within fifteen (15) days from finality of this decision. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

2001 [ G.R. Nos. 105965-70] UY vs SANDIGANBAYAN FACTS: August 9, 1999 the trial court rendered a decision stating that it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information against petitioner in the regional trial court. That the Ombudsman can only exercise prosecutorial power in cases cognizable by the Sandiganbayan. February 22, 2000 it explained in the resolution that: (t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan..." And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the Ombudsman's and Special Prosecutor's authority to cases cognizable by the Sandiganbayan." The Ombudsman the respondent hereof seeking clarification of the foregoing ruling and raises the following points:(1)The jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader jurisdiction of the office of the Ombudsman.(2)The phrase primary jurisdiction of the Ombudsman over cases cognizable by the Sandiganbayan is not a delimitation of its jurisdiction solely to Sandiganbayancases;and(3) The authority of the office of the Special prosecutor to prosecute cases before the sandiganbayan cannot be confused with the broader investigatory and prosecutorial power of the office of the Ombudsman. ISSUE: Whether the prosecutor power of the Ombudsman extends only to cases cognizable by the Sandiganbayan or the Ombudsman has authority to prosecute cases falling within the jurisdiction of regular courts. HELD: We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient, thus: "Sec. 15.Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers, functions and duties:(1) Investigate and prosecute on its own or on

complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient . It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction; it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman under the latter's supervision and control, the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. "Sec. 11.Structural Organization.(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman.

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman, have the following powers: (a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee.

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770. Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving

public officers and employees before the regular courts does not conflict with the power of the regular prosecutors under the Department of Justice to control and direct the prosecution of all criminal actions under Rule 110 of the Revised Rules of Criminal Procedure. The Rules of Court must be read in conjunction with RA 6770 which charged the Ombudsman with the duty to investigate and prosecute all illegal acts and omissions of public officers and employees. The Court held in the case of Sanchez vs. Demetriou that the power of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides: "The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein). The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts." IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February 20, 2000 that the Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan is SET ASIDE.

EN BANC [G.R. Nos. 105965-70. March 20, 2001]

GEORGE UY, petitioner, vs. THE HON. SANDIGANBAYAN, THE HON. OMBUDSMAN AND THE HON. ROGER C. BERBANO, SR., SPECIAL PROSECUTION OFFICER III, OFFICE OF THE SPECIAL PROSECUTOR, respondents. RESOLUTION PUNO, J.: Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling in its decision dated August 9, 1999 and resolution dated February 22, 2000 that the prosecutory power of the Ombudsman extends only to cases cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the jurisdiction of regular courts. The Court stated in its decision dated August 9, 1999: In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. It explained in the resolution of February 22, 2000 that: (t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the Ombudsman's and Special Prosecutor's authority to ca ses cognizable by the Sandiganbayan. Seeking clarification of the foregoing ruling, respondent Ombudsman raises the following points: (1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader jurisdiction of the Office of the Ombudsman; (2) The phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan" is not a delimitation of its jurisdiction solely to Sandiganbayan cases; and (3) The authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan cannot be confused with the broader investigatory and prosecutorial powers of the Office of the Ombudsman. Thus, the matter that needs to be discussed herein is the scope of the power of the Ombudsman to conduct preliminary investigation and the subsequent prosecution of criminal offenses in the light of the provisions of the Ombudsman Act of 1989 (Republic Act [RA] 6770). We held that the Ombudsman is clothed with authority to conduct preliminary investigation

and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient, thus: Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman under the latters supervision and control, the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. It states: Sec. 11. Structural Organization. x x x xxx (3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman. (4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman, have the following powers: (a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; (b) (c) To enter into plea bargaining agreements; and To perform such other duties assigned to it by the Ombudsman.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient . The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee. [1] The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the

Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.[2] Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman.[3] Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants.[4] To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control.[5] The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office.[6] A review of the development of our Ombudsman laws reveals this intent. The concept of Ombudsman originated in Sweden in the early 19th century, referring to an officer appointed by the legislature to handle the peoples grievances against administrative and judicial actions. He was primarily tasked with receiving complaints from persons aggrieved by administrative action or inaction, conducting investigation thereon, and making recommendations to the appropriate administrative agency based on his findings. He relied mainly on the power of persuasion and the high prestige of the office to effect his recommendations.[7] In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the peoples medium for airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the view of raising the

standard in public service and ensuring integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation. These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations and the Office of the Citizens Counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the political independence necessary for the effective performance of their function as government critic. Furthermore, their powers extended to no more than fact-finding and recommending.[8] Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the office of an Ombudsman, to give it political independence and adequate powers to enforce its recommendations.[9] The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read: Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil or administrative case before the proper court or body. Implementing this constitutional provision, President Marcos, on June 11, 1978, exercising his power under Proclamation 1081, enacted Presidential Decree (PD) 1487 creating the Office of the Ombudsman to be known as Tanodbayan. Its principal task was to investigate, on complaint, any administrative act[10] of any administrative agency[11] including any government-owned or controlled corporation.[12] The Tanodbayan also had the duty to file and prosecute the corresponding criminal, civil, or administrative case before the Sandiganbayan or the proper court or body if he has reason to believe that any public official, employee, or other person has acted in a manner resulting in a failure of justice.[13] It should be noted, however, that the prosecution of cases falling within the jurisdiction of the Sandiganbayan was to be done by the Tanodbayan through the Special Prosecutor who, according to PD 1486,[14] had the exclusive authority to conduct preliminary investigation, file information for and prosecute cases within the jurisdiction of said court. The Special Prosecutor was then under the control and supervision of the Secretary of Justice.[15] Shortly after its enactment, PD 1487 was amended by PD 1607 which took effect on December 10, 1978. The amendatory law broadened the authority of the Tanodbayan to investigate administrative acts of administrative agencies by authorizing it to conduct an investigation on its own motion or initiative, even without a complaint from any person.[16] The

new law also expanded the prosecutory function of the Tanodbayan by creating the Office of the Chief Special Prosecutor in the Office of the Tanodbayan and placing under his direction and control the Special Prosecutor who had the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file informations therefor and to direct and control the prosecution of said cases therein. [17] Thus, the law provided that if the Tanodbayan has reason to believe that any public official, employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency.[18] On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD 1607. PD 1630 reorganized the Office of the Tanodbayan and transferred the powers previously vested in the Special Prosecutor to the Tanodbayan himself. Thus, the Tanodbayan was empowered to directly conduct preliminary investigation, file information and prosecute cases within the jurisdiction of the Sandiganbayan and other courts. The amendment gave the Tanodbayan the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file information therefor and to direct and control the prosecution of said cases.[19] Section 10 of PD 1630 provided: Sec. 10. Powers.--The Tanodbayan shall have the following powers: (a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative act whether amounting to any criminal offense or not of any administrative agency including any government-owned or controlled corporation; xxx (e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or complaint with the Sandiganbayan or any proper court or administrative agency and prosecute the same. Section 18 further stated: Sec. 18. Prosecution of Public Personnel or Other Person.--If the Tanodbayan has reason to believe that any public official, employee or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall conduct the necessary investigation and shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency. With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and to notify the complainants of the action taken and the result thereof.[20] He possesses the following powers, functions and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient;

2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties. 3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.[21] As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor which continued to function and exercise its powers as provided by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution.[22] The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987. In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive and relay the people's grievances, but also the duty to investigate and prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law. Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people's complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers

to enable him to implement his own actions. Recognizing the importance of this power, the Court cannot derogate the same by limiting it only to cases cognizable by the Sandiganbayan. It is apparent from the history and the language of the present law that the legislature intended such power to apply not only to cases within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular courts. The Court observed in the case of Republic vs. Sandiganbayan:[23] A perusal of the law originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and the amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was already vested with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and even the regular courts. xxx Presidential Decree No. 1630 was the existing law governing the then Tanodbayan when Republic Act No. 6770 was enacted providing for the functional and structural organization of the present Office of the Ombudsman. This later law retained in the Ombudsman the power of the former Tanodbayan to investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. x x x. Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving public officers and employees before the regular courts does not conflict with the power of the regular prosecutors under the Department of Justice to control and direct the prosecution of all criminal actions under Rule 110 of the Revised Rules of Criminal Procedure. The Rules of Court must be read in conjunction with RA 6770 which charged the Ombudsman with the duty to investigate and prosecute all illegal acts and omissions of public officers and employees. The Court held in the case of Sanchez vs. Demetriou[24] that the power of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides: The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein).[25] The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts. IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February 20, 2000 that the Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan is SET ASIDE. SO ORDERED.

12. CASTRO V. DELORIA

G.R. No. 163586CASTRO vs. DALORIAJanuary 27, 2009 Austria-Martinez, J. Petitioner: Sharon Castro Respondents: RTC Judge Hon. Merlin Deloria, CA CASE SUMMARY: Sharon Castro was a BIR Officer in Guimaras who was charged with Malversation of Public Funds, misappropriating worth P556,000. The Ombudsman was tasked toprosecute her, but she questioned the authority of the Ombudsman, citing the originaldecision of Uy vs. Sandiganbayan decided in 1999 which held that the Ombudsman hadno prosecutorial powers over cases cognizable by RTC.The Supreme Court ruled that the Ombudsmans powers were plenary and unqualified, covering all offending public officers, and that the later Resolution of the Uy case prevailed, curing the restrictive defect in the Ombudsmans powers. FACTS: Sharon Castro, a Revenue Officer of BIR Buenavista, Guimaras, wascharged before the Ombudsman with Malversation of Public Funds. Shewas accused of misappropriating public funds worth P556,681.53despite notice and demand upon her account for the funds.Castro filed a Motion to Quash, stating that the Ombudsman lacked jurisdiction. She said that the Information failed to allege her salarygrade a material fact in the crime charged. Citing Uy vs.Sandiganbayan, since she had a salary grade of 27, her case should bewithin the jurisdiction of the RTC. She also added that the prosecutorialpowers of the Ombudsman are limited to the cases cognizable by theSandiganbayan.RTC denied the Motion to Quash, recognizing the authority of theOmbudsman in the case. RTC cited the Resolution of Uy vs.Sandiganbayan in 2001 which reversed the original decision in Uy vs.Sanidganbayan 1999, and expressly recognizing the prosecutorial andinvestigatory authority of the Ombudsman in cases cognizable by theRTC. ISSUES: 1. W/N the Ombudsman had the authority to file a case againstpetitioner, as of May 31, 2001, in the light of the FIRSTDECISION in the Uy vs. Sandiganbayan case (1999), whichlimited the powers of the Ombudsman.2.

W/N the Resolution of the Uy vs. Sandiganbayan case (2001)violates the constitutional provisions against ex-post facto lawsand the denial of due process. HELD: Ombudsmans powers UPHELD. RATIO: The decision on Uy vs. Sandiganbayan in 1991 was that theOmbudsmans prosecutorial powers were limited to Sandiganbayancases, while the Resolution on the same case in 2001expressly heldthat the Ombudsman shall have power on all criminal cases involving public officials. Petitioner contends that the decision in 1991 should apply to her case,instead of the 2001 Resolution, because the Ombudsman instituted theaction against her in April 26, 2000. Hence, the Information filed against her was void because at that time, the Ombudsman had no authority over her case. The Court finds no merit in her petition. 1. The Ombudsmans prosecutorial powers are PLENARY and UNQUALIFIED. Time and time again, the Court has held that the Ombudsman haspower to prosecute not only graft cases within the jurisdiction of theSandiganbayan but also cases within the jurisdiction of the regional trialcourts. The powers of the Ombudsman are plenary and unqualified.(Office of the Ombudsman vs. Enoc)The clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee is within the Ombudsmans jurisdiction to prosecute. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction to take over, at any stage from any investigatory agency of the government, the investigation of such cases cognizable by the Sandiganbayan. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act underthe supervision and control and upon authority of the Ombudsman.2. The Resolution of Uy vs. Sandiganbayan in 2001 is NOT ex-postfacto; it is meant to cure the defect in limiting the Ombudsmans powers. Resolution 2001 is a judicial interpretation of the statute. As such, it constitutes part of the original law which is the Ombudsman Act of 1989 . Such interpretation does not create new law, but rather construesit to reveal the true intent of the lawmakers. Therefore, the Resolution of the Court in Uy interpreting the Ombudsman Act is part of the lawdated December 7, 1989. Where no law is invalidated nor doctrine abandoned, a judicial interpretation of the law should be deemed incorporated at the moment of its legislation. The Resolution in Uy setaside an erroneous pubescent interpretation of the Ombudsman Actmanifested in Uy vs. Sandiganbayan (1999) FINAL VERDICT: Case dismissed for lack of merit.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 163586 January 27, 2009

SHARON CASTRO, Petitioner, vs. HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court, Branch 65, Guimaras; the COA-Region VI, represented by its Director; and HON. COURT OF APPEALS, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court filed by Sharon Castro (petitioner) to assail the July 22, 2003 Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No. 69350; and the March 26, 2004 CA Resolution 2 which denied the motion for reconsideration. The facts are of record. On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public Funds, under an Information which reads, as follows: That on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista, Province of Guimaras, Philippines and within the jurisdiction of the this Honorable Court, abovenamed accused, a public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such, was in the custody and possession of public funds in the amount of P556,681.53, Philippine Currency, representing the value of her collections and other accountabilities, for which she is accountable by reason of the duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public position, with deliberate intent, and with intent to gain, did then and there willfully, unlawfully and feloniously appropriate, take, misappropriate, embezzle and convert to her own personal use and benefit said amount of P556,681.53, and despite notice and demands made upon her account for said public funds, she has failed to do so, to the damage and prejudice of the government. CONTRARY TO LAW.3 Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001.

On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan,4 petitioner further argued that as she was a public employee with salary grade 27, the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by theSandiganbayan.5 The RTC denied the Motion to Quash in an Order 6 dated September 7, 2001. It held that the jurisdiction of the RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter for the offense charged.7 Moreover, it sustained the prosecutorial authority of the Ombudsman in the case, pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory authority of the Ombudsman in cases cognizable by the RTC. The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule 117, for it was filed after petitioner pleaded not guilty under the Information.8 Petitioner filed a Motion for Reconsideration,9 which the RTC denied in its December 18, 2001 Order.10 Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed the petition in the Decision under review. Petitioners motion for reconsideration12 was also denied. Hence, the present petition, confining the issues to the following: 1. Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme Courts ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of the Ombudsman is limited to cases cognizable by the Sandiganbayan. 2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the constitutional provision on ex-post facto laws and denial of the accused to due process.13 Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26,

2000, then the August 9, 1999 Decision in Uy was applicable, notwithstanding that the said decision was set aside in the March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case. The petition lacks merit. The petition calls to mind Office of the Ombudsman v. Enoc,14 wherein accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court in Uy15 in a motion to dismiss the 11 counts of malversation that were filed against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the Ombudsman, the Court reversed the RTC and held: In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordanc e with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him with the regular prosecutors. WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the same. (Emphasis supplied) Similarly relevant is the case of Office of Ombudsman v. Hon. Breva, 16 in which, citing the August 9, 1999 Decision in Uy, the RTC dismissed a criminal complaint that was filed before it by the Ombudsman. The Court reversed the RTC, for, "given the Courts Uy ruling under its March 20, 2001 Resolution, the trial courts assailed Orders x x x are, in hindsight, without legal support and must, therefore, be set aside." It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. Petitioner would argue, however, that the March 20, 2001 Resolution in Uy cannot have retroactive effect, for otherwise it would amount to "an ex-post facto law, which is constitutionally proscribed."17 Petitioner is grasping at straws. A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its original passage. Such interpretation does not create a new law but

construes a pre-existing one; it merely casts light upon the contemporaneous legislative intent of that law.18 Hence, the March 20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7, 1989. Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal interpretation of such law, the Court, recognizing that acts may have been performed under the impression of the constitutionality of the law or the validity of its interpretation, has consistently held that such operative fact cannot be undone by the mere subsequent declaration of the nullity of the law or its interpretation; thus, the declaration can only have a prospective application.19 But where no law is invalidated nor doctrine abandoned, a judicial interpretation of the law should be deemed incorporated at the moment of its legislation.20 In the present case, the March 20, 2001 Resolution in Uy made no declaration of unconstitutionality of any law nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case. Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes conducted by the Ombudsman, such as the filing of the Information against petitioner. With the foregoing disquisition, the second issue is rendered moot and academic. WHEREFORE, the petition is DISMISSED for lack of merit. No costs. SO ORDERED.

13. DEPARTMENT OF JUSTICE V. LIWAG

FACTS: Alleging that she was a former undercover agent of the Presidential Anti-Organized Crime Task Force (PAOCTF) and the Philippine National Police (PNP) Narcotics Group, Mary Ong filed a complaint-affidavit on beforethe Ombudsman against PNP General Panfilo M.Lacson, PNP Colonel Michael Ray B. Aquino, other high-ranking officials of the PNP, and several privateindividuals. Her complaint-affidavit gave rise toseparate cases involving different offenses imputed to respondents Lacson and Aquino. The Ombudsman found the complaint-affidavit of Mary Ong sufficient inform and substance and thus required the respondents therein to file their counter-affidavits on the charges. On February 28, 2001, said respondents submitted their counter-affidavits and prayed that the chargesag ainst them be dismissed. Subsequently, on March 9, 2001, Mary Ong and other witnesses executed sworn statements before the NBI, alleging the same facts and circumstances revealed by Mary Ong in her complaint-affidavit before the Ombudsman. NBI Director Wycoco, in a letter dated May 4, 2001 addressed to then Secretary of JusticeHernando Perez, recommended the investigation of Lacson, Aquino, other PNP officials, and privateindividuals for the following alleged crimes: kidnapping for ransom and murder of several individuals. On May7, 2001, a panel of prosecutors from the DOJ sent asubpoena to Lacson, et al named in the witnessessworn statements directing them to submit theircounter-affidavits and controverting evidence at thescheduled preliminary investigation on the complaintfiled by the NBI. However, Lacson and Aquinomanifested in a letter dated May 18, 2001 that the DOJ panel of prosecutors should dismiss the complaint filed therewith by Mary Ong since there are complaint spending before the Ombudsman alleging a similar set of facts against the same respondents, and claimed that the Ombudsman has primary jurisdiction over criminal cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, he may takeover, at any stage, from any investigatory agency of Government, the investigation of such cases involving public officials, including police and military officials such as private respondent. DOJ, which construed the letter as a motion to dismiss, denied the motion.Lacson, et al. filed before the RTC a petition forprohibition, which the RTC granted, saying that theOmbudsman has jurisdiction over the case, anddirecting the DOJ to desist from conducting preliminary investigation. Thus, the DOJ filed a Petition for certiorari and prohibition in the SC.

ISSUE/RULING: W/N the DOJ has jurisdiction toconduct a preliminary investigation despite thependency before the Ombudsman of a complaintinvolving the same accused, facts, and circumstances NO RATIO: The question is whether or not the Ombudsman has in effect taken over the investigation of the case or cases in question to the exclusion of other investigatory agencies, including the DOJ. Since the Ombudsman has taken hold of the situation of the parties in the exercise of its primary jurisdiction over the matter, respondents cannot insist on conducting a preliminary investigation on the same matter under the pretext of a shared and concurrent authority. In the final analysis, the resolution on the matter by the Ombudsman is final. In the preliminary investigation conducted by the Ombudsman itself, the other investigative agencies of the Government have no power and right to add an input into the Ombudsmans investigation. Only inmatters where the other investigative agencies areexpressly allowed by the Ombudsman to makepreliminary investigation may such agencies conductthe investigation, subject to the final decision of theOmbudsman. The public respondents cannot find comfort in thatprovision of the law that the Ombudsman may takeover, at any stage, from any investigative agency of the Government, the investigation of cases involving public officials, including police and military officials such as the petitioners. That situation presupposes the conduct by other Government agencies of preliminaryinvestigations involving public officials in cases nottheretofore being taken cognizance of by theOmbudsman. If the Ombudsman, as in the case, has already taken hold of the situation of the parties, it cannot take over, at any stage of the proceedings, the investigation being conducted by another agency. It has the case before it. Rudimentary common sense and becoming respect for power and authority would thus require the respondents to desist from interfering with the case already handled by the Ombudsman.Indeed, as conceded by the respondents, they aredeputized prosecutors by the Ombudsman. If that is so, and that is the truth, the exercise by the principal of the powers negates absolutely the exercise by the agents of a particular power and authority. The hierarchy of powers must be remembered. Petitioners cannot seek sanctuary in the doctrine of concurrent jurisdiction. While the doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter, the settled rule is that the body or agency that first takescognizance of the complaint shall exercise jurisdiction to the exclusion of the others . Thus, assuming there is concurrent jurisdiction between the Ombudsman and the DOJ in the conduct of preliminary investigation, this concurrence is not to be taken as an unrestrained

freedom to file the same case before both bodies or be viewed as a contest between these bodies as to which will first completethe investigation. In the present case, it is theOmbudsman before whom the complaint was initially filed. Hence, it has the authority to proceed with the preliminary investigation to the exclusion of the DOJ. The subsequent assumption of jurisdiction by the DOJ in the conduct of preliminary investigation over the cases filed against the respondents would not promote an orderly administration of justice .Although a preliminary investigation is not a trial, it is not a casual affair either. A preliminary investigation isan inquiry or proceeding for the purpose of determining whether there is sufficient ground toengender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would leave hapless litigants at a lossas to where to appear and plead their cause ordefense. There is yet another undesirable consequence. There is the distinct possibility thatthe two bodies exercising jurisdiction at thesame time would come up with conflictingresolutions regarding the guilt of therespondents

14. TAPIADOR V. OFFICE OF THE OMBUDSMAN

SECOND DIVISION

[G.R. No. 129124. March 15, 2002]

RENATO A. TAPIADOR, petitioner, vs. OFFICE OF THE OMBUDSMAN and ATTY. RONALDO P. LEDESMA, respondents. DECISION
DE LEON, JR., J.:

This is a petition for review on certiorari of the Resolution[1] dated January 22, 1997 of the Office of the Ombudsman in OMB-ADM-0-94-0983 dismissing the petitioner from the government service for grave misconduct and the Order [2] dated April 7, 1997 denying the petitioners motion for reconsideration. The incipience of the case could be traced to the complaint-affidavit[3] dated July 4, 1994 lodged with the Resident Ombudsman at the main office in Manila of the Bureau of Immigration and Deportation (BID for brevity) by Walter H. Beck, a U.S. citizen, against the petitioner, Renato A. Tapiador, BID Special Investigator and assigned as Technical Assistant in the office of the then Associate Commissioner Bayani M. Subido, Jr. The complaint alleged in substance that petitioner Tapiador demanded and received from Walter Beck the amount of Ten Thousand Pesos (P10,000.00) in exchange for the issuance of an alien certificate of registration (ACR for brevity) which was subsequently withheld deliberately by the petitioner despite repeated demands by Beck, unless the latter pay an additional amount of Seven Thousand Pesos (P7,000.00). Accompanying the complaint was the affidavit[4] executed by a certain Purisima C. Terencio which essentially seeks to corroborate the alleged payment of the amount of Ten Thousand Pesos (P10,000.00) by Walter Beck and his wife to the petitioner in consideration for the issuance of the subject ACR. The petitioner categorically denied in his counter-affidavit[5] dated July 11, 1994 that he demanded nor received any amount of money from Walter Beck in consideration for the issuance of the latters ACR. In addition, the petitioner alleged that Beck and his wife, Monica Beck, came to the BID office in Manila on June 29, 1994 to follow-up his visa application. On the said occasion, when the petitioner advised the couple to accomplish first all the requirements for a visa

application, Beck and his wife shouted invectives at him and charged the petitioner with having demanded money from them. This incident prompted the petitioner to file a criminal complaint for oral defamation before the Office of the City Prosecutor in Manila. The petitioners allegations were corroborated by Rosanna C. Vigo, a BID employee and officemate of the petitioner, in her affidavit dated July 15, 1994.[6] After investigation, BID Resident Ombudsman Ronaldo P. Ledesma found the petitioner liable for violating existing civil service rules and regulations as well as penal laws and thus, recommended that criminal and administrative charges be filed against the petitioner. Upon review of the case, the criminal charge was dismissed by the Ombudsman for lack of evidence;[7] however, the Ombudsman found the petitioner liable for grave misconduct in the administrative aspect of the case and imposed the penalty of dismissal from the government service. [8] His subsequent motion for reconsideration having been denied on April 7, 1997, the petitioner filed the instant petition for review[9] which raises the following assignment of errors:
I

THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN FINDING THAT PETITIONER IS GUILTY OF GRAVE MISCONDUCT DESPITE LACK OF SUBSTANTIAL EVIDENCE TO SUPPORT IT.
II

THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN RENDERING THE QUESTIONED RESOLUTION ONLY AFTER ALMOST THREE YEARS, IN VIOLATION OF PETITIONERS RIGHT TO SPEEDY TRIAL.
III

THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN RENDERING THE QUESTIONED RESOLUTION WITHOUT CONDUCTING A PRELIMINARY CONFERENCE AND ACTUAL HEARING IN VIOLATION OF ITS OWN RULES, THUS CONSTITUTING A VIOLATION OF PETITIONERS RIGHT TO DUE PROCESS.
IV

THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN CONTRADICTING ITS OWN FINDING RELATIVE TO THE CRIMINAL ASPECT OF THIS CASE DISMISSING THE COMPLAINT FOR LACK OF EVIDENCE.

THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DISMISSAL AGAINST PETITIONER, DESPITE THE FACT THAT IT WAS HIS FIRST OFFENSE IN HIS THIRTY YEARS IN THE GOVERNMENT SERVICE. In the Resolution dated July 7, 1997, we required the public respondent to file his comment to the instant petition. After several extensions of time given by this Court, the Office of the Solicitor General filed a Manifestation and Motion In Lieu of Comment[10] on February 20, 1998 which essentially recommended that the petitioner be exonerated from the subject administrative charge on the ground that the assailed resolution of the Ombudsman was rendered in violation of procedural due process and that it was not supported by substantial evidence. Consequently, we directed the Office of the Ombudsman to file directly its own comment which it did on May 12, 1998.[11] The petitioner filed a Reply[12] thereto on August 14, 1998. Thereafter, this case was submitted for decision after the petitioner, the Office of the Ombudsman and the Office of the Solicitor General had filed their respective memoranda.[13] The Office of the Ombudsman maintains that the petitioner was accorded due process of law inasmuch as he was duly informed and furnished a copy of the complaint against him as evidenced by his letters dated July 22 and 26, 1996 addressed to the investigating officer requesting for a copy of the case records to enable him to prepare for his defense. Likewise, there was no undue delay in the conduct of the administrative proceedings since the preliminary investigation was conducted immediately after the complaint was filed in 1994; and that after the criminal aspect of the case was resolved, the administrative proceeding was conducted shortly thereafter. That no preliminary conference had been conducted in the case was primarily due to the petitioners manifestation to dispense thereof and submit the case for resolution inasmuch as he has already filed his memorandum of evidence. Moreover, the Ombudsman opined that the petitioner was absolved of criminal liability during the preliminary investigation of this case due to insufficiency of evidence constituting probable cause contrary to his claim that there was absolutely no evidence against him. However, the Ombudsman asserts that the sworn statements of Walter Beck a and his witness, Purisima Terencio, substantially established the administrative liability of the petitioner for grave misconduct by demanding from complainant Beck a sum of money in exchange for the issuance of the latters ACR; and for that offense, petitioner should be imposed the corresponding penalty of dismissal from the government service.[14]

By way of reply, the petitioner adverted to the minutes [15] of the preliminary hearing on July 18, 1998 and contended that it was the hearing officer, Atty. Vitaliano M. Mendoza, who instructed him and his counsel to simply file a memorandum within fifteen (15) days after which the case shall be deemed submitted for resolution. The petitioner reiterated that the Office of the Ombudsman found no evidence against him in its investigation of the criminal aspect of the case and thus, he argued that the instant administrative charge should also have been dismissed. In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in the complaint. [16] Substantial evidence does not necessarily import preponderance of evidence as is required in an ordinary civil case; rather, it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[17] In dismissing the petitioner from the government service the Office of the Ombudsman reasoned out, as follows: xxx [E]vidence for the complainant clearly established that respondent Tapiador unlawfully received the amount of P10,000.00 from spouses Walter and Monica Becker (sic), which act was personally witnessed by complainants witness, Purisima C. Terencio, who in her affidavit dated July 01, 1994 positively identified the respondent as the person to whom spouses Becker (sic) gave the money. In quoting, witness Terencio states That said spouses paid the full amount of P10,000.00 on February 23, 1992 to Mr. Tapiador as payment for the Alien Certificate of Registration with the promise for the immediate release of the same (p. 13, Record). To us, the said declaration of witness Terencio appears to be credible and worthy of belief since there is no apparent reason for her to impute false statements against the respondent. It is also significant to observe that the said declaration of Terencio was aptly corroborated by complainant Walter Becker (sic), a foreigner, who in his desire to stay permanently in the Philippines became a victim of such irregularity. Moreover, there is no showing that respondent, in his capacity as Technical Assistant, is authorized to receive payment for the processing of ACR. Worse, Mrs. Becker (sic) also claimed that respondent demanded an additional amount of P7,000.00 from them for the release of the ACR.[18] Notably, the instant administrative complaint was resolved by the Ombudsman merely on the basis of the evidence extant in the record of OMB-ADM-0-94-0983. The preliminary conference required under Republic Act No. 6770 [19] was dispensed with after the nominal complainant, then BID Resident Ombudsman Ronaldo P. Ledesma, manifested on July 29, 1996 that he was submitting the case for resolution on the basis of the documents on record [20]while the petitioner

agreed to simply file his memorandum.[21] Consequently, the only basis for the questioned resolution of the Ombudsman dismissing the petitioner from the government service was the unverified complaint-affidavit of Walter H. Beck and that of his alleged witness, Purisima Terencio. A thorough review of the records, however, showed that the subject affidavits of Beck and Terencio were not even identified by the respective affiants during the fact-finding investigation conducted by the BID Resident Ombudsman at the BID office in Manila. Neither did they appear during the preliminary investigation to identify their respective sworn statements despite prior notice before the investigating officer who subsequently dismissed the criminal aspect of the case upon finding that the charge against the petitioner was not supported by any evidence.[22] Hence, Becks affidavit is hearsay and inadmissible in evidence. On this basis alone, the Administrative Adjudication Bureau of the Office of the Ombudsman should have dismissed the administrative complaint against the petitioner in the first instance. Nonetheless, a perusal of the affidavit executed by Walter Beck does not categorically state that it was petitioner Tapiador who personally demanded from Beck the amount of Ten Thousand Pesos (P10,000.00) in consideration for the issuance of the latters ACR. On the other hand, it appears that Walter Beck and his wife sought the assistance of Purisima Terencio sometime in the later part of 1992 in facilitating the issuance of his ACR and in the process, Terencio allegedly informed the couple that Beck could be granted the same and would be allowed to stay in the Philippines permanently with the help of the petitioner and a certain Mr. Angeles who was also with the BID, for a fee of Ten Thousand Pesos (P10,000.00). Hence, Beck and his wife did not appear to have any direct or personal knowledge of the alleged demand of the petitioner except through the information allegedly relayed to them by Terencio. Likewise, although Beck claimed to have subsequently paid Ten Thousand Pesos (P10,000.00), his affidavit is silent as to the identity of the person who actually received the said amount from him. The pertinent portion of his affidavit reads, thus:
1. That during the months of Sept[ember] and Oct[ober] 1992 a certain Baby (Purisima)Terencio informed us that I could be granted an ACR and will be allowed to stay in the Philippines permanently thru Mr. Tapiador and Mr. Angeles, both from the Bureau of Immigration, Manila and the fees was agreed at P10,000.00, official receipts inclussive (sic); 2. That after completing all the requirements and the amount of P10,000.00 was given I waited but no ACR was given to me; 3. That sometime in February 1993 my wife went to see Mr. Tapiador and was informed that he will hold my passport while I have my ACR, which I refused; 4. That when we tranfered (sic) our residence to Negros Occ[idental] we arranged with Mr.

Tapiador to pick up the ACR before we will leave for that place, and when my wife went again to see Mr. Tapiador to pick up the ACR he was not in the office, and that Baby Terencio promised to (sic) us that the ACR will be mailed to us, but it was never mailed; [23]

xxx xxx xxx Walter Beck could have easily stated in his affidavit that he paid the said amount directly to the petitioner if it were indeed the latter who actually received the same, but he did not. This significant omission in his affidavit is fatal in establishing the alleged administrative liability of the petitioner. It also appears that Beck and the petitioner would eventually meet personally for the first time only later, more specifically on June 23, 1994, at the office of the latter. On the said occasion, so Becks affidavit went on to state, petitioner even informed him that his ACR had been approved but that he still needed to submit his quarantine clearance before the same could be issued to him. Before the said date however, it appears that Purisima Terencio had apparently been doing most of the legwork for the Beck couple in facilitating the release of the subject ACR. Consequently, there is logical basis to assume that it was to Terencio that the alleged payment was made by the Beck couple. Anent the affidavit of Purisima Terencio, the Ombudsman gave full faith and credit to her statement that the spouses paid the full amount of Ten Thousand Pesos (P10,000.00) on February 23, 1992 to Mr. Tapiador as payment for the Alien Certificate of Registration with the promise for the immediate release of the same[24] on the mere assumption that there is no apparent reason for her to impute false statements against the petitioner who is employed with the government for more than thirty (30) years.[25] On the contrary, the rule that witnesses are presumed to tell the truth until proven otherwise [26] does not apply to the case at bar for the reason that Terencio had the motive to impute falsities to avoid the inevitable wrath of the Beck spouses for reneging on her promise to send them by mail the subject ACR. The Ombudsman should have been more prudent in according credence to the allegations of Terencio coming as they do from a supposed fixer. Besides, Purisima Terencio was adroit enough to make it appear in her affidavit that the Beck spouses had paid Ten Thousand Pesos (P10,000.00) in grease money to the petitioner on February 23, 1992 even without categorically stating that she had personal knowledge or had actually witnessed the alleged pay off. A close scrutiny of the allegations in her affidavit show that the alleged pay off had taken place as early as February 23, 1992. However, Beck claimed in his own affidavit that he was informed by Terencio only between the period from September to October 1992 that the processing of his ACR could be facilitated through the assistance of the petitioner and a certain Mr. Angeles. This glaring

inconsistency more than sufficiently impeached Terencios credibility thereby belying the assessment of the Ombudsman in the assailed resolution. In view of the foregoing, it is not necessary anymore to pass upon the other grounds raised by the petitioner in his petition. The complainant clearly failed to present the quantum of proof necessary to prove the charge in the subject administrative case, that is, with substantial evidence. [27] Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, [28] the Ombudsman can only recommend the removal of the public official or employee found to be at fault, to the public official concerned. WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the Ombudsman dated January 22, 1997 dismissing the petitioner from the government service and the Order dated April 7, 1997 in OMB-ADM-0-94-0983 are REVERSED and SET ASIDE. The petitioner is hereby ordered REINSTATED immediately to his position in the government service more particularly in the Bureau of Investigation and Deportation, Manila, without loss nor diminution in his salaries and benefits. SO ORDERED.

15. LEDESMA V. OFFICE OF THE OMBUDSMAN

Ledesma vs. Court of Appeals* Ledesma, the Chairman of the First Division of the Board of Special Inquiry of theBureau of Immigration and Deportation, was complained by Somalio, who requestedFact Finding Intelligence Bureau (FIIB) of the Ombudsman to investigate anomalies onthe extension of the Temporary Resident Visas (TRV) of 2 foreign nationals. FIIB filedcriminal and administrative charges before the Administrative Adjudication Bureau of the Ombudsman against the petitioner, Ledesma. Graft Investigation Officer Reyessuspended Ledesma. However, the criminal charges were dismissed for insufficiency of evidence. Consequently, Ledesma filed a motion for reconsideration with Graft OfficerReyes, but denied the motion and reduced the suspension to 9 months without pay.Ledesma filed a petition for review with the Court of Appeals, and CA reduced thesuspension to 6 months and 1 day without pay. The petitioner filed an instant petitionfor review with the Supreme Court, and one of the grounds was that the Ombudsmanmay only recommend suspension under Sec. 13(3) of Art. XI of the 1987 Constitution.He held that in Tapiador vs. Office of the Ombudsman, the Court mentioned that theOffice of the Ombudsman may only recommend the removal or suspension of publicofficial.Issue:Did the decision of the Supreme Court limit the power of Ombudsman to merely recommendation of suspension of public official?Ruling:No. The statement that made reference to the power of the Ombudsman is, at best,merely an obiter dictum and, as it is unsupported by sufficient explanation, issusceptible to varying interpretations, as what precisely is in this case. Moreover, theSec. 15 Art XI of the Constitut ion provides that the Ombudsmans recommendation is not merely advisory in nature but is actually mandatory within the bounds of law

FIRST DIVISION

ATTY. RONALDO P. LEDESMA,

G.R. No. 161629

Petitioner,

Present:

Davide, Jr., C.J. (Chairman),

- versus -

Quisumbing,

Ynares-Santiago,

Carpio, and

Azcuna, JJ.

HON. COURT OF APPEALS, HON.

ANIANO A. DESIERTO, in his

capacity as Ombudsman, HON.

ABELARDO L. APORTADERA, in

his capacity as Assistant Ombudsman,

and Ombudsmans Fact Finding and

Intelligence Bureau, represented by

Promulgated:

Director AGAPITO ROSALES,

Respondents.

July 29, 2005

x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari seeks to reverse and set aside the decision[1] dated August 28, 2003 and the resolution[2] dated January 15, 2004 of the Court of Appeals[3] in CA-G.R. SP No. 58264 which affirmed with modification public respondents (1) Joint Resolution dated January 22, 1999, which ordered, among other things, petitioners suspension for one (1) year for conduct prejudicial to the service; and (2) Order dated February 8, 2000, as reiterated in a Memorandum dated March 17, 2000, which denied petitioners motion for reconsideration but reduced his suspension to nine (9) months without pay. The Court of Appeals modified the above issuances by further reducing petitioners suspension from nine (9) months to six (6) months and one (1) day without pay.[4]

Petitioner Atty. Ronaldo P. Ledesma is the Chairman of the First Division of the Board of Special Inquiry (BSI) of the Bureau of Immigration and Deportation (BID). In a letter-complaint filed by Augusto Somalio with the Fact Finding and Intelligence Bureau (FIIB) of the Office of the Ombudsman, an investigation was requested on alleged anomalies surrounding the extension of the Temporary Resident Visas (TRVs) of two (2) foreign nationals. The FIIB investigation revealed seven (7) other cases of TRV extensions tainted with similar irregularities.

As a result, the FIIB, as nominal complainant, filed before the Administrative Adjudication Bureau (AAB) of the Office of the Ombudsman a formal complaint against herein petitioner. Also charged administratively were Atty. Arthel Caronongan and Ma. Elena P. Ang, Board Member and Executive Assistant, respectively, in petitioners division. With respect to petitioner, the complaint was treated as both a criminal and an administrative charge and docketed as OMB-0-98-0214 (criminal aspect), for nine (9) counts of violation of the Anti-Graft and Corrupt Practices Act and for falsification of public documents, and OMB-ADM-0-98-0038 (administrative aspect), for nine (9) counts of Dishonesty, Grave Misconduct, Falsification of Public Documents and Gross Neglect of Duty.

The complaint against petitioner, Caronongan and Ang alleged the following illegal acts: (a) irregularly granting TRVs beyond the prescribed period; and (b) using recycled or photocopied applications for a TRV extension without the applicants affixing their signatures anew to validate the correctness and truthfulness of the information previously stated therein. Specifically, petitioner and Caronongan allegedly signed the Memorandum of Transmittal to the Board of Commission (BOC) of the BID, forwarding the applications for TRV extension of several aliens whose papers were questionable.

In a Joint Resolution[5] dated January 22, 1999, Graft Investigation Officer Marlyn M. Reyes resolved the administrative cases filed against petitioner, Caronongan and Ang, as follows:

WHEREFORE, foregoing considered, it is respectfully recommended that:

1. Respondent ATTY. RONALDO P. LEDESMA be SUSPENDED from the service for one (1) year for Conduct Prejudicial to the Interest of the Service;

2. The instant case against ATTY. ARTHEL B. CARONONGAN be DISMISSED, the same having been rendered moot and academic; and

3. The instant case against respondent MA. ELENA P. ANG be DISMISSED for lack of sufficient evidence.

SO RESOLVED.[6]

Respondent Assistant Ombudsman Abelardo L. Aportadera, Jr. reviewed the Joint Resolution which was approved by respondent Ombudsman Desierto on December 29, 1999.[7]

In the meantime, on July 9, 1999, respondent Ombudsman approved a Resolution[8] dated June 22, 1999 of Graft Investigation Officer Marilou B. Ancheta-Mejica, dismissing the criminal charges against petitioner for insufficiency of evidence.[9]

Petitioner filed a motion for reconsideration[10] in the administrative case alleging that the BOC which reviews all applications for TRVs extension, approved the TRVs in question, hence, petitioner argued that it effectively declared the applications for extension regular and in order and waived any infirmity thereon.

In an Order[11] dated February 8, 2000, Graft Officer Reyes recommended the denial of the motion for reconsideration which was approved by respondent Ombudsman on March 24, 2000 but reduced the period of suspension from one (1) year to nine (9) months without pay.

On April 13, 2000, petitioner filed a petition for review with the Court of Appeals, which included a prayer for the issuance of a writ of preliminary prohibitory mandatory injunction and/or temporary restraining order to enjoin public respondents from implementing the order of suspension. The Court of Appeals issued the TRO on April 19, 2000.

In its Decision dated August 28, 2003, the Court of Appeals affirmed petitioners suspension but reduced the period from nine (9) months to six (6) months and one (1) day without pay.[12]

With the denial of his motion for reconsideration, petitioner filed the instant petition for review on the following grounds:

I.

IN PROMULGATING ITS ASSAILED DECISION, RESPONDENT COURT OF APPEALS MANIFESTLY OVERLOOKED THE FOLLOWING RELEVANT FACTS AND MATTERS WHICH, IF PROPERLY CONSIDERED, WOULD HAVE JUSTIFIED A DIFFERENT CONCLUSION IN FAVOR OF PETITIONER:

...

II.

THE PRONOUNCEMENT OF RESPONDENT COURT OF APPEALS THAT THE FINDING OF THE OMBUDSMAN IS NOT MERELY ADVISORY ON THE BUREAU OF IMMIGRATION (BI) IS CONTRARY TO THE PERTINENT PROVISION OF THE 1987 CONSTITUTION AND APPLICABLE DECISIONS OF THE HONORABLE COURT.

III.

RESPONDENT COURT OF APPEALS ALSO FAILED TO CONSIDER THAT THE OMBUDSMANS RESOLUTION FINDING PETITIONER ADMINISTRATIVELY LIABLE CONSTITUTES AN INDIRECT ENCROACHMENT INTO THE POWER OF THE BUREAU OF IMMIGRATION OVER IMMIGRATION MATTERS.[13]

The petition lacks merit.

Petitioner insists that it was the BOC which approved the questioned applications for the extension of the TRVs. He denies that he misled or deceived the BOC into approving these applications and argues that the BOC effectively ratified his actions and sanctioned his conduct when it approved the subject applications. Petitioner adds that he acted in good faith and the government did not suffer any damage as a result of his alleged administrative lapse.

We are not persuaded. In his attempt to escape liability, petitioner undermines his position in the BID and his role in the processing of the subject applications. But by his own admission,[14] it appears that the BSI not only transmits the applications for TRV extension and its supporting documents, but more importantly, it interviews the applicants and evaluates their papers before making a recommendation to the BOC. The BSI reviews the applications and when it finds them in order, it executes a Memorandum of Transmittal to the BOC certifying to the regularity and propriety of the applications.

In Arias v. Sandiganbayan,[15] we stated that all heads of offices have to rely to a reasonable extent on their subordinates. Practicality and efficiency in the conduct of government business dictate that the gritty details be sifted and reviewed by the time it reaches the final approving authority. In the case at bar, it is not unreasonable for the BOC to rely on the evaluation and recommendation of the BSI as it cannot be expected to review every detail of each application transmitted for its approval. Petitioner being the Chairman of the First Division of the BSI has direct supervision over its proceedings. Thus, he cannot feign ignorance or good faith when the irregularities in the TRV extension applications are so patently clear on its face. He is principally accountable for certifying the regularity and propriety of the applications which he knew were defective.

Petitioner could not validly claim that he was singled out for prosecution. It is of record that administrative cases were also filed against Caronongan and Ang, but extraneous circumstances

rendered the case against Caronongan moot while the case against Ang was dismissed because it was proven that she merely implemented the approved decision of the BOC.

Equally untenable is the contention that the BOCs approval of the defective applications for TRV extension cured any infirmities therein and effectively absolved petitioners administrative lapse. The instant administrative case pertains to the acts of petitioner as Chairman of the First Division of the BSI in processing nine (9) defective applications, independent of and without regard to the action taken by the BOC. It does not impugn the validity of the TRV extensions as to encroach upon the authority of the BID on immigration matters. The main thrust of the case is to determine whether petitioner committed any misconduct, nonfeasance, misfeasance or malfeasance in the performance of his duties.

Anent the second and third grounds, petitioner essentially puts in issue the import of the Ombudsmans findings. Petitioner questions the Court of Appeals pronouncement that the findings of the Ombudsman may not be said to be merely recommendatory upon the Immigration Commissioner. He argues that to uphold the appellate courts ruling expands the authority granted by the Constitution to the Office of the Ombudsman and runs counter to prevailing jurisprudence on the matter, particularly Tapiador v. Office of the Ombudsman.[16] Petitioner submits that the Ombudsmans findings that the TRV applications were illegal constitutes an indirect interference by the Ombudsman into the powers of the BOC over immigration matters.

We do not agree. The creation of the Office of the Ombudsman is a unique feature of the 1987 Constitution.[17] The Ombudsman and his deputies, as protectors of the people, are mandated to act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.[18] Foremost among its powers is the authority to investigate and prosecute cases involving public officers and employees, thus:

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed into law on November 17, 1989 and provided for the structural and functional organization of the Office of the Ombudsman. RA 6770 mandated the Ombudsman and his deputies not only to act promptly on complaints but also to enforce the administrative, civil and criminal liability of government officers and employees in every case where the evidence warrants to promote efficient service by the Government to the people.[19]

The authority of the Ombudsman to conduct administrative investigations as in the present case is settled.[20] Section 19 of RA 6770 provides:

SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which:

(1)

Are contrary to law or regulation;

(2)

Are unreasonable, unfair, oppressive or discriminatory;

(3) law;

Are inconsistent with the general course of an agencys functions, though in accordance with

(4)

Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5)

Are in the exercise of discretionary powers but for an improper purpose; or

(6)

Are otherwise irregular, immoral or devoid of justification.

The point of contention is the binding power of any decision or order that emanates from the Office of the Ombudsman after it has conducted its investigation. Under Section 13(3) of Article XI of the 1987 Constitution, it is provided:

Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

...

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (Emphasis supplied)

Petitioner insists that the word recommend be given its literal meaning; that is, that the Ombudsmans action is only advisory in nature rather than one having any binding effect, citing Tapiador v. Office of the Ombudsman,[21] thus:

... Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only recommend the removal of the public official or employee found to be at fault, to the public official concerned.[22]

For their part, the Solicitor General and the Office of the Ombudsman argue that the word recommend must be taken in conjunction with the phrase and ensure compliance therewith. The

proper interpretation of the Courts statement in Tapiador should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency concerned to implement the penalty imposed. In other words, it merely concerns the procedural aspect of the Ombudsmans functions and not its jurisdiction.

We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination.

The provisions of RA 6770 support public respondents theory. Section 15 is substantial ly the same as Section 13, Article XI of the Constitution which provides for the powers, functions and duties of the Ombudsman. We draw attention to subparagraph 3, to wit:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:

...

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis supplied)

We note that the proviso above qualifies the order to remove, suspend, demote, fine, censure, or prosecute an officer or employee akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsmans recommendation is not merely advisory in nature but is actually mandatory withi n the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged.[23] By stating therefore that the Ombudsman recommends the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer, which in this case would be the head of the BID.

It is likewise apparent that under RA 6770, the lawmakers intended to provide the Office of the Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate as protector of the people against inept and corrupt government officers and employees. The Office was granted the power to punish for contempt in accordance with the Rules of Court.[24] It was given disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies (with the exception only of impeachable officers, members of Congress

and the Judiciary).[25] Also, it can preventively suspend any officer under its authority pending an investigation when the case so warrants.[26]

The foregoing interpretation is consistent with the wisdom and spirit behind the creation of the Office of the Ombudsman. The records of the deliberations of the Constitutional Commission[27] reveal the following:

MR. MONSOD:

Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen.

However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution.

MR. RODRIGO:

Madam President, what I am worried about is if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them.

MR. MONSOD:

I agree with the Commissioner.

MR. RODRIGO:

Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature?[28]

MR. MONSOD:

Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630did not follow the main thrust; instead it created the Tanodbayan, ...

...

MR. MONSOD: (reacting to statements of Commissioner Blas Ople):

May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position, The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President.

With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed.

So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. (Emphasis supplied)[29]

It is thus clear that the framers of our Constitution intended to create a stronger and more effective Ombudsman, independent and beyond the reach of political influences and vested with powers that are not merely persuasive in character. The Constitutional Commission left to Congress to empower the Ombudsman with prosecutorial functions which it did when RA 6770 was enacted. In the case of Uy v. Sandiganbayan,[30] it was held:

Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the peoples complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions. ...[31]

In light of the foregoing, we hold that the Court of Appeals did not commit any error in finding the petitioner guilty of conduct prejudicial to the interest of the service and reducing petitioners period of suspension to six (6) months and one (1) day without pay, taking into account the education and length of service of petitioner.

WHEREFORE, the instant petition is DENIED. The Decision dated August 28, 2003 and the Resolution dated January 15, 2004 of the Court of Appeals in CA-G.R. SP No. 58264 are AFFIRMED.

16. ESTARIJA V. RANADA EDGARDO V. ESTARIJA v. EDWARD F. RANADA and the HON. OMBUDSMAN Aniano A. Desierto (now succeeded by Hon. Simeon Marcelo), and his DEPUTY OMBUDSMAN for Mindanao, Hon. Antonio E. Valenzuela G.R. No. 159314, 26 June 2006, Quisumbing, J. (En Banc) The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. Edgardo V. Estarija was the Harbor Master of the Philippine Ports Authority (PPA), Port of Davao, Sasa, Davao City. As such, he issued the necessary berthing permit for all ships that dockedin the Davao Port. In an administrative complaint for gross misconduct against him, it was alleged that he had been demanding money for the approval and issuance of berthing permits and for monthly contributions from the Davao Pilots Association, Inc. (DPAI). The complaint also alleged that in 1998, the National Bureau of Investigation (NBI) caught Estarija in possession of the marked money used to entrap the latter. The Ombudsman ordered Estarijas preventive suspension and filed a criminal case against him for violation of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act. Subsequently, the Ombudsman in the administrative case, found Estarija guilty of dishonesty and grave misconduct and dismissed him from government service with forfeiture of all leave credits and retirement benefits. In his motion for reconsideration, Estarija claimed that his dismissal was unconstitutional since the Ombudsmans administrative authority is merely recommendatory and that Rep. Act No. 6770 was also unconstitutional because it gives the Office of the Ombudsman additional powers that are not provided for in the Constitution. The Ombudsman denied the motion for reconsideration, which was affirmed by the Court of Appeals. The appellate court held that the attack on the constitutionality of Rep. Act No. 6770 was belated, having been made only in the motion for reconsideration of the decision of the Ombudsman, and that Estarija failed to overcome the presumption of constitutionality in favor of Rep. Act No. 6770. In this petition for review on certiorari, Estarija contends that he can not be liable for grave misconduct because he did not commit extortion as he was merely prodded by Adrian Cagata, an employee of the DPAI, to receive the money and that it makes no sense why he would extort money in consideration of the issuance of berthing permits since the signing of berthing permits is only ministerial on his part. He also maintains that Rep. Act No. 6770 is unconstitutional because the Ombudsman has only the powers enumerated under Section 13, Article XI of the Constitution, which powers do not include the power to directly remove, suspend, demote, fine, or censure a government official. According to him, the Ombudsmans power is merely to recommend the action to the officer concerned. The Solicitor General maintains otherwise, arguing that the framers of the 1987 Constitution did not intend to spell out, restrictively, each act which the Ombudsman may or may not do, since the purpose of the Constitution is to provide simply a framework within which to build the institution.

ISSUES: 1.) Whether or not there is substantial evidence to hold Estarija liable for dishonesty and grave misconduct; 2.) Whether or not the power of the Ombudsman to directly remove, suspend, demote, fine, or censure erring officials is constitutional RECENT JURISPRUDENCE POLITICAL LAW HELD: The petition is DENIED. Estarija is liable for dishonesty and grave misconduct. Estarija did not deny that he went to the DPAI office to collect, and that he actually received, the money which he demanded from the DPAI as monthly contribution. Since there was no pending transaction between the PPA and the DPAI, he had no reason to go to the latters office to collect any money. Even if he was authorized to assist in the collection of money due the agency, he should have issued an official receipt for the transaction, but he did not do so. The powers of the Ombudsman are not merely recommendatoryIn passing Rep. Act No. 6770, the Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by public officers and employees to make him a more active and effective agent of the people in ensuring accountability in public office. Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement his own actions. Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and functions. The Constitution does not restrict the powers of the Ombudsman in Sec. 13, Art. XI of the 1987 Constitution, but allows the legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Sec. 15, par. 3, the Congress gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress and the Judiciary. The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, under Rep. Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary.

17. OFFICE OF THE OMBUDSMAN V. VALERA C/O GELO

18. MACEDA V. VASQUEZ

Maceda v. Vasquez G.R. No. 102781. April 22, 1993. Nocon, J. Facts: Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial Court of Antique, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated September 18, 1991 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and (2) the Order dated November 22, 1951 denying petitioners motion for reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences. In his affidavit-complaint dated April 18, 1991 filed before the Office of the Ombudsman, respondent Napoleon A. Abiera of the Public Attorneys Office alleged that petitioner had falsified his Certificate of Service 1 dated February 6, 1989, by certifying that all civil and criminal cases which have been submitted for decision or determination for a period of 90 days have been determined and decided on or before January 31, 1998, when in truth and in fact, petitioner knew that no decision had been rendered in five (5) civil and ten (10) criminal cases that have been submitted for decision. Respondent Abiera further alleged that petitioner similarly falsified his certificates of service for the months of February, April, May, June, July and August, all in 1989; and the months beginning January up to September 1990, or for a total of seventeen (17) months. On the other hand, petitioner contends that he had been granted by the Supreme Court an extension of ninety (90) days to decide the aforementioned cases. Issue: whether the Office of the Ombudsman could entertain a criminal complaint for the alleged falsification of a judges certification submitted to the Supreme Court, and assuming that it can, whether a referral should be made first to the Supreme Court Held: In the absence of any administrative action taken against him by the Supreme Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Courts power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges and court personnels compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. Thus, the Ombudsman should first refer the matter of petitioners certificates of service to the Supreme Court for determination of whether said certificates reflected the true status of his pending

case load, as the Supreme Court has the necessary records to make such a determination. The Ombudsman cannot compel the Supreme Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-complaint. In fine, where a criminal complaint against a Judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to the Supreme Court for determination whether said Judge or court employee had acted within the scope of their administrative duties.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 102781. April 22, 1993. BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial Court, Antique, petitioner, vs. HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A. ABIERA, respondents. Bonifacio Sanz Maceda for and in his own behalf. Public Attorney's Office for private respondent. SYLLABUS 1. REMEDIAL LAW; JURISDICTION; OFFICE OF THE OMBUDSMAN HAS JURISDICTION TO INVESTIGATE OFFENSE COMMITTED BY JUDGE WHETHER OR NOT OFFENSE RELATES TO OFFICIAL DUTIES; REASON. Petitioner also contends that the Ombudsman has no jurisdiction over said cases despite this Court's ruling in Orap vs. Sandiganbayan, since the offense charged arose from the judge's performance of his official duties, which is under the control and supervision of the Supreme Court . . . The Court disagrees with the first part of petitioner's basic argument. There is nothing in the decision in Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State under the Revised Penal Code for his felonious act. 2. ID.; ID.; ID.; JURISDICTION TO INVESTIGATE OFFENSE RELATED TO OFFICIAL DUTIES SUBJECT TO PRIOR ADMINISTRATIVE ACTION TAKEN AGAINST JUDGE BY SUPREME

COURT; REASON. However, We agree with petitioner that in the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. 3. ID.; ID.; ID.; ID.; PROCEDURE TO BE OBSERVED BY OMBUDSMAN REGARDING COMPLAINT AGAINST JUDGE OR OTHER COURT EMPLOYEE; PURPOSE. Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination . . . In fine, where a criminal complaint against a judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said judge or court employee had acted within the scope of their administrative duties. 4. ID.; ID.; ID.; ID.; OMBUDSMAN CANNOT SUBPOENA SUPREME COURT AND ITS PERSONNEL; REASON. The Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-complaint. The rationale for the foregoing pronouncement is evident in this case. Administratively, the question before Us is this: should a judge, having been granted by this Court an extension of time to decide cases before him, report these cases in his certificate of service? As this question had not yet been raised with, much less resolved by, this Court, how could the Ombudsman resolve the present criminal complaint that requires the resolution of said question? DECISION NOCON, J p: The issue in this petition for certiorari with prayer for preliminary mandatory injunction and/or restraining order is whether the Office of the Ombudsman could entertain a criminal complaint for the alleged falsification of a judge's certification submitted to the Supreme Court, and assuming that it can, whether a referral should be made first to the Supreme Court. Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial Court of Antique, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated September 18, 1991 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and (2) the Order dated November 22, 1951 denying petitioner's motion for reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences. In his affidavit-complaint dated April 18, 1991 filed before the Office of the Ombudsman, respondent Napoleon A. Abiera of the Public Attorney's Office alleged that petitioner had falsified his Certificate of Service 1 dated February 6, 1989, by certifying "that all civil and criminal cases which have been submitted for decision or determination for a period of 90 days have been determined and decided on or before January 31, 1998," when in truth and in fact, petitioner knew that no decision had been rendered in five (5) civil and ten (10) criminal cases that have been submitted for decision. Respondent Abiera further alleged that petitioner similarly falsified his certificates of service for the months of February, April, May, June, July and August, all in 1989; and the months beginning January up to September 1990, or for a total of seventeen (17) months. On the other hand, petitioner contends that he had been granted by this Court an extension of ninety (90) days to decide the aforementioned cases.

Petitioner also contends that the Ombudsman has no jurisdiction over said case despite this Court's ruling in Orap vs. Sandiganbayan, 2 since the offense charged arose from the judge's performance of his official duties, which is under the control and supervision of the Supreme Court. Furthermore, the investigation of the Ombudsman constitutes an encroachment into the Supreme Court's constitutional duty of supervision over all inferior courts. The Court disagrees with the first Part of petitioner's basic argument. There is nothing in the decision in Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State under the Revised Penal Code for his felonious act. However, We agree with petitioner that in the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges' and court personnel's compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, 3 for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary. Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination. The Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavitcomplaint. 4 The rationale for the foregoing pronouncement is evident in this case. Administratively. the question before Us is this: should a judge, having been granted by this Court an extension of time to decide cases before him, report these cases in his certificate of service? As this question had not yet been raised with, much less resolved by, this Court. how could the Ombudsman resolve the present criminal complaint that requires the resolution of said question? In fine, where a criminal complaint against a Judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said Judge or court employee had acted within the scope of their administrative duties. WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby directed to dismiss the complaint filed by public respondent Atty. Napoleon A. Abiera and to refer the same to this Court for appropriate action.

SO ORDERED. Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Bellosillo, Melo and Quiason, JJ ., concur. Footnotes 1. New Judicial Form No. 86, Revised 1986. 2. L-50508-11, 139 SCRA 252 (1985). 3. The Order of September 18, 1991, in denying petitioner's ex-parte motion to refer the case to the Supreme Court, cited Article XI, section 13 (1) and (2), which provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on compliant be any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at it own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. 4. Rollo, p. 19.

19. CAOIBES, JR. V. OMBUDSMAN Full text: [G.R. No. 132177. July 19, 2001] JUDGE JOSE F. CAOIBES, JR., petitioner, vs. THE HONORABLE OMBUDSMAN and JUDGE FLORENTINO M. ALUMBRES, respondents. D E C I S I O N BUENA, J.: Petitioner Jose F. Caoibes, Jr., Presiding Judge of Branch 253 of the Regional Trial Court of Las Pias City, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated August 22, 1997 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and (2) the Order dated December 22, 1997 denying petitioners motion for reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences. On May 23, 1997, respondent Florentino M. Alumbres, Presiding Judge of Branch 255 of the Regional Trial Court of Las Pinas City, filed before the Office of the Ombudsman, a Criminal Complaint[1] for physical injuries, malicious mischief for the destruction of complainants eyeglasses, and assault upon a person in authority. Respondent alleged therein that on May 20, 1997, at the hallway on the third floor of the Hall of Justice, Las Pinas City, he requested petitioner to return the executive table he borrowed from respondent; that petitioner did not answer so respondent reiterated his request but befor e he could finish talking, petitioner blurted Tarantado ito ah, and boxed him at his right eyebrow and left lower jaw so that the right lens of his eyeglasses was thrown away, rendering his eyeglasses unserviceable; and that respondent had the incident blottered with the Las Pias Police Station. He prayed that criminal charges be filed before the Sandiganbayan against the petitioner. On June 13, 1997, respondent Judge lodged another Complaint[2] against petitioner, this time and administrative case with the Supreme Court, docketed as Adm. Case No. 97-387-RTJ, praying for the dismissal of petitioner from the judiciary on the ground of grave misconduct or conduct unbecoming a judicial officer. Said complaint is based on the same facts as those in the complaint filed earlier with the office of the Ombudsman. In the Order[3] dated June 25, 1997, the Office of the Ombudsman required petitioner to file a counter-affidavit within ten (10) days from receipt thereof. Instead of filing a counter-affidavit, petitioner filed on July 7, 1997 and Ex-Parte Motion for Referral to the Honorable Supreme Court,[4] praying that the Office of the Ombudsman hold its investigation of Case No. OMB-0-97-0903 in abeyance, and refer the same to the Supreme Court which, through the Office of the Court Administrator, is already investigating what transpired on May 20, 1997. Petitioner contended that the Supreme Court, not the Office of the Ombudsman, has the authority to make a preliminary determination of the respective culpability of petitioner and respondent Judge who, both being members of the bench, are under its exclusive supervision and control. On August 22, 197, the Office of the Ombudsman issued an Order[5] denying the motion for referral to the Supreme Court. Invoking Section 15 (1) of Republic Act No. 6770, the Office of the Ombudsman held that it is within its jurisdiction to investigate the criminal charges of respondent Judge against petitioner. Petitioner moved for reconsideration[6] of the foregoing order, maintaining that the Office of the Ombudsman should either refer Case No. OMB-0-97-0903 to the Supreme Court for preliminary evaluation, or await the latters resolution of Adm. Case No. 97 -387-RTJ which involves the same parties and subject matter. Otherwise, petitioner argues, the absurd situation may result wherein the Office of the Ombudsman files criminal charges against petitioner who, on the other hand, is declared without fault by the Supreme Court.

In the Order[7] dated December 22, 1997, the Office of the Ombudsman denied the motion for reconsideration and required petitioner to submit a counter-affidavit within an inextendible period of five (5) days from receipt thereof. Hence, petitioner filed this petition for certiorari, asking for the reversal of the assailed Orders dated August 22, 1997 and December 22, 1997 of the Office of the Ombudsman and the issuance of a writ of injunction or temporary restraining order, directing the Office of the Ombudsman to refrain from taking further action in the implementation of the challenged orders. The issue in this case is whether or not the Office of the Ombudsman should defer action on case No. OMB-0-97-0903 pending resolution of Adm. Case No. 97-387-RTJ. The issue is not novel. In Maceda vs. Vasquez,[8] this Court resolved in the affirmative the issue of whether or not the Ombudsman must defer action on a criminal complaint against a judge, or a court employee where the same arises from their administrative duties, and refer the same to this Court for determination whether said judge or court employee had acted within the scope of their administrative duties. Invoking Section 15 of R.A. 6770, the Office of the Ombudsman refuses to refrain from taking cognizance of Case NO. OMB-0-97-0903 in favor of this Court on the ground that, allegedly, the accusations therein against petitioner constitute simple criminal charges falling within the parameters of its constitutional power and duty to investigate and prosecute any act or omission of any public officer or employee which appears to be illegal, unjust, improper or inefficient. Section 15 (1) of R.A. 6770 grants, among others, the following powers and duties to the Office of the Ombudsman: (1) Investigate and prosecute on its own, or on complai nt by any person, any act or omission of any public officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may takeover, at any stage, from any investigatory agency of Government, the investigation of such cases; (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties; (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance therewith, or enforce its disciplinary authority as provided in Section 21 of this Act... The foregoing provisions supply the legal basis for the Ombudsman in maintaining its jurisdiction over the charges of physical injuries, malicious mischief and assault upon a person in authority filed by respondent Judge against petitioner. This conclusion seems to be reinforced by Section 16 of R.A. 6770 which states that the powers of the Office of the Ombudsman apply to all kinds of malfeasance, misfeasance and nonfeasance committed by public officers and employees during their tenure or office. The Office of the Solicitor General in its Manifestations, in Lieu of Comment, correctly opined and we quote:

xxx the grant of the aforequoted powers to the Office of the Ombudsman is not tantamount to giving it exclusive authority thereon. In fact, Section 15 (1) of R.A. 6770, which is relied upon by the Office of the Ombudsman in its assailed order, provides that it has primary, not exclusive, jurisdiction over graft and corruption cases and felonies committed by public officers in relation to their office. Moreover, it was held in Sanchez vs. Demetriou, 227 SCRA 627 [1993], that the Ombudsmans power under Section 15 (1) of R.A. 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged.[9] It appears that the present case involves two members of the judiciary who were entangled in a fight within court premises over a piece of office furniture. Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with exclusive administrative supervision over all courts and its personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether and administrative aspect is involved therein. This rule should hold true regardless of whether an administrative case based on the act subject of the complaint before the Ombudsman is already pending with the Court. For, aside from the fact that the Ombudsman would not know of this matter unless he is informed of it, he should give due respect for and recognition of the administrative authority of the Court, because in determining whether an administrative matter is involved, the Court passes upon not only administrative liabilities but also other administrative concerns, as is clearly conveyed in the case of Maceda vs. Vasquez.[10] The Ombudsman cannot dictate to, and bind the Court, to its findings that a case before it does or does not have administrative implications. To do so is to deprive the Court of the exercise of its administrative prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is a dangerous policy which impinges, as it does, on judicial independence. Maceda is emphatic that by virtue of its constitutional power of administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk, it is only the Supreme Court that can oversee the judges and court personnels compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. WHEREFORE, the petition for certiorari is hereby GRANTED. The Ombudsman is hereby directed to dismiss the complaint filed by respondent Judge Florentino M. Alumbres and to refer the same to this Court for appropriate action. SO ORDERED. Bellosillo, (Chairman), Mendoza, and De Leon, Jr., JJ., concur. Quisumbing, J., on official business. digest: FACTS: In 1982, Jose Caoibes Jr., et al. (Caoibes, Jr., et al.) and Corazon CaoibesPantoja (Pantoja) entered to a contract of sale stating that a certain lot will be transferred, ceded and conveyed by the former in favour of the latter in consideration for a sum of money. The agreement included the stipulation that Pantoja will be subrogated or substituted to whatever rights, interests or representations Caoibes Jr., et al. may have pending land registration proceeding. Fourteen years after the execution of the parties, Pantoja filed a motion to intervene and be substituted as applicant in the Land Registration Court. The Land Registration Court denied the motion. Pantoja filed a complaint before the Regional Trial Court (RTC) for specific performance of the agreement. Caoibes, Jr., et al. opposed on the grounds of prescription. The RTC ruled in favor of Caoibes,

Jr., et al. On appeal, the Court of Appeals (CA) reversed the RTC, holding that prescription had not yet set in. ISSUE: Whether or not the action of for prescription on Pantoja started from the time of the agreement of the parties RULING: The law does not require that the application for registration be amended by substituting the "buyer" or the "person to whom the property has been conveyed" for the applicant. Neither does it require that the "buyer" or the "person to whom the property has been conveyed" be a party to the case. He may thus be a total stranger to the land registration proceedings. The only requirements of the law are: (1) that the instrument be presented to the court by the interested party together with a motion that the same be considered in relation with the application; and (2) that prior notice be given to the parties to the case. The agreement of the parties is analogous to a deed of sale in favour of Pantoja, it having transferred ownership for and in consideration of her payment of the loan.. The agreement having been made through public instrument, the execution was equivalent to the delivery of the property to Pantoja. The agreement is of course in consonance with Sec. 22 of P.D. 1529 (Property Registration Decree which became effective on June 11, 1978). In light of the law and jurisprudence, the substitution by Pantoja of Caoibes, Jr., et al. as applicant in the land registration case over Lot 2 is not even necessary. All Pantoja has to do is to comply with the requirements under the above-quoted Sec. 22 of the Property Registration Decree. It was unnecessary for Pantoja to file the case for specific performance subject of the present petition against Caoibes, Jr., et al. to honor their agreement allowing her to be substituted in their stead as applicant in the land registration proceeding.

20. LASTIMOSA V. VASQUEZ

L20 LASTIMOSA VS. VASQUEZ Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 116801 April 6, 1995 GLORIA G. LASTIMOSA, First Assistant Provincial Prosecutor of Cebu, petitioner, vs. HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE ARTURO C. MOJICA, DEPUTY OMBUDSMAN FOR THE VISAYAS, and HONORABLE FRANKLIN DRILON, SECRETARY OF JUSTICE, and UNDERSECRETARY OF JUSTICE RAMON J. LIWAG, respondents.

MENDOZA, J.: This case requires us to determine the extent to which the Ombudsman may call upon government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as ordered by the Ombudsman, an administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime was filed against her and the Provincial Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the Ombudsman. In the meantime the two were placed under preventive suspension. This is a petition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman with respect to the two proceedings. The background of this case is as follows: On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor of

Santa Fe, Rogelio Ilustrisimo. 1 The cases were filed with the Office of the OmbudsmanVisayas where they were docketed as OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)93-0036, respectively. The complaint was assigned to a graft investigation officer who, after an investigation, found no prima facieevidence and accordingly recommended the dismissal of the complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez, disapproved the recommendation and instead directed that Mayor Ilustrisimo be charged with attempted rape in the Regional Trial Court. 2 Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao City, . . ." 3 The case was eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa. It appears that petitioner conducted a preliminary investigation on the basis of which she found that only acts of lasciviousness had been committed. 4 With the approval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial Court of Santa Fe. 5 In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. 6 As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to show cause why they should not be punished for contempt for "refusing and failing to obey the lawful directives" of the Office of the Ombudsman. 7 For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor were given until August 3, 1994 within which to submit their answer. 8 An answer 9 was timely filed by them and hearings were thereupon conducted. It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One was an administrative complaint for violation of Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) 10and another one was a criminal complaint for violation of 3(e) of Republic Act No. 3019 and Art. 208 of the Revised Penal Code. 11 The complaints were based on the alleged refusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape.

In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of six (6) months, 12 pursuant to Rule III, 9 of the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in relation to 24 of R.A. No. 6770. The order was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial Prosecutor of Cebu. On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders 13 in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter affidavits and controverting evidence. On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari and prohibition to set aside the following orders of the Office of the Ombudsman and Department of Justice: (a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica and related orders, referring to the Office of the Cebu Provincial Prosecutor the records of OMB-VIS-CRIM-93-0140, entitled Jessica V. Dayon vs. Mayor Rogelio Ilustrisimo, "for filing of the appropriate action (for Attempted Rape) with the Regional Trial Court of Danao City. (b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in writing within three (3) days from receipt why they should not be punished for indirect Contempt of the Office of the Ombudsman "for refusing and failing . . . to file the appropriate Information for Attempted Rape against Mayor Rogelio Ilustrisimo. (c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J. Liwag, ordering the Office of the Provincial Prosecutor to comply with the directive of the Office of the Ombudsman that a charge for attempted rape be filed against respondent Mayor Ilustrisimo in recognition of the authority of said Office. (d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved by Ombudsman Conrado Vasquez, and related orders in OMBVIS-(ADM)-94-0189, entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension for a period of six (6) months, without pay.

(e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to implement the letter dated August 15, 1994 of Ombudsman Vasquez, together with the Order dated August 15, 1994, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension. (f) Department Order No. 259 issued by Acting Secretary Liwag on August 18, 1994, designating Assistant Regional State Prosecutor Concepcion Acting Provincial Prosecutor of Cebu. Petitioner raises a number of issues which will be discussed not necessarily in the order they are stated in the petition. I. The pivotal question in this case is whether the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo. Lastimosa claims that the Office of the Ombudsman and the prosecutor's office have concurrent authority to investigate public officers or employees and that when the former first took cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the latter. It then became the duty of the Ombudsman's office, according to petitioner, to finish the preliminary investigation by filing the information in court instead of asking the Office of the Provincial Prosecutor to do so. Petitioner contends that the preparation and filing of the information were part and parcel of the preliminary investigation assumed by the Office of the Ombudsman and the filing of information in court could not be delegated by it to the Office of the Provincial Prosecutor. Petitioner defends her actuations in conducting a preliminary investigation as having been made necessary by the insistence of the Ombudsman to delegate the filing of the case to her office. In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office. For this reason it is argued that the Office of the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders and to cite them for indirect contempt for such refusal. Petitioner's contention has no merit. The office of the Ombudsman has the power to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient." 14 This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected

with, or arise from, the performance of his official duty 15 It is enough that the act or omission was committed by a public official. Hence, the crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute. In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance. 31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides: Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate of deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him as herein provided shall be under his supervision and control. (Emphasis added) It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an information for attempted rape against Mayor Rogelio Ilustrismo. It does not matter that the Office of the Provincial Prosecutor had already conducted the preliminary investigation and all that remained to be done was for the Office of the Provincial Prosecutor to file the corresponding case in court. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. This is because under 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) decision. 16 Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman. II. The records show that despite repeated orders of the Ombudsman, petitioner refused to file an information for attempted rape against Mayor Ilustrisimo, insisting that after investigating the complaint in the case she found that he had committed only acts of lasciviousness. 15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein." There is no merit in the argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an administrative, rather than judicial, proceeding before the Office of the Ombudsman. As petitioner herself says in another context, the

preliminary investigation of a case, of which the filing of an information is a part, is quasi judicial in character. Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance, disobedience or resistance of a lawful process, order or command of the Ombudsman thus making her liable for indirect contempt under Rule 71, 3 of the Rules of Court is for respondents to determine after appropriate hearing. At this point it is important only to note the existence of the contempt power of the Ombudsman as a means of enforcing his lawful orders. III. Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the Ombudsman's power to place her in the meantime under preventive suspension. The pertinent provisions of the Ombudsman Act of 1989 state: 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. 22. Preventive Suspension. The Ombudsman or his Deputy may suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. A. Petitioner contends that her suspension is invalid because the order was issued without giving her and Provincial Prosecutor Kintanar the opportunity to refute the charges

against them and because, at any rate, the evidence against them is not strong as required by 24. The contention is without merit. Prior notice and hearing is a not required, such suspension not being a penalty but only a preliminary step in an administrative investigation. As held in Nera v. Garcia: 17 In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the opportunity to prove his innocence. (Emphasis added). It is true that, under 24 of the Ombudsman's Act, to justify the preventive suspension of a public official, the evidence against him should be strong, and any of the following circumstances is present: (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. As held in Buenaseda v. Flavier, 18 however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case: The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. . . . 19 In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of petitioner and Provincial Prosecutor Kintanar on the following grounds:

A careful assessment of the facts and circumstances of the herein cases and the records pertaining thereto against respondents [Provincial Prosecutor Kintanar and herein petitioner] clearly leads to the conclusion that the evidence on record of guilt is strong and the charges involved offenses of grave misconduct, gross neglect of duty and dishonesty which will warrant respondents [Provincial Prosecutor Kintanar and herein petitioner] removal from the service. Moreover, considering the unabashed attitude of respondents in openly announcing various false pretexts and alibis to justify their stubborn disregard for the lawful directives of the Ombudsman as their official position in their pleadings filed in OMB-VIS-0-94-0478 and in print and broadcast media, the probability is strong that public service more particularly in the prosecution of cases referred by the Office of the Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and prejudiced and the records of said cases even be tampered with if respondents [Provincial Prosecutor Kintanar and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's Office during the pendency of these proceedings. Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts justifying the preventive suspension of petitioner and the Provincial Prosecutor since the acts alleged in the administrative complaint against them were done in the course of their official transaction with the Office of the Ombudsman. The administrative complaint against petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent Deputy Ombudsman did not have to go far to verify the matters alleged in determine whether the evidence of guilt of petitioner and Provincial Prosecutor was strong for the purpose of placing them under preventive suspension. Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be hampered. 20 In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. B. Petitioner questions her preventive suspension for six (6) months without pay and contends that it should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in error. She is referring to cases where the law is either silent or

expressly limits the period of suspension to ninety (90) days. With respect to the first situation, we ruled in the case of Gonzaga v. Sandiganbayan 21 that To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows: 1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuances thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act. 2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall both be counted in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the continuance of his suspension shall be for a reasonable time as the circumstances of the case may warrant. On the other hand, petitioner and the Provincial Prosecutor were placed under preventive suspension pursuant to 24 of the Ombudsman Act which expressly provides that "the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay." Their preventive suspension for six (6) months without pay is thus according to law. C. Nor is there merit in petitioner's claim that the contempt charge should first be resolved before any action in the administrative complaint case can be taken because the contempt case involves a prejudicial question. There is simply no basis for this contention. The two cases arose out of the same act or omission and may proceed hand in hand, or one can be heard before the other. Whatever order is followed will not really matter. WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED. SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Francisco, JJ., concur. Romero, J., is on leave.

CASE DIGEST Facts: On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed with the Office of the Ombudsman a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio Ilustrisimo. The graft investigation officer assigned to the case found, after investigation, no prima facie evidence and accordingly recommended for the dismissal of the case. However, upon review of the matter, Ombudsman, Hon. Conrado Vasquez, disapproved the recommendation and instead directed that Mayor Illustrisimo be charged with attempted rape in the Regional Trial Court. The case was then referred by the Deputy Ombudsman for Visayas, Arturo Mojica, to the Cebu Provincial Prosecutor Oliveros E. Kintanar for the filing of appropriate information with the RTC of Danao City. The same was eventually assigned to herein petition, First Assistant Provincial Prosecutor Gloria G. Lastimosa. On preliminary investigation, petitioner found that only acts of lasciviousness had been committed. With the approval of the Provincial Prosecutor Kintanar, an information for act of lasciviousness against Mayor Ilustrisimo on July 4, 1994 with the MTC of Santa Fe. Deputy Ombudsman Mojica wrote two letters to the Provincial Prosecutor inquiring on any action taken on the referred case. And since no case for attempted rape had been filed, Deputy Ombudsman Mojica ordered the Provincial Prosecutor and petitioner Lastimosa to show cause why they should not be punished for contempt for refusing and failing to obey the lawful directives of the Office of the Ombudsman. For this purpose, hearings were duly conducted. As a result, Provincial Prosecutor Kintanar and petitioner Gloria Lastimosa were placed under preventive suspension for a period of six (6) months. Issue/s: A. Whether the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo. B. Whether the Office of the Ombudsman has jurisdiction over the case against the mayor because the crime was not committed in relation to a public office and whether it has authority to place petitioner and Provincial Prosecutor Kintanar under preventive suspension.

Ruling: The court ruled that the Office of the Ombudsman has the power to investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act of omission appears to be illegal, unjust, improper or inefficient. This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected with, or arise from the performance of his official duty. It is enough that the act or omission was committed by a public official. Hence, the crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute. In the exercise of his power, the Ombudsman is authorized to call on prosecutors for assistance as provided in Section 31 of the Ombudsman Act of 1989. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. This is because under Section 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) decision. Section 15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein." There is no merit in the argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an administrative, rather than judicial, proceeding before the Office of the Ombudsman. Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the Ombudsman's power to place her in the meantime under preventive suspension. Sections 21 & 24 of the same Act provides for this power. Under Section 24 of the Ombudsman Act, preventive suspension is warranted if evidence against the public official is strong. As held in Buenaseda v. Flavier, whether the evidence of guilt is strong is left to the determination of the Ombudsman. The administrative complaint against petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be hampered. In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. Under the same provision of the law, it provides that the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than

six months, without pay. Their preventive suspension for six (6) months without pay is thus according to law. The petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED.

21. CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS AND SEWAGE SYSTEM (MWSS) V. VASQUEZ C/O CESS

22. ACOP V. OFFICE OF THE OMBUDSMAN

[ G.R. No. 120422, September 27, 1995 ] CHIEF SUPT. ROMEO ACOP VS. THE OFFICE OF THE OMBUDSMAN AND HON. MANUEL B. CASACLANG
FACTS: On May 18, 1995, eleven suspected members of the notorious robbery gang, "Kuratong Baleleng," were killed in an alleged shootout with composite teams of the National Capital Regional Command (NCRC), Traffic Management Command (TMC), Presidential Anti-Crime Commission (PACC), Central Police District Command (CPDC) and Criminal Investigation Command (CIC). SPO2 Eduardo de los Reyes of the Central Intelligence Command (CIC) then made an expose', stating that there was no shootout and that the "Kuratong Baleleng" members were victims of summary execution. The Commission on Human Rights (CHR) received the complaint of the relatives of the slain suspected gang members, accusing the PACC, NCRC, TMC, CIC and CPDC of murder. Acting Ombudsman Villa directed public respondent DeputyOmbudsman Casaclang to create a panel to monitor the investigations being conducted by the Commission on Human Rights, the Senate Committee on Justice and Human Rights, and the Philippine National Police (PNP) Director for Investigation regarding the alleged shootout. The panel recommended that a preliminary investigation be conducted against petitioners and all the participating personnel listed in the After Operations Report of the PNP. Casaclang then issued the order directing petitioner[s] and nine others to submit their counter-affidavits and controverting evidence within ten days from receipt thereof, which the petitioners failed to comply. The petitioners instead filed a motion with Casaclang to suspend the preliminary investigation against them pending resolution of the petition for certiorari filed with the Supreme Court. Casaclang granted the motion, only to be reversed by Villa. Villa then took over "the direct supervision and control of the preliminary investigation". The petitioners challenged the take-over, asserting that neither the Ombudsman nor his Deputy may conduct preliminary investigation.

ISSUES:

1.

Whether or not the Ombudsman and Deputy Ombudsman are authorized to conduct preliminary investigations 2. Whether or not public respondent Deputy Ombudsman for Military Manuel Casaclang committed grave abuse of discretion when he set the case for preliminary investigation and required the petitioners to submit their counteraffidavits before any preliminary evaluation of the complaint as required by Section 2, Rule II of Administrative Order No. 07 of the Office of theOmbudsman. RULING: 1. Yes. By express mandate of paragraph 8, Section 13, Article XI of the Constitution, among the functions of the Ombudsman are those other powers, functions or duties as may be provided by law. Through the passage of R.A. No. 6770, the Office of the Special Prosecutor was made an organic component of the Office of the Ombudsman, while theOmbudsman was granted the following powers, among others: 1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; 2. Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided xxx xxx xxx The petitioners have not proven any distinction between "the duty to investigate" and "the power to conduct preliminary investigations"; neither have the petitioners established that the power remains with the Tanodbayan, now the Special Prosecutor. Deputy Ombudsman - Section 5, Article XI of the Constitution provides: SEC. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. The deliberations on the Deputy for the military establishment do not yield conclusive

evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. On the contrary, a review of the relevant Constitutional provisions reveals otherwise. As previously established, the Ombudsman "may exercise such other powers or perform such functions or duties" as Congress may prescribe through legislation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsman's deputies, one being the deputy for the military establishment. 2. The Court does not share the petitioners' view that Casaclang set the case for preliminary investigation and required the petitioners to file their counter-affidavits without the conduct of a preliminary evaluation of the complaint as required by the Rules of the Office of the Ombudsman. In this case, no evidence to that effect was adduced. On the contrary, the Panel of Investigators submitted its evaluation report on 8 June 1995, and it was only on 14 June 1995 that respondent Casaclang issued the questioned order. Moreover, the evaluation required is merely preliminary in nature and scope, not a detailed inquiry. Likewise, the conduct of such evaluation involves the exercise of discretion which has not been shown to be abused in the instant case.

23. KHAN JR V. OFFICE OF THE OMBUDSMAN

G.R. No. 125296 July 20, 2006 ISMAEL G. KHAN, JR. vs. OFFICE OF THE OMBUDSMAN FACTS: In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders. Petitioners filed to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019. In a resolution dated July 13, 1989, the Deputy Ombudsman denied petitioners' omnibus motion to dismiss. On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the Government Service Insurance System (GSIS). Therefore, it became a government-owned or controlled corporation (GOCC). On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government." Petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against them although they were officers of a private corporation and not "public officers." In support of their petition, petitioners argue that: the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law. We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation of RA 3019. ISSUES: WON the Office of the Ombudsman has jurisdiction over PAL and WON the officers are covered by RA 3019. HELD: No. JURISDICTION OF THE OMBUDSMAN OVER GOCCS IS CONFINED ONLY TO THOSE WITH ORIGINAL CHARTERS The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2) provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

xxx

xxx

xxx

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (italics supplied) xxx xxx xxx

Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. In Juco v. National Labor Relations Commission, we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners. Petitioners, as then Officers of PAL, were not Public Officers Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied definitions and concepts are found in different statutes and jurisprudence. Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto, the Court extensively quoted his exposition on the term "public officers": A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. xxx xxx xxx

Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the

individual is not a public officer.16 (italics supplied) From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign executive, legislative or judicial functions. The explication of the term is also consistent with the Court's pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to carry out governmental functions. In any event, PAL has since reverted to private ownership and we find it pointless to scrutinize the implications of a legal issue that technically no longer exists. WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE and ANNULLED. SO ORDERED.

24. GARCIA-RUEDA V. PASCASIO

G.R. No. 118141 September 5, 1997 GARCIA-RUEDA vs. PASCASIO FACTS: Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of "unknown cause," according to officials of the UST Hospital. Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to conduct an autopsy on her husband's body. Consequently, the NBI ruled that Florencio's death was due to lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat- Reyes be charged for Homicide through Reckless Imprudence before the Office of the City Prosecutor. During the preliminary investigation, what transpired was a confounding series of events which we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the "interest of justice and peace of mind of the parties," recommended that the case be re-raffled on the ground that Prosecutor Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor Dimagiba. Pending the resolution of petitioner's motion for reconsideration regarding Prosecutor Dimagiba's resolution, the investigative "pingpong" continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 3against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the complaint for lack of evidence. In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019. ISSUE: Whether or not expert testimony is necessary to prove the negligent act of the respondent. RULING: In accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that petitioner should have exercised. The better and more logical remedy under the circumstances would have been to appeal the resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department of Justice's Order No. 223, otherwise known as the "1993 Revised Rules on Appeals From Resolutions In Preliminary Investigations/Reinvestigations," as amended by Department Order No. 359, Section 1 of which provides: Sec. 1. What May Be Appealed. Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: "The Secretary of Justice may reverse, affirm or modify the appealed resolution." On the other hand, "He may motu proprio or on motion of the appellee, dismiss outright the appeal on specified grounds." In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in dismissing the complaint against the Prosecutors and this Court will not interfere with the same. Petition is dismissed.

25. FRIVALDO V. COMELEC C/O NIKKI, WORNG CASE

26. MERCADO V. MANZANO

MERCADO vs MANZANO Facts: Petitioner Ernesto Mercado and Private respondent Eduardo Manzano are candidates for the position of Vice-Mayor of Makati City in the May, 1998 elections. Private respondent was the winner of the said election but the proclamation was suspended due to the petition of Ernesto Mamaril regarding the citizenship of private respondent. Mamaril alleged that the private respondent is not a citizen of the Philippines but of the United States. COMELEC granted the petition and disqualified the private respondent for being a dual citizen, pursuant to the Local Government code that provides that persons who possess dual citizenship are disqualified from running any public position. Private respondent filed a motion for reconsideration which remained pending until after election. Petitioner sought to intervene in the case for disqualification. COMELEC reversed the decision and declared private respondent qualified to run for the position. Pursuant to the ruling of the COMELEC, the board of canvassers proclaimed private respondent as vice mayor. This petition sought the reversal of the resolution of the COMELEC and to declare the private respondent disqualified to hold the office of the vice mayor of Makati. Issue: Whether or Not private respondent is qualified to hold office as Vice-Mayor. Held: Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Private respondent is considered as a dual citizen because he is born of Filipino parents but was born in San Francisco, USA. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen.

By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippine, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

EN BANC

[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents. DECISION MENDOZA, J.: Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano Ernesto S. Mercado Gabriel V. Daza III 103,853 100,894 54,275[1]

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998, [2] the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELECs Second Division said: What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on

September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City. On May 8, 1998, private respondent filed a motion for reconsideration. [3] The motion remained pending even until after the election held on May 11, 1998. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in disqualification.[4] Petitioners motion was opposed by private respondent. the case for

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. [5] The pertinent portions of the resolution of the COMELEC en banc read: As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli. He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States. It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively

renounced his US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship. At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondents certificate of candidacy. We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections. ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City. Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati. This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that [T]he COMELEC en banc ERRED in holding that: A. Under Philippine law, Manzano was no longer a U.S. citizen when he: 1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and, 2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998. B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati. We first consider the threshold procedural issue raised by private respondent Manzano whether petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioners motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention: Section 1. When proper and when may be permitted to intervene . Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. .... Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenors rights may be fully protected in a separate action or proceeding. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is a defeated candidate for the vice -mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment. The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC,[6] reiterated in several cases,[7] only applies to cases in which the election of the

respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a Motion for Leave to File Intervention on May 20, 1998, there had been no proclamation of the winner, and petitioners purpose was precisely to have private respondent disqualified from running for [an] elective local position under 40(d) of R.A. No. 71 60. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioners interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. The failure of the COMELEC en banc to resolve petitioners motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioners motion for intervention but also with the substantive issues respecting private respondents alleged disqualification on the ground of dual citizenship. This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for any elective local position: . . . (d) Those with dual citizenship. This provision is incorporated in the Charter of the City of Makati.[8]

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through 40(d) of the Local Government Code, Congress has command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. [9] For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows:[10] . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance - and I reiterate a dual allegiance - is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all. What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600

chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the Peoples Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council. When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources. Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest. And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW. In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus:[11] . . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the Peoples Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security. I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the

problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship? Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: [D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control. [12] By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: [13] SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person with dual citizenship is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I have only one citizenship. SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. This is similar to the requirement that an applicant for naturalization must renounce all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty [14] of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado v. Republic,[15] it was held: [W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent effectively renounced his U.S. citizenship under American law, so that now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority. In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondents certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath: 6. I AM A FILIPINO CITIZEN NATURALIZED) NATURAL-BORN .... 10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR . 11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. 12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held:[17] It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him from running for any elective local position? We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he had long (STATE IF NATURAL-BORN OR

renounced and had long abandoned his American citizenship-long before May 8, 1995. At best, Frivaldo was stateless in the interim-when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship. On this point, we quote from the assailed Resolution dated December 19, 1995: By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government. These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. There is, therefore, no merit in petitioners contention that the oath of allegiance contained in private respondents certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioners contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar v. COMELEC[18] applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be express, it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either express or implied . To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this

country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. DefensorSantiago,[19] we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED.

27. CAASI V. CA L. 27 Caasi v. Court of Appeals Facts: This case refers to the two consolidated petitions both seeking the disqualification under Section 68 of the Omnibus Election Code of Merito Miguel, for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18,1988, on the ground that he is a green card holder hence, a permanent resident of the United States of America and not of Bolinao. Miguel admits that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He argued that he obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there and that he is a permanent resident of Bolinao, Pangasinan and that he voted in all previous elections, including the plebiscite on February 2, 1987 for the ratification of the 1987 Constitution and the congressional elections on May 18, 1987. After hearing the consolidated petitions before it, the COMELEC dismissed the petitions. It held that the possession of a green card by the respondent Miguel does not sufficiently establish that he has abandoned his residence in the Philippines. However, in his dissenting opinion, Commissioner Badoy, Jr. opined that a green card holder being a permanent resident of oran immigrant of a foreign country and respondent having admitted that he is a green cardholder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. Issues: Whether a green card is proof that the holder thereof is a permanent resident of the United States such that it would disqualify him to run for any elective local position Held: Yes. Miguel's application for immigrant status and permanent residence in the U.S.and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. He did not go to the United States merely to visit his children or his doctor there. He entered the US with the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Issue:Whether Merito Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18, 1988 local elections, waive his status as a permanent resident or immigrant of the United States Held:No. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, the conclusion is that he was disqualified to run for said public office. Hence, his election was null and void. Residence in the municipality where he intends to run for elective office for

at least one (1) year at the time of filing his certificate of candidacy is one of the qualifications that a candidate for elective public office must possess. Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a .

period of only three (3) months (not one year) after his return to the Philippines in November1987 and before he ran for mayor of that municipality on January 18, 1988.In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof Full Case: These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao.

G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder.

In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987.

After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:

The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).

In his dissenting opinion, Commissioner Badoy, Jr. opined that:

A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)

In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held:

... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

Section 18, Article XI of the 1987 Constitution provides:

Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides:

SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC).

In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case.

In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in

1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was, "Permanently."

On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed:

Alien Registration Receipt Card.

Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)

Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it.

An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.)

As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein.

Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility.

In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529-530.)

Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.

The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides:

xxx

xxx

xxx

Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.'

Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States?

To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code).

Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office.

The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.

Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not

allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak.

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void.

WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.

SO ORDERED.

28. PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS V. DESIERTO C/O JP

29. ARGANA V. REPUBLIC C/O BETHANY

30. URBANO V. CHAVEZ L30 Urbano VS Chavez, 183 SCRA 347 (1990) NATURE Petition to review decision of RTC Pasig FACTS - there are 2 cases involved here: a criminal action for violation of the Anti-Graft and Corrupt Practices Act (RA 3019) and an civil action for damages arising from a felony (defamation through a published interview whereby Chavez imputed that Nemesio Co was a close associate of Marcos), both against Solicitor General Francisco Chavez (among others) - in the criminal case (filed in the Office of the Ombudsman), the Office of the SolGen (OSG) entered its appearance for Chavez and the other accused (DILG Sec and 2 sectoral reps) as far as the Prelim Investigation is concerned. Urbano et. al. filed a special civil action for prohibition in the SC to enjoin the SolGen and his associates from acting as counsel for Chavez in the PI. The contention is in the event that an information is filed against the accused, the appearance of the OSG in the PI would be in conflict with its role as the appellate counsel for the People of the Phils (counsel at the first instance is the provincial/ state prosecutor). - in the action for damages, the OSG likewise acted as counsel for Chavez, who was then the SolGen and counsel for PCGG, the agency responsible for the investigation of graft and corrupt practices of the Marcoses. The OSG filed for extension of time to file required pleading, and afterwards filed a motion to dismiss on behalf of Chavez. Petitioner Co objected to appearance of OSG as counsel, contending that he is suing Chavez in his personal capacity. - OSG manifested that it is authorized to represent Chavez or any public official even if the said official is sued in his personal capacity pursuant to the unconditional provisions of PD478 which defines the functions of OSG, as well as EO300 which made OSG an independent agency under the Office of the President - RTC denied the petition, thus allowing the appearance of OSG as counsel. It also denied the MFR.

ISSUE/S 1. WON the OSG has authority to appear for (a) a certa in govt official in the PI of their case before the Ombudsman and (b) the SolGen in a suit for damages arising from a crime HELD 1. NO. The OSG is not authorized to represent a public official at ANY stage of a criminal case or in a civil suit for damages arising from a felony (applies to all public officials and employees in the executive, legislative and judicial branches).

Reasoning PD47811 defines the duties and functions of OSG: SEC1. The OSG shall represent the Govt of the Phils, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. x x x - the OSG submits that since there is no qualification, it can represent any public official without any qualification or distinction in any litigation. - Same argument seems to apply to a similar provision in the Rev Admin Code (Sec. 1661: As principal law officer of the Govt, the SolGen shall have the authority to act for and represent the Govt , its officers and agents in any official investigation, proceeding or matter requiring the services of a lawyer). In Anti-Graft League v Ortega, SC interpreted Sec. 1661 to embrace PI. However, should an info be filed after, then OSG can no longer act as counsel. The rationale given was that public officials are subjected to numerous suits, and threats of criminal prosecution could stay the hand of the public official. OSG provides assurance against timidity in that they will be duly represented by counsel in the PI. - However, the court declared this ruling abandoned in this case. The anomaly in this ruling becomes obvious when, in the event of a judgment of conviction, the case is brought on appeal to the appellate courts. The OSG, as the appellate counsel of the People, is expected to take a stand against the accused. More often than not, it does. Accordingly, there is a clear conflict of interest here, and one which smacks of ethical considerations, where the OSG, as counsel for the public official, defends the latter in the PI, and where the same office, as appellate counsel of the People, represents the prosecution when the case is brought on appeal. This anomalous situation could not have been contemplated and allowed by the law. It is a situation which cannot be countenanced by the Court. - another reason why the OSG cant represent an accused in a crim case: the State can speak and act only by law, whatever it says or does is lawful, and that which is unlawful is not the word or deed of the state. As such, a public official who is sued criminally is actually sued in his personal capacity inasmuch as his principal (the State) can never the author of a wrongful act. The same applies to a suit for damages arising from a felony, where the public official is held accountable for his act; the state is not liable. ** Re: Question of Law (copied verbatim. This is all that is mentioned) -both issues raise pure questions of law inasmuch as there are no evidentiary matters to be evaluated by this Court. Moreover, if the only issue is whether or not the conclusions of the trial court are in consonance with law and jurisprudence, then the issue is a pure question of law (Torres v Yu). Thus, the Court resolved to consolidate both Petitions and to treat them as Petitions for certiorari on pure questions of law in accordance with the provisions of the Rules of Court. Disposition Petition is granted.

31. GLORIA V. CA C/O BELLE

32. QUIMBO V. GERVACIO THIRD DIVISION

[G.R. No. 155620. August 9, 2005]

PRUDENCIO QUIMBO, petitioner, vs. ACTING OMBUDSMAN MARGARITO GERVACIO and DIRECTRESS MARY SUSAN S. GUILLERMO OF THE OMBUDSMAN OFFICE, respondents. DECISION CARPIO-MORALES, J.: Culled from the records of the case are the following facts: Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar, was on May 21, 1995 administratively charged for harassment and oppression by Elmo V. Padaon (Padaon), a general foreman who was detailed to the Motor Pool Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then Provincial Governor Jose Roo. During the pendency of the administrative case before the Office of the Deputy Ombudsman, petitioner, on motion of the complainant Padaon, was by November 28, 1997 Order of the Ombudsman[1] placed under preventive suspension without pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond Six (6) Months. Petitioner began serving his preventive suspension on March 18, 1998. After petitioner had presented on direct examination his last two witnesses, the Office of the Ombudsman, by Order of April 27, 1998, [2] lifted petitioners preventive suspension. He was thus thereupon ordered, by Memorandum of June 3, 1998 issued by the OIC Provincial Governor, to resume performing his duties as Provincial Engineer. [3] By Decision of April 5, 2000, [4] the Office of the Deputy Ombudsman found petitioner guilty of oppression and recommended that he be suspended from office for a period of eight (8) months without pay, this case being the second commission by him of the same offense. [5] The Deputy Ombudsmans recommendation was approved by the Ombudsman on April 28, 2000. Petitioners motion for reconsideration of the Ombudsmans decision having been denied, he elevated the case to the Court of Appeals. The appellate court, by Decision of March 1, 2001, [6] modifying the decision of the Ombudsman, found petitioner guilty of simple misconduct only and penalized him with suspension from office for a period of Two (2) Months without pay. Following the finality of the appellate courts decision, the Office of the Ombudsman, by Order dated June 24, 2002,[7] directed the Provincial Governor to implement its decision, as modified by the appellate court. Petitioner filed, however, before the Office of the Ombudsman a Motion for Modification/Reconsideration [8] of its June 24, 2002 Order, calling attention to the fact that he

had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified to take into account the period of [his] PREVENTIVE SUSPENSION of TWO (2) MONTHS and SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final penalty imposed.[9] In a similar move, Provincial Governor Milagrosa Tan sent a letter[10] also dated July 23, 2002 to the Ombudsman seeking clarification on the merits of petitioners contention that he should no longer be required to serve the penalty of Two (2) Months suspension without pay, he having priorly served preventive suspension for more than Two (2) Months. By letter dated August 21, 2002 [11] addressed to the Provincial Governor, the Office of the Ombudsman clarified that preventive suspension is not a penalty but a preliminary step in an investigation; [and that] [i]f after such investigation, the charge is established and the person investigated upon is found guilty . . . warranting the imposition of penalty, then he shall accordingly be penalized. The order for the implementation of its decision, as modified by the appellate court, was thus reiterated in the letter. Unperturbed, petitioner, via certiorari, assailed before the Court of Appeals the Office of the Ombudsmans denial of his plea to be considered having served the modified penalty. By Resolution dated October 2, 2002, [12] the Court of Appeals dismissed petitioners petition for certiorari, it affirming the Ombudsmans ruling that preventive suspension pending investigation is not a penalty. Hence, the present petition for review on certiorari raising as sole issue whether the appellate court committed reversible error when it dismissed his petition. Petitioner contends in the affirmative, he arguing that the dismissal of his petition is in violation of the doctrine enunciated in Gloria v. Court of Appeals[13] and the rule on equity that a person should not be punished twice nor be made to suffer the suspension penalty after [he] had [served] the same (although in a preventive suspension).[14] The petition fails. Jurisprudential law[15] establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him.[16] If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.[17] That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. SEC. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. (Emphasis supplied).

Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides: SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. (Emphasis supplied). Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. Petitioners reliance on Gloria fails. In said case, this Court recognized two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension, to wit: (1) preventive suspension pending investigation (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law).[18] The foregoing classification has significant implications in determining the entitlement of the employee to compensation during the period of suspension, and to credit the preventive suspension to the final penalty of suspension. Thus, in Gloria, this Court held: Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. [19] (Emphasis and underscoring supplied). In fine, as petitioners preventive suspension was carried out pending his investigation, not while his appeal from his conviction was pending, the same cannot be credited to form part of the final penalty of suspension. En passant, neither may the concept of crediting, in criminal law, preventive imprisonment in the service of a convicts term of imprisonment [20] be applied to preventive suspension during investigation in administrative law in the service of a respondents final penalty of suspension. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit. Finally, as shown above, since the law explicitly prescribes the rules on crediting of preventive suspension to the final penalty of suspension, peti tioners invocation of equity may not lie.

WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

QUIMBO vs GERVACIO Case Digest

PRUDENCIO QUIMBO v. ACTING OMBUDSMAN MARGARITO GERVACIO et al. 466 SCRA 277 (2005), THIRD DIVISION (Carpio Morales, J.) Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation, not a penalty or punishment. FACTS: Petitioner Prudencio C. Quimbo, Provincial Engineer of Samar, was administratively charged for harassment and oppression by Elmo V. Padaon (Padaon), a general foreman. During the pendency of the case, he was placed under preventive suspension without pay. The Office of the Deputy Ombudsman found Quimbo guilty of oppression and recommended that he be suspended from office for a period of eight (8) months without pay. This was approved by the Ombudsman. The Court of Appeals (CA) found Quimbo guilty of simple misconduct only and penalized him with suspension from office for a period of two (2) months without pay. Quimbo filed a Motion for Modification/Reconsideration calling attention to the fact that he had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified to ta ke into account the period of his PREVENTIVE SUSPENSION of 2 MONTHS and 17 DAYS WITHOUT PAY as part of the final penalty imposed. The Ombudsman clarified that preventive suspension is not a penalty but a preliminary step in an investigation; and that if after such investigation, the charge is established and the person investigated upon is found guilty warranting the imposition of penalty, then he shall accordingly be penalized. Such was affirmed by the CA. ISSUE: Whether or not the preventive suspension pending the investigation is a penalty HELD: Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. As stated in Sec. 24, preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides that the period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty.

33. GONZALES V. CHAVEZ Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 97351 February 4, 1992

RAMON A. GONZALES, petitioner, vs. HON. FRANCISCO I. CHAVEZ, in his capacity as Solicitor General, PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and COMMISSION ON AUDIT, respondents.

ROMERO, J.:

In the instant petition for mandamus and prohibition with prayer for the issuance of a temporary restraining order, petitioner submits for the Court's adjudication the twin issues of whether or not the Solicitor General neglected his public duty by withdrawing as counsel for the Republic of the Philippines and the Presidential Commission on Good Government (PCGG) in cases he had filed in court and whether or not the PCGG acted without or in excess of jurisdiction in hiring private lawyers as a result of such withdrawal of appearance.

Petitioner Ramon A. Gonzales, as a citizen taxpayer, filed the petition as a class suit under Section 12, Rule 3 of the Rules of Court on the ground that the subject matters involved are of common and general interest to all Filipino citizens and taxpayers as they pertain to the enforcement of a public duty and the prevention of unlawful expenditure of public funds.

According to the petitioner, the Solicitor General is the counsel for the Republic and the PCGG in thirtythree (33) cases before this Court, one hundred nine (109) cases in the Sandiganbayan, one (1) case in the National Labor Relations Commission and another case in the Municipal Trial Court or a total of one hundred forty-four (144) cases. 1 In December 1990, the Solicitor General withdrew as counsel in said cases through a pleading entitled "Withdrawal of Appearance with Reservation." 2 The pleading states:

The SOLICITOR GENERAL, to this Honorable Court, hereby respectfully withdraws as counsel for plaintiff Presidential Commission on Good Government (PCGG) in the above-captioned case, with the reservation, however, conformably with Presidential Decree No. 478, the provisions of Executive Order No. 292 as well as the decisional law of "Orbos v. Civil Service Commission, et al.," (G.R. No. 92561, September 12, 1990), to submit his comment/observation on incidents/matters pending with this Honorable Court, if called for by circumstances in the interest of the government or if he is so required by the court.

Makati, Metro Manila, December 3, 1990.

(Sgd.) FRANCISCO I. CHAVEZ IBP O.R. No. 289417-2.06.90

The Solicitor General filed a substantially similar pleading in the cases where the Republic is a party.

As a result of such withdrawal of appearance, the PCGG hired forty (40) private lawyers, nineteen (19) of whom are trial lawyers. They would receive a monthly compensation of at least P10,000.00 plus appearance fee of P1,700.00 in actual trial and/or P500.00 if trial is postponed. 3

Petitioner contends that since the Solicitor General's withdrawal of appearance was made without any reason, it implied that it was "within the absolute discretion" of said public official. Section 1 of Presidential Decree No. 478 and Section 35 of the Administrative Code of 1987, however, mandatorily require the Solicitor General to stand in the place of, and act for the Republic and the PCGG in court. Therefore, the Solicitor General has "no discretion to reject by withdrawing" as counsel for said entities.

Applying the ruling of this Court with respect to a fiscal in Sta. Rosa Mining Co. v. Zabala, 4 the petitioner further states that: "Similarly, it is the duty of the Solicitor General to appear for the Republic and the PCGG, hence regardless of his personal convictions or opinions, he must proceed to discharge his duty (not withdraw, which is equivalent to refusal to prosecute), and let the court decide the merits of the case." 5

Moreover, petitioner avers that the Solicitor General cannot withdraw his appearance "with reservation" nor can he file his "comment/observation on the incident/matters" after such withdrawal because by ceasing to appear as counsel, he loses his standing in court. Unless a case involves the constitutionality of a treaty, law, ordinance or executive order for which Rule 3 Section 23 of the Rules of Court 6 mandates his appearance, the Solicitor General is not authorized to appear therein after his withdrawal as counsel inasmuch as he himself is not a party-litigant.

Furthermore, under Section 26, of Rule 138, 7 the Solicitor General may not unilaterally withdraw his appearance without the consent of the Republic or the PCGG unless the court authorizes his withdrawal. Since there was no such court authority, the Solicitor General's withdrawal of appearance in said several cases is null and void, as it constitutes an act against a mandatory law and hence, it may be attacked collaterally. Neither may the Solicitor General withdraw on the authority of Orbos v. Civil Service Commission 8 wherein this Court held:

In the discharge of this task the Solicitor General must see to it that the best interest of the government is upheld within the limits set by law. . .

xxx

xxx

xxx

There are cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to forward the papers of the case to him for appropriate action. . .

The Court finds and so holds that this practice should be stopped. To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any litigation, proceeding, investigation or matter requiring the services of a lawyer. The exception is when such officials or agents are being charged criminally or are being civilly sued for damages arising from a felony. His services cannot be lightly rejected, much less ignored by the officer or officials concerned.

Indeed, the assistance of the Solicitor General should be welcomed by the parties. He should be given full support and cooperation by any agency or official involved in litigation. He should be enabled to faithfully discharge his duties and responsibilities as the government advocate. And he should do no less for his clients. His burden of assisting in the fair and just administration of justice is clear.

This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter of fact, the Court appreciates the participation of the Solicitor General in many proceedings and his continued fealty to his assigned task. He should not therefore desist from appearing before this Court even in those cases he finds his opinion inconsistent with the government or any of its agents he is expected to represent. The Court must be advised of his position just as well. (Emphasis supplied)

The petitioner adds the following observations: 9

Therefore, this case militates more against the Solicitor General than in his favor. For if the government and its officials cannot reject the services of the Solicitor General, neither may the latter select the case he would represent by withdrawing in some and retaining others. For unlike private lawyers who are bound to their clients by contract and, therefore, can reject cases offered to them, the Solicitor General and PCGG are wedded to each other by statute for better and for worse. And only a divorce, through the abolition of PCGG or resignation of the Solicitor General, can untie the marital knot. Otherwise, the relationship should continue sans PCGG demurring, and the Solicitor General withdrawing. Absent such resignation or abolition, the Solicitor General has to prosecute or defend the said cases to the best of his ability.

Hence, petitioner contends, the PCGG acted without or in excess of jurisdiction in hiring private lawyers as substitutes for the Solicitor General. Nowhere in Executive Order Nos. 1, 2 and 14 does it appear that the PCGG is authorized to hire said lawyers. Since the Solicitor General is named by law as the lawyer for all government agencies, the hiring of private lawyers by such agencies is impliedly excluded. Thus, by employing private lawyers, the PCGG is creating a public office and naming a public officer. However, in the absence of a law providing for the creation of the office of PCGG counsel, said hired lawyers are usurpers or intruders whose acts may be challenged in a collateral proceeding such as an action for prohibition.

Similarly, petitioner asserts, prohibition will lie against the Commission on Audit considering that any payment for the services of the PCGG-hired lawyers would result in an unlawful expenditure of public funds. Stressing the need to preserve the status quo until the determination of his rights as a citizen and taxpayer, petitioner prays for the issuance of temporary restraining order.

Acting on the petition, however, the Court required the respondent to file their respective comments on the petition without granting the prayer for a temporary restraining order. 10

In its comment, the Commission on Audit (COA) alleges that it has not allowed the disbursement of funds to pay for the services of PCGG-hired private lawyers. It points out the fact that under COA Circular No. 89-299 dated March 21, 1989, the COA has withdrawn the pre-audit of transactions entered into by national government agencies pursuant to the constitutional provision that the COA has the exclusive authority to "define the scope of its audit and examination, to establish the techniques and methods required therefor." 11 Neither has the COA allowed in post-audit the disbursements of funds in payment of the services of the hired private lawyers. Moreover, under COA Circular No. 86-255 dated April 2, 1986, the hiring of private lawyers by government agencies and instrumentalities is prohibited unless there is prior written conformity of the Solicitor General or the Government Corporate Counsel, as the case may be, as well as the written concurrence of COA.

For its part, the PCGG, through Commissioner Maximo A. Maceren and lawyer Eliseo B. Alampay, asserts in its comment that the scope of its authority under Executive Orders Nos. 1, 2 and 14 is broad enough to include the authority to engage the services of private lawyers, if necessary, for the fulfillment of its mandate. While such authority is not expressly stated in said executive orders, "it must be deemed necessarily implied in and subsumed under the expressly enumerated powers of the Commission." 12

The PCGG contends that its power under Section 1 of Executive Order No. 14 to "file and prosecute all cases investigated by it" includes "the grant of discretion to the Commission in determining the manner of filing and prosecuting its cases including the matter of who, in particular, will control and supervise the prosecution of said cases." The phrase "with the assistance of the Office of the Solicitor General and other government agencies" simply means that the Solicitor General is called upon to render assistance to the PCGG and whether or not such discretion is required by the Commission is a matter of discretion on its part. Such provision does not preclude the PCGG from engaging the services of private lawyers in the same way that it is "clearly authorized to hire accountants, appraisers, researchers and other professionals as it performs its functions." Since, upon the dictates of legal and practical necessity, it has hired lawyers in the United States and in Switzerland, "it may similarly hire Filipino lawyers in prosecuting its Philippine cases." 13

The PCGG further asserts that the hiring of private lawyers is "not an ultra vires" act but a "means by which (it) can effectively exercise its powers." It emphasizes the fact that it hired private lawyers "only after the Officer of the Solicitor General had unilaterally withdrawn its appearance" for the PCGG in the various pending PCGG-instituted cases. Its own Litigation Division, which was constituted after the Solicitor General's withdrawal, is "sorely undermanned" but it has to contend with "affluent and influential individuals and entities" who can "afford to hire skilled lawyers and organize vast litigation networks." The PCGG tried to seek the assistance of the Department of Justice and the Office of the Government Corporate Counsel but only the former sent two additional prosecutors to handle its cases. 14

The PCGG clarifies that its powers are circumscribed not only by the executive orders aforementioned but also by the inherent police power of the State. By hiring private lawyers, it was merely trying to assist the President of the Philippines in protecting the interest of the State. As such, it was acting as an alter ego of the President and therefore, it was the Executive which determined the necessity of engaging the services of private prosecutors. Contending that "overwhelming necessity" impelled it to hire private lawyers, the PCGG avers that inasmuch as the Central Bank of the Philippines or the Philippine National Bank may engage the services of private lawyers, with more reason may it be allowed to hire private prosecutors after it was abandoned by the Solicitor General in the prosecution of the ill-gotten wealth cases. Consequently, "the Solicitor General's withdrawal of assistance is tantamount to his tacit approval of the PCGG's hiring of private prosecutors in replacement of the solicitors handling the said civil cases." 15

The PCGG concludes that the reasonableness of the compensation for its hired lawyers can hardly be questioned considering the expertise of said lawyers and the complexity of the cases they would be handling for the PCGG. Thus, the prayer for a preliminary injunction must be denied otherwise "the harm that would be done would be far greater than the perceived mischief petitioner seeks to prevent." 16

Solicitor General Francisco I. Chavez inhibits himself from appearing in this case "considering that as far as the Office of the Solicitor General (OSG for brevity) is concerned, the subject is a closed matter among the OSG, the PCGG and the Courts." 17 In the comment filed by Assistant Solicitor General Edgardo L. Kilayko and Solicitor Iderlina P. Pagunuran, the OSG sets out at length the history of the PCGG from its creation until the filing in the Sandiganbayan of thirty-nine (39) " prima facie cases" for ill-gotten wealth against former President Marcos and his cronies. As suits and countersuits stemmed from the original thirty-nine (39) civil cases, "the OSG had been put to a tremendous task and thus invariably in

urgent need of being consulted or informed by the PCGG of the facts and circumstances material to the prosecution and progress not only of the original 39 civil cases, but also of all kinds of "incidents."

Nonetheless, the OSG lawyers faced the challenge and the odds if only to live up to their task as "the best lawyers there are in the country." The OSG further explains: 18

On many a time, however a time, however, the lack of the above-mentioned consultation or information resulted in situations that rendered the OSG unavoidably incapable of performing its functions and duties as Lawyer of the Government, not only as mandated upon it by law and as spelled out in Orbos v. CSC, G.R. No. 92561, September 12, 1990, but also in consonance with its office motto: "Integrity In Advocacy."

Once the OSG argued before the Sandiganbayan that an asset was under sequestration, only to be informed by the adverse party waving a document before the Sandiganbayan Justices that the sequestration had earlier been lifted, with a PCGG resolution, the document, to boot (Razon case). Then, again, OSG argued, even before this Honorable Court, that an ill-gotten asset had "mysteriously" disappeared, only to be informed by the Honorable Court, that a PCGG Commissioner had earlier by resolution authorized the disposition of the asset (COCOFED case). All the instances need not be enumerated here, as they are not meat and substance, even as OSG is rendered thereby a laughing stock in its professionalism.

As to matters that are of great pith and moment, suffice it to say that the recent Benedicto "compromise" agreement, not to mention the SMC-UCPB Compromise settlement, is sub judice or under advisement not only of the Sandiganbayan but also of this Honorable Court in separate "incidents," and suffice it to state that the relationship, obtaining between the Government offices/agencies and the Office of the Solicitor General as counsel, is not at all like one that simply would obtain between private client and private lawyer in private practice, although constant consultation and advice are sine qua non in both types of relationship. The relationship is rather one, created as it is by law, where imposed upon OSG is the responsibility to present to the courts the position that will uphold the best interests of the People, the Government and the State, albeit the same may run counter to its client's position or route of action. At any rate, the PCGG through nationwide TV broadcast and print media, publicly announced that PCGG had disposed with or otherwise did not need the legal services of the Lawyer of the Government, and thus OSG descended, not the unmerited remark of having "abandoned" the ill-gotten wealth cases, but the time-honored principle of impossibilium nulla obligatio est, i.e., there is no obligation to do impossible things (Lim Co Chui v. Paredes, 47 Phil. 463), without in

any way casting any aspersion on the moral integrity of any Commissioner or PCGG official, as made clear by the Solicitor General to the President in a meeting with PCGG.

Hence, in the light of all the foregoing circumstances, at rock-bottom precisely so as not to prejudice "the interest of the Government" (Orbos), the Solicitor General withdrew as counsel for PCGG in all said cases by filing a notice of "Withdrawal of Appearance with Reservation."

In arguing that the instant petition should be dismissed, the OSG contends that this case has become moot and academic as this very Court had resolved to allow the withdrawal of appearance of the Solicitor General in all the cases pending before it "with reservation, conformably with PD No. 478, Executive Order No. 292, as well as the doctrine laid down in 'Orbos v. Civil Service Commission, et al.,' G.R. No. 92561, September 12, 1990, . . ." 19 For its part, the Sandiganbayan had also resolved that "the appearance of the Solicitor General is deemed withdrawn to be substituted by the PCGG's legal panel." 20

The OSG maintains further that the instant petition does not present a case and controversy as the petitioner himself does not even have a "court standing" and a "litigable interest." All the petitioner seeks is an "advisory opinion." The OSG asserts that the "incident" (referring to the Solicitor General's withdrawal of appearance) should be distinguished from that in JPC Enterprise, Inc. v. Court of Appeals, et al., 21 wherein the Assets Privatization Trust (APT) decided to appear for itself because the law names the Minister of Justice only as its ex oficio legal adviser while by itself it can file suits and institute proceedings and engage external expertise in the fulfillment of its tasks. However, since the APT has no personality of its own, it should have appeared through the Solicitor General. The OSG argues that said "adversarial incident" is not present in this case.

In his reply to the comments of the PCGG and the OSG, the petitioner insists that although as between the Solicitor General and the PCGG, this case may have been rendered moot and academic, as between him on the one hand and the Solicitor General and the PCGG on the other hand, a "real controversy" still exists and the issues raised herein have not ceased to exist either. Moreover, a judgment of prohibition and mandamus would have a "practical legal effect and can be enforced." 22

Citing Miguel v. Zulueta, 23 and Taada v. Tuvera, 24 petitioner asserts that he has a standing in court because where a question of public right is involved and the object of the mandamus is the enforcement of a public duty, the relator need not show any legal or special interest in the result of the proceeding. It

is sufficient that, as a citizen, he is interested in having the laws executed and the duty in question enforced.

The petitioner rebuts the PCGG's contention that its power to hire private lawyers may be implied from its expressly enumerated powers. He asserts that since P.D. No. 478 mandates that "the Solicitor General as law office of the government with the duty to appear for the PCGG," no implication from the express powers of (the) PCGG can stand against the language of P.D. No. 478. On the other hand, the law regarding the PCGG and that regarding the Solicitor General should be harmonized. 25

The Court considers these pleadings sufficient bases for resolving this petition and, on account of the importance and imperativeness of the issues raised herein, the filing of memoranda by the parties is dispensed with.

We shall, first of all, confront a preliminary issue interposed by the OSG whether or not this case has been rendered moot and academic by this Court's resolution granting the Solicitor General's motion to withdraw appearance as counsel in the several cases pending herein. It should be clarified that the resolution had to be issued with the national interest in mind. Time was of the essence and any hedging on the part of the PCGG and/or its counsel could, not merely set back but prejudice, the government's all-out efforts to recover ill-gotten wealth.

Notwithstanding the ostensible mootness of the issues raised in a case, this Court has never shirked from its symbolic function of educating bench and bar by formulating guiding and controlling principles, precepts, doctrines and rules. 26 More so, if the case is of such magnitude that certain legal ambiguities must be unravelled for the protection of the national interest. 27

To allow the transcendental issue of whether the OSG may withdraw its appearance in a cluster of cases of national import to pass into legal limbo simply because it has been "mooted" would be a clear case of misguided judicial self-restraint. This Court has assiduously taken every opportunity to lay down brick by brick the doctrinal infrastructure of our legal system. Certainly, this is no time for a display of judicial timorousness of the kind which the Solicitor General is untimely exhibiting now.

Accordingly, we confront the issue conscious of their far-reaching implications, not alone on the instant case but on future ones as well, which the OSG will surely be called upon to handle again and again.

The resolution of the first issue laid down at the beginning of this ponencia hinges on whether or not the Solicitor General may be compelled by mandamus to appear for the Republic and the PCGG. This issue is best resolved by a close scrutiny of the nature and extent of the power and authority lodged by law on the Solicitor General.

At this juncture, a flashback on the statutory origins of the Office of the Solicitor General is in order. Incorporated in Act No. 136 dated June 11, 1901 28 providing for the organization of courts in the Philippine Islands was Chapter III entitled "The Attorney General." Section 40 states:

There shall be an Attorney-General for the Philippine Islands, to be appointed by the Philippine Commission . . .

The catalog of his duties includes the following:

He shall prosecute or defend therein all causes, civil and criminal, to which the Government of the Philippine Islands, or any officer thereof, in his official capacity, is a party . . . 29

Section 41 further provides:

There shall be an officer learned in the law to assist the Attorney-General in the performance of all his duties, called the Solicitor-General who shall be appointed by the Commission . . . In case of a vacancy in the office of Attorney-General, or of his absence or disability, the Solicitor-General shall have power to exercise the duties of that office. Under the supervision of the Attorney-General, it shall be the especial duty of the Solicitor-General to conduct and argue suits and appeals in the Supreme Court, in which the Philippine Government is interested, and the Attorney-General may, whenever he deems it for the interest of the Philippine Government, either in person conduct and argue any case in any court of the Philippine Islands in which the Philippine Government is interested or may direct the Solicitor General to do so. (Emphasis supplied)

Six months later, a law was passed reorganizing the Office of the Attorney-General and providing for the appointment of the said official and the Solicitor General by the Civil Governor and for an increase in their salaries. Their duties remained basically the same. 30

In the meantime, Act No. 222 was passed on September 5, 1901 providing for the organization of, among others, the Department of Finance and Justice which embraced within its executive control the Bureau of Justice. 31

Under Act No. 2711, otherwise known as the Administrative Code of 1917, the Bureau of Justice is specifically constituted "the law office of the Government of the Philippine Islands and by it shall be performed duties requiring the services of a law officer." 32 Its chief officials are the Attorney-General and his assistant, the Solicitor General. 33

As principal law officer of the Government, the Attorney-General shall have authority to act for and represent the Government of the Philippine Islands, its officers, and agents in any official investigation, proceeding, or matter requiring the services of a lawyer. 34

In 1932, the office of the Attorney-General was phased out and his functions were assumed by the Secretary of Justice. 35 Subsequently, the Bureau of Justice came to be known as the Office of the Solicitor General, 36 headed by the Solicitor General. 37

Parenthetically, these institutions were patterned after the Office of Attorney-General, created by the First U.S. Congress in the Judiciary Act of 1789 which called for a "meet person, learned in the law, to act as Attorney-General for the U.S." 38 When the Department of Justice was established in 1870, the position of Solicitor-General was created as an assistant to the Attorney-General. 39 Over a century later, their respective positions and functions remain the same. The Attorney-General of the United States, appointed by the President with the advice and consent of the Senate, is now the head of the Department of Justice. 40 In the same manner, a Solicitor General, learned in the law, is appointed to assist the Attorney-General in the performance of his duties. 41

In contrast, the Solicitor-General of the Philippines, emerging from the shadow of the Attorney-General and later, of the Secretary of Justice, has come to his own. On July 20, 1948, Republic Act. No. 335, amending Section 1659 of the Administrative Code, bestowed on him the rank of Undersecretary of a Department. Subsequently, a series of amendatory laws designed to enlarge the complement of the

Office of the Solicitor General was enacted 42 until on June 4, 1974, by virtue of Presidential Decree No. 478, its pivotal role in the government became clearly defined and delineated.

During the martial law years, President Ferdinand E. Marcos leaned heavily on his Solicitor General to provide legal underpinnings of his official acts. Reflective of the tremendously enhanced power of the official and the position was Executive Order No. 454 enacted on September 23, 1975, conferring upon the Solicitor General the rank of a member of the Cabinet "with all the rights, honors and privileges pertaining to the position." Said executive order was superseded by Executive Order No. 473 dated August 12, 1976 "making the Solicitor General a member of the Cabinet." These executive orders were capped by Executive Order No. 552 dated August 14, 1979 elevating the OSG into a Ministry with the same powers and functions defined in P.D. Nos. 478 and 1347.

P.D. 478 became, as it were, the Magna Carta of the Office of the Solicitor General. After the change of administration, or on July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 292 instituting the Administrative Code of 1987. Under Book IV, Title III, Chapter 12 thereof, the Office of the Solicitor General is described as an "independent and autonomous office attached to the Department of Justice." Headed by the Solicitor General, "who is the principal law officer and legal defender of the Government," the Office shall have a Legal Staff composed of fifteen (15) Assistant Solicitors General and such number of Solicitors and Trial Attorneys "as may be necessary to operate the Office which shall divided into fifteen (15) divisions. 43 Among its powers and functions are the following which are relevant to the issues:

Sec. 35. Powers and Functions. The office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government, and, as such, shall discharge duties requiring the services of a lawyer. (Emphasis supplied.) It shall have the following specific powers and functions:

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party.

(2) Investigate, initiate court action, or in any manner proceed against any person, corporation or firm for the enforcement of any contract, bond, guarantee, mortgage, pledge or other collateral executed in favor of the Government. Where proceedings are to be conducted outside of the Philippines, the Solicitor General may employ counsel to assist in the discharge of the aforementioned responsibilities.

xxx

xxx

xxx

(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving their respective offices, brought before the courts and exercise supervision and control over such legal Officers with respect to such cases.

(9) Call on any department, bureau, office, agency or instrumentality of the Government for such service, assistance and cooperation as may be necessary in fulfilling its function and responsibilities and for this purpose enlist the services of any government official or employees in the pursuit of his tasks.

Departments, bureaus, agencies, offices, instrumentalities and corporations to whom the Office of the Solicitor General renders legal services are authorized to disburse funds from their sundry operating and other funds for the latter Office. For this purpose, the Solicitor General and his staff are specifically authorized to receive allowances as may be provided by the Government offices, instrumentalities and corporations concerned, in addition to their regular compensation.

(10) Represent, upon the instructions of the President of the Republic of the Philippines in international litigations, negotiations or conferences where the legal position of the Republic must be defended or presented.

(11) Act for the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which, in his opinion , affects the welfare of the people as the ends of justice may require; and

(12)

Perform such other functions as may be provided by law. 44

In thus tracing the origins of the Office of the Solicitor General to gain a clear understanding of the nature of the functions and extent of the powers of the Solicitor General himself, it is evident that a policy decision was made in the early beginnings to consolidate in one official the discharge of legal functions and services in the government. These took the form mostly of representing the Government in various legal proceedings.

The rationale behind this step is not difficult to comprehend. Sound government operations require consistency in legal policies and practices among the instrumentalities of the State. Moreover, an official learned in the law and skilled in advocacy could best plan and coordinate the strategies and moves of the legal battles of the different arms of the government. Surely, the economy factor, too, must have weighed heavily in arriving at such a decision.

It is patent that the intent of the lawmaker was to give the designated official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings. Spread out in the laws creating the office is the discernible intent which may be gathered from the term "shall," which is invariably employed, from Act No. 136 (1901) to the more recent Executive Order No. 292 (1987).

Under the principles of statutory construction, so familiar even to law students, the term "shall" is nothing if not mandatory.

In common or ordinary parlance and in its ordinary significance, the term "shall" is a word of command, and one which has always and which must be given a compulsory meaning, and it is generally imperative or mandatory. It has the invariable significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning or when public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. 45

The presumption is that the word "shall" in a statute is used in an imperative, and not in a directory, sense. If a different interpretations if sought, it must rest upon something in the character of the legislation or in the context which will justify a different meaning. 46

Exactly what is the signification of the mandate for the OSG "to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigations or matter requiring the services of the lawyer?"

To "represent" is standing in place, supplying the place, or performing the duties or exercising the rights, of the party represented; to speak or act with authority on behalf of another; to conduct and control proceedings in court on behalf of another. 47

The decision of this Court as early as 1910 with respect to the duties of Attorney-General well applies to the Solicitor General under the facts of the present case. The Court then declared:

In this jurisdiction, it is the duty of the Attorney General "to perform the duties imposed upon him by law" and "he shall prosecute all causes, civil and criminal, to which the Government of the Philippines Islands, or any officer thereof, in his official capacity, is a party . . ." 48

Being a public officer, the Solicitor General is "invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." 49 Another role of the Solicitor General is an officer of the Court, in which case he is called upon "to share in the task and responsibility of dispensing justice and resolving disputes;" therefore, he may be enjoined in the same manner that a special prosecutor was sought enjoined by this Court from committing any act which may tend to "obstruct, pervert or impede and degrade the administration of justice." 50

In one case where a fiscal manifested before the trial court that he would not prosecute the case in court for insufficiency of evidence after his motion to dismiss had been denied, this Court granted a petition for mandamus to compel him to prosecute the case. We declared:

Notwithstanding his personal convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the Court to enable the court to arrive at its own independent judgment as to the culpability of the accused. The fiscal should not shirk from his responsibility much less leave the prosecution of the case at the hands of a private prosecutor . . . In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government since an offense is an outrage to the sovereignty of the State . . . This is so because "the prosecuting officer is the representative not of an ordinary party to a controversy but of a sovereignty where obligation to govern impartially is as compelling as its obligations to govern at all; and whose interest, therefore, in criminal prosecution is

not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. 51

Undoubtedly, the above arguments apply equally well to the Solicitor General who is sought to be compelled to appear before the different courts to ensure that the case of the Republic of the Philippines against those who illegally amassed wealth at the expense the people maybe made to account for their misdeeds and return said wealth.

Like the Attorney-General of the United States who has absolute discretion in choosing whether to prosecute or not to prosecute or to abandon a prosecution already started, 52 our own Solicitor General may even dismiss, abandon, discontinue or compromise suit either with or without stipulations with other party. 53 Abandonment of a case, however, does not mean that the Solicitor General may just drop it without any legal and valid reason for the discretion given him is not unlimited. 54 Its exercise must be, not only within the parameters set by law but with the best interest of the State as the ultimate goal. Such are reflected in its policies, thus:

The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as member of the bar, the Attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. . . . 55

The first executive order ever issued by President Aquino on February 28, 1986, created the PCGG. It announced the government's policy of recovering all ill-gotten wealth amassed by former President Marcos, his immediate family, relatives and close associates. It charged the PCGG with the "task of assisting the President" in regard to the recovery of all ill-gotten wealth, investigation of "such cases of graft and corruption as the President may assign" to it, and the adoption of safeguards to ensure that corruption may not be again committed with impunity.

This issuance was followed by Executive Order No. 2 dated March 12, 1986 freezing all assets and properties of Marcos, his family and cronies; prohibiting their transfer, conveyance, encumbrance or concealment, and requiring all persons in and outside of the Philippines who are in possession of said properties to make full disclosure of the same to the PCGG.

On April 11, 1986, the PCGG promulgated its Rules and Regulations. A pertinent provision states:

Sec. 10. Findings of the Commission. Based on the evidence adduced, the Commission shall determine whether there is reasonable ground to believe that the asset, property or business enterprise in question constitute ill-gotten wealth as described in Executive Orders Nos. 1 and 2. In the event of an affirmative finding, the Commission shall certify the case to the Solicitor General for appropriate action in accordance with law. Business, properties, funds, and other assets found to be lawfully acquired shall be immediately released and the writ of sequestration, hold or freeze orders lifted accordingly. (Emphasis supplied)

Thereafter, or on May 7, 1986, Executive Order No. 14 defining the jurisdiction over cases involving such ill-gotten wealth was issued, it contains the following provisions:

Sec. 1. Any provision of law to the contrary notwithstanding, the Presidential Commission on Good Government, with the assistance of the Solicitor General and other government agencies, is hereby empowered to file and prosecute all cases investigated by it under Executive Order No. 1, dated February 28, 1986, and Executive Order No. 2, dated March 12, 1986, as may be warranted by its finding.

Sec. 2. The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof.

Sec. 3. Civil suits for restitution, reparation of damages, or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No. 2 dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by a preponderance of evidence. (Emphasis supplied).

All these legal provisions ineluctably lead to no other conclusion but that under the law of its creation and the complementary Rules, the law office of the PCGG, as it is for the rest of the Government, is the Office of the Solicitor General. Although the PCGG is "empowered to file and prosecute all cases investigated by it" under Executive Orders No. 1 and 2, it does not thereby oust the Office of the

Solicitor General from its lawful mandate to represent the Government and its agencies in any litigation, proceeding, investigation or matter requiring the services of a lawyer. Moreover, such express grant of power to PCGG does not imply that it may abdicate such power and turn over the prosecution of the cases to private lawyers whom it may decide to employ. In those instances where proceedings are to be conducted outside of the Philippines, the Solicitor General, continuing to discharge his duties, may employ counsel to assist him, 56 particularly because he may not be licensed to appear before the courts in a foreign jurisdiction.

Under its own Rules and Regulations, specifically the provision aforequoted, the PCGG certifies to the Solicitor General the cases for which it had found reasonable ground to believe that certain assets and properties are ill-gotten under Executive Order Nos. 1 and 2. The Solicitor General shall then proceed "in accordance with law."

Upon receipt of a case certified to him, the Solicitor General exercises his discretion in the management of the case. He may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the case at all. He may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand.

After filing a case, he may even move for its dismissal in the event that, along the way, he realizes that prosecuting the case would not serve the government's purposes. In other words, because he was appointed to the position on account of his qualification as a man "learned in the law," the Solicitor General is obligated to perform his functions and to perform them well. He may not, however, abdicate his function through an arbitrary exercise of his discretion. We find that a withdrawal of appearance on flimsy or petty grounds is tantamount to withdrawing on no grounds at all and to a dereliction of duty.

The Office of the Solicitor General repeatedly invoked the ruling in Orbos v. Civil Service Commission, 57 which hardly constitutes authority to uphold its position with respect to the withdrawal of the Solicitor General in the instant case. On the contrary, in said case, this Court struck down private respondent's motion to disqualify the OSG from appearing for petitioner Department of Transportation and Communications Secretary Orbos. At the risk of being repetitious, the parties were reminded that under Section 1 of Presidential Decree No. 478

The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of a lawyer. (Emphasis supplied)

This Court clarified that even when "confronted with a situation where one government office takes an adverse position against another government agency, as in this case, the Solicitor General should not refrain from performing his duty as the lawyer of the government. It is incumbent upon him to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client's position. In such an instance, the government office adversely affected by the position taken by the Solicitor General, if it still believes in the merit of its case may appear in its own behalf through its legal personnel or representative."

The Court further pointed out that it is not entirely impossible that the Office of the Solicitor General may take a position adverse to his clients like the Civil Service Commission and the National Labor Relations Commission, among others, and even the People of the Philippines. In such instances, however, it is not proper for the Solicitor General to simply decline to handle the case or arbitrarily withdraw therefrom. The Court enjoins him to "nevertheless manifest his opinion and recommendations to the Court which is an invaluable aid in the disposition of the case." 58

However, in those cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to forward the papers of the case to him for appropriate action, the Court categorically held that ". . . this practice should be estopped." 59 By the same token, the Solicitor General should not decline to appear in court to represent a government agency without just and valid reason, especially the PCGG which is under the Office of the President, he being a part of the Executive Department.

In the case at bar, the reason advanced by the Solicitor General for his motion to withdraw his appearance as lawyer for the PCGG is that he has been, more than once embarrassed in court and thereby made "a laughing stock in its (his) professionalism." Examples are when the OSG lawyers betrayed ignorance in open court of certain moves taken by the PCGG, such as the lifting of a sequestration of an asset or when it was under the impression that an asset had mysteriously disappeared only to be informed that "a PCGG Commissioner had earlier by resolution authorized the disposition of said asset."

The last straw, as it were, was the public announcement through media made by the PCGG that it had "dispensed with or otherwise did not need the legal services of the lawyer of the government." 60 It is evident that the withdrawal of the Solicitor General was precipitated by institutional pique, the lawyers concerned having allowed their collective pride to prevail over their sense of duty in protecting and upholding the public interest.

One wistfully wishes that the OSG could have been as zealous in representing the PCGG as it was in appearing for the head of their office, the Solicitor General, in a civil suit for damages filed against him in a Regional Trial Court arising from allegedly defamatory remarks uttered by him.

Such enthusiasm, according to this Court, was misplaced. For Section 1 of Presidential Decree No. 478 which authorizes the OSG to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, admits of an exception, and that it is, it stops short of representing "a public official at any stage of a criminal case or in a civil suit for damages arising from a felony." 61

In instances such as the above, the OSG can, with reason, withdraw its representation even if it has already entered its appearance. But the Solicitor General, as the officially-mandated lawyer of the government, is not empowered to take a similar step on the basis of a petty reason like embarrassment, as that to which the individual lawyers assigned to appear for their office were subjected. Had they not been too preoccupied with their personal feelings, they could have checked themselves in time. For a sense of professional responsibility and proper decorum would dictate that they distinguish between the institution which, from the very beginning, had been constituted as the law office of the Government and the individuals through whom its powers and duties are exercised. No emotions, of whatever kind and degree, should be allowed to becloud their high sense of duty and commitment to country and people.

The OSG itself admitted refraining from citing other incidents as additional bases for the Solicitor General's withdrawal "as they are not of meat and substance" but apparently, their overwhelming sense of shame overcame them as the OSG was "rendered thereby a laughing stock in its professionalism." 62

Now a word on the incidents that allegedly caused humiliation to the OSG lawyers, thus provoking the Solicitor General into withdrawing his appearance as counsel for the PCGG. No litigation can be assured of success if counsel does not enjoy the confidence of his client. This is manifested by, among other things, holding regular, constant and untrammeled consultation with each other. Who can say but that if the communication lines had been kept open between the OSG and PCGG, no surprises would have been sprung on the former by the latter in open court?

Petitioner's claim that the Solicitor General could not withdraw his appearance as lawyer of PCGG inasmuch as he had neither the consent of his client nor the authority from the court, applying the pertinent provision of the Rules of Court, is not well-taken. Here is no ordinary lawyer-client relationship. Let it be remembered that the client is no less than the Republic of the Philippines in whom the plenum of sovereignty resides. Whether regarded as an abstract entity or an ideal person, it is to state the obvious that it can only act through the instrumentality of the government which, according to the Administrative Code of 1987, refers to the "corporate governmental entity through which the functions of government are exercised throughout the Philippines . . ." 63 And the OSG is, by law, constituted the law office of the Government whose specific powers and functions include that of representing the Republic and/or the people before any court in any action which affects the welfare of the people as the ends of justice may require.

Indeed, in the final analysis, it is the Filipino people as a collectivity that constitutes the Republic of the Philippines. Thus, the distinguished client of the OSG is the people themselves of which the individual lawyers in said office are a part.

In order to cushion the impact of his untimely withdrawal of appearance which might adversely affect the case, the Solicitor General has offered "to submit his comment/observation on incidents/matters pending with this Honorable Court, if called for by circumstances in the interest of the government or if he is so required by the court." However, as correctly pointed out by the petitioner, while the Solicitor General may be free to express his views and comments before the Court in connection with a case he is handling, he may not do so anymore after he has formally expressed his refusal to appear therein. For by then, he has lost his standing in court. Unless his views are sought by the court, the Solicitor General may not voluntarily appear in behalf of his client after his withdrawal from the case; otherwise, such reappearance would constitute a blatant disregard for court rules and procedure, and that, on the part of one who is presumed to be "learned in the law."

In the face of such express refusal on the part of the Solicitor General to continue his appearance as counsel of the PCGG in the cases to recover the ill-gotten wealth of the Filipino people from the Marcoses and their cronies, the PCGG has had to employ the service of a group of private attorneys lest the national interest be prejudiced. Were this Court to allow such action to remain unchallenged, this could well signal the laying down of the novel and unprecedented doctrine that the representation by the Solicitor General of the Government enunciated by law is, after all, not mandatory but merely directory. Worse, that this option may be exercised on less than meritorious grounds; not on substance but on whimsy, depending on the all too human frailties of the lawyers in the OSG assigned to a particular case. Under such circumstances, it were better to repeal the law than leave the various government agencies, all dependent on the OSG for legal representation, in a condition of suspenseful uncertainty. With every looming legal battle, they will be speculating whether they can rely on the

Solicitor General to defend the Government's interest or whether they shall have to depend on their own "in-house" resources for legal assistance.

The Court is firmly convinced that, considering the spirit and the letter of the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to "represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer."

Sound management policies require that the government's approach to legal problems and policies formulated on legal issues be harmonized and coordinated by a specific agency. The government owes it to its officials and their respective offices, the political units at different levels, the public and the various sectors, local and international, that have dealings with it, to assure them of a degree of certitude and predictability in matters of legal import.

From the historical and statutory perspectives detailed earlier in this ponencia, it is beyond cavil that it is the Solicitor General who has been conferred the singular honor and privilege of being the "principal law officer and legal defender of the Government." One would be hard put to name a single legal group or law firm that can match the expertise, experience, resources, staff and prestige of the OSG which were painstakingly built up for almost a century.

Moreover, endowed with a broad perspective that spans the legal interests of virtually the entire government officialdom, the OSG may be expected to transcend the parochial concerns of a particular client agency and instead, promote and protect the public weal. Given such objectivity, it can discern, metaphorically speaking, the panoply that is the forest and not just the individual trees. Not merely will it strive for a legal victory circumscribed by the narrow interests of the client office or official, but as well, the vast concerns of the sovereign which it is committed to serve.

In light of the foregoing, the Solicitor General's withdrawal of his appearance on behalf of the PCGG was beyond the scope of his authority in the management of a case. As a public official, it is his sworn duty to provide legal services to the Government, particularly to represent it in litigations. And such duty may be enjoined upon him by the writ of mandamus. And such duty may be enjoined upon him by the writ of mandamus. Such order, however, should not be construed to mean that his discretion in the handling of his cases may be interfered with. The Court is not compelling him to act in a particular way. 64 Rather, the Court is directing him to prevent a failure of justice 65 resulting from his abandonment in midstream of the cause of the PCGG and the Republic and ultimately, of the Filipino people.

In view of the foregoing, there need be no proof adduced that the petitioner has a personal interest in the case, as his petition is anchored on the right of the people, through the PCGG and the Republic, to be represented in court by the public officer duly authorized by law. The requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and hence, part of the public which possesses the right. 66

The writ of prohibition, however, may not be similarly treated and granted in this petition. The said writ, being intended to prevent the doing of some act that is about to be done, it may not provide a remedy for acts which are already fait accompli. 67 Having been placed in a situation where it was constrained to hire private lawyers if the Republic's campaign to legally recover the wealth amassed by the Marcoses, their friends and relatives was to prosper, the PCGG's action is justified. However, it was not entirely blameless. Its failure to coordinate closely with the Solicitor General has spawned the incidents which culminated in the withdrawal of the latter from appearing as counsel in its cases.

WHEREFORE, the petition for a writ of mandamus is hereby GRANTED. The Solicitor General is DIRECTED to immediately re-enter his appearance in the cases wherein he had filed a motion to withdraw appearance and the PCGG shall terminate the services of the lawyers it had employed but not before paying them the reasonable fees due them in accordance with rules and regulations of the Commission on Audit.

This decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Nocon, JJ., concur.

Feliciano, J., concurs in the result.

34. ARIAS V. SANDIGANBAYAN

EN BANC G.R. No. 81563 December 19, 1989 AMADO C. ARIAS, petitioner, vs. THE SANDIGANBAYAN, respondent. G.R. No. 82512 December 19, 1989 CRESENCIO D. DATA, petitioner, vs. THE SANDIGANBAYAN, respondent. Paredes Law Office for petitioner.

GUTIERREZ, JR., J.: The facts of this case are stated in the dissenting opinion of Justice Carolina C. GrioAquino which follows this majority opinion. The dissent substantially reiterates the draft report prepared by Justice Grio-Aquino as a working basis for the Court's deliberations when the case was being discussed and for the subsequent votes of concurrence or dissent on the action proposed by the report. There is no dispute over the events which transpired. The division of the Court is on the conclusions to be drawn from those events and the facts insofar as the two petitioners are concerned. The majority is of the view that Messrs. Arias and Data should be acquitted on grounds of reasonable doubt. The Court feels that the quantum of evidence needed to convict petitioners Arias and Data beyond reasonable doubt, as coconspirators in the conspiracy to cause undue injury to the Government through the irregular disbursement and expenditure of public funds, has not been satisfied. In acquitting the petitioners, the Court agrees with the Solicitor-General 1 who, in 80 pages of his consolidated manifestation and motion, recommended that Messrs. Arias and Data be acquitted of the crime charged, with costs de oficio. Earlier, Tanodbayan Special Prosecutor Eleuterio F. Guerrero had also recommended the dropping of Arias from the information before it was filed. There is no question about the need to ferret out and convict public officers whose acts have made the bidding out and construction of public works and highways synonymous with graft or criminal inefficiency in the public eye. However, the remedy is not to indict and jail every person who may have ordered the project, who signed a document

incident to its construction, or who had a hand somewhere in its implementation. The careless use of the conspiracy theory may sweep into jail even innocent persons who may have been made unwitting tools by the criminal minds who engineered the defraudation. Under the Sandiganbayan's decision in this case, a department secretary, bureau chief, commission chairman, agency head, and all chief auditors would be equally culpable for every crime arising from disbursements which they have approved. The department head or chief auditor would be guilty of conspiracy simply because he was the last of a long line of officials and employees who acted upon or affixed their signatures to a transaction. Guilt must be premised on a more knowing, personal, and deliberate participation of each individual who is charged with others as part of a conspiracy. The records show that the six accused persons were convicted in connection with the overpricing of land purchased by the Bureau of Public Works for the Mangahan Floodway Project. The project was intended to ease the perennial floods in Marikina and Pasig, Metro Manila. The accused were prosecuted because 19,004 square meters of "riceland" in Rosario, Pasig which had been assessed at P5.00 a square meter in 1973 were sold as residential land" in 1978 for P80.00 a square meter. The land for the floodway was acquired through negotiated purchase, We agree with the Solicitor-General that the assessor's tax valuation of P5.00 per square meter of land in Rosario, Pasig, Metro Manila is completely unrealistic and arbitrary as the basis for conviction. Herein lies the first error of the trial court. It must be stressed that the petitioners are not charged with conspiracy in the falsification of public documents or preparation of spurious supporting papers. The charge is causing undue injury to the Government and giving a private party unwarranted benefits through manifest partiality, evident bad faith, or inexcusable negligence. The alleged undue injury in a nutshell is the Government purchase of land in Pasig, Rizal for P80.00 a square meter instead of the P5.00 value per square meter appearing in the tax declarations and fixed by the municipal assessor, not by the landowner. The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per square meter value fixed by the assessor in the tax declarations was the correct market value of the Mangahan property and if the Government purchased the land for P80.00 a square meter, it follows that it must have suffered undue injury. The Solicitor General explains why this conclusion is erroneous:

1. No undue injury was caused to the Government a. The P80.00 per square rneter acquisition cost is just fair and reasonable. It bears stress that the Agleham property was acquired through negotiated purchase. It was, therefor, nothing more than an ordinary contract of sale where the purchase price had to be arrived at by agreement between the parties and could never be left to the discretion of one of the contracting parties (Article 1473, New Civil Code). For it is the essence of a contract of sale that there must be a meeting of the minds between the seller and the buyer upon the thing which is the object of the contract and upon the price (Article 1475, New Civil Code). Necessarily, the parties have to negotiate the reasonableness of the price, taking into consideration such other factors as location, potentials, surroundings and capabilities. After taking the foregoing premises into consideration, the parties have, thus, arrived at the amount of P80.00 per square meter as the fair and reasonable price for the Agleham property. It bears stress that the prosecution failed to adduce evidence to prove that the true and fair market value in 1978 of the Agleham property was indeed P5.00 per square meter only as stated by the assessor in the tax declaration (Exhibit W). On the contrary, the prosecution's principal witness Pedro Ocol, the Assistant Municipal Assessor of Pasig, admitted that the purchase price of P80.00 per square meter paid for the Agleham property as stated in the Deed of Sale (Exhibit G) is reasonable (tsn, August 19,1983, p. 20) and fair (Ibid, p. 76); that 'the value of lands within the town of Pasig ranges from P80.00 to P500.00' (Ibid, p. 21); that the Agleham property is "around 300 meters" from Ortigas Avenue, "adjacent to the existing Leongson [Liamson] Subdivision ... and near Eastland Garment Building" (Ibid, pp. 12-13); that said property is surrounded by factories, commercial establishments and residential subdivisions (Ibid, pp. 73-74); that the P5.00 per square meter assessed valuation of the Agleham property appearing on the tax declaration (Exhibit W) was based on actual use only (lbid, pp. 26-27), it being the uniform rate for all ricefields in Pasig irrespective of their locations ( Ibid, pp. 72-74) and did not take into account the existence of many factories and subdivisions in the area (Ibid., pp. 25-27, 72-74), and that the assessed value is different from and always lower than the actual market value (Ibid, pp. 22-23). (At pp. 256-259, Rollo)

A negotiated purchase may usually entail a higher buying price than one arrived at in the course of expropriation proceedings. In Export Processing Zone Authority v. Dulay (149 SCRA 305, 310 [1987]) we struck down the martial law decree that pegged just compensation in eminent domain cases to the assessed value stated by a landowner in his tax declaration or fixed by the municipal assessor, whichever is lower. Other factors must be considered. These factors must be determined by a court of justice and not by municipal employees. In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no participation, was used for a purpose infinitely more weighty than mere expropriation of land. It forms the basis for a criminal conviction. The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978 would be a fair evaluation. The value must be determined in eminent domain proceedings by a competent court. We are certain, however, that it cannot be P5.00 a square meter. Hence, the decision, insofar as it says that the "correct" valuation

is P5.00 per square meter and on that basis convicted that petitioners of causing undue injury, damage, and prejudice to the Government because of gross overpricing, is grounded on shaky foundations. There can be no overpricing for purposes of a criminal conviction where no proof adduced during orderly proceedings has been presented and accepted. The Court's decision, however, is based on a more basic reason. Herein lies the principal error of the respondent court. We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing, his signature as the final approving authority. There appears to be no question from the records that documents used in the negotiated sale were falsified. A key tax declaration had a typewritten number instead of being machine-numbered. The registration stampmark was antedated and the land reclassified as residential instead of ricefield. But were the petitioners guilty of conspiracy in the falsification and the subsequent charge of causing undue in injury and damage to the Government? We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. Was petitioner Arias part of the planning, preparation, and perpetration of the alleged conspiracy to defraud the government?

Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the property started in 1977. The deed of sale was executed on April 20, 1978. Title was transferred to the Republic on June 8, 1978. In other words, the transaction had already been consummated before his arrival. The pre-audit, incident to payment of the purchase, was conducted in the first week of October, 1978. Arias points out that apart from his signature linking him to the signature on the voucher, there is no evidence transaction. On the contrary, the other co-accused testified they did not know him personally and none approached him to follow up the payment. Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest detains of the transaction? Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was already worth P80.00 a square meter at the time, no warning bell of intuition would have sounded an inner alarm. Land along Ortigas Avenue on the way to Pasig is now worth P20,000.00 to P30,000.00 a square meter. The falsification of the tax declaration by changing "riceland" to "residential' was done before Arias was assigned to Pasig besides, there is no such thing as "riceland" in inner Metro Manila. Some lots in outlying or easily flooded areas may still be planted to rice or kangkong but this is only until the place is dedicated to its real purpose which is commercial, industrial, or residential. If the Sandiganbayan is going to send somebody to jail for six years, the decision should be based on firmer foundation. The Sandiganbayan asked why Arias kept the documents from October, 1978 to June 23, 1982. Arias explained that the rules of the Commission on Audit require auditors to keep these d documents and under no circumstance to relinquish custody to other persons. Arias was auditor of the Bureau of Public Works in Pasig up to September 1, 1981. The seven months delay in the formal turnover of custody to the new auditor was explained by prosecution witness Julito Pesayco, who succeeded him as auditor and who took over the custody of records in that office. The main reason for the judgment of conviction, for the finding of undue injury and damage to the Government is the alleged gross overprice for the land purchased for the floodway project. Assuming that P80.00 is indeed exorbitant, petitioner Arias cites his testimony as follows:
Q In conducting the pre-audit, did you determine the reasonableness of the price of the property? A In this case, the price has been stated, the transaction had been consummated and the corresponding Transfer Certificate of little had been issued and transferred to the government of the Philippines. The auditors have no more leeway to return the papers and then question the purchase price. Q Is it not a procedure in your office that before payment is given by the government to private individuals there should be a pre-audit of the papers and the corresponding checks issued to the vendor? A Correct, Your Honor, but it depends on the kind of transaction there is.

Q Yes, but in this particular case, the papers were transferred to the government without paying the price Did you not consider that rather odd or unusual? (TSN, page 17, April 27,1987). A No, Your Honor. Q Why not? A Because in the Deed of Sale as being noted there, there is a condition that no payments will be made unless the corresponding title in the payment of the Republic is committed is made. Q In this case you said that the title is already in the name of the government? A Yes, Your Honor. The only thing we do is to determine whether there is an appropriation set aside to cover the said specification. As of the price it is under the sole authority of the proper officer making the sale. Q My point is this. Did you not consider it unusual for a piece of property to be bought by the government; the sale was consummated; the title was issued in favor of the government without the price being paid first to the seller? A No, Your Honor. In all cases usually, payments made by the government comes later than the transfer. Q That is usual procedure utilized in road right of way transaction? A Yes, Your Honor. (TSN, p. 18, April 27,1987). Q And of course as auditor, 'watch-dog' of the government there is also that function you are also called upon by going over the papers . . . (TSN, page 22, April 27,1987). I ... vouchers called upon to determine whether there is any irregularity as at all in this particular transaction, is it not? A Yes, Ma'am. Q And that was in fact the reason why you scrutinized also, not only the tax declaration but also the certification by Mr. Jose and Mr. Cruz? A As what do you mean of the certification, ma'am? Q Certification of Mr. Jose and Mr. Cruz in relation to PD No. 296, A They are not required documents that an auditor must see. (TSN, page 23, April 27,1987).

and continuing:
A ... The questioning of the purchase price is now beyond the authority of the auditor because it is inasmuch as the amount involved is beyond his counter-signing authority. (TSN, page 35, April 27, 1987). (At pp. 15-16, Petition. Underlinings supplied by petitioner)

The Solicitor General summarizes the participation of petitioner Data as follows:

As regards petitioner Data's alleged participation, the evidence on record shows that as the then District Engineer of the Pasig Engineering District he created a committee, headed by Engr. Priscillo Fernando with Ricardo Asuncion, Alfonso Mendoza, Ladislao Cruz, Pedro Hucom and Carlos Jose, all employees of the district office, as members, specifically to handle the Mangahan Floodway Project, gather and verify documents, conduct surveys, negotiate with the owners for the sale of their lots, process claims and prepare the necessary documents; he did not take any direct and active part in the acquisition of land for the Mangahan floodway; it was the committee which determined the authenticity of the documents presented to them for processing and on the basis thereof prepared the corresponding deed of sale; thereafter, the committee submitted the

deed of sale together with the supporting documents to petitioner Data for signing; on the basis of the supporting certified documents which appeared regular and complete on their face, petitioner Data, as head of the office and the signing authority at that level, merely signed but did not approve the deed of sale (Exhibit G) as the approval thereof was the prerogative of the Secretary of Public Works; he thereafter transmitted the signed deed of sale with its supporting documents to Director Anolin of the Bureau of Public Works who in turn recommended approval thereof by the Secretary of Public Works; the deed of sale was approved by the Asst. Secretary of Public Works after a review and re-examination thereof at that level; after the approval of the deed of sale by the higher authorities the covering voucher for payment thereof was prepared which petitioner Data signed; petitioner Data did not know Gutierrez and had never met her during the processing and payment of her claims (tsn, February 26, 1987, pp. 10-14, 1624, 31-32). (At pp. 267-268, Rollo.)

On the alleged conspiracy, the Solicitor General argues:

It is respectfully submitted that the prosecution likewise has not shown any positive and convincing evidence of conspiracy between the petitioners and their co-accused. There was no direct finding of conspiracy. Respondent Court's inference on the alleged existence of conspiracy merely upon the purported 'pre-assigned roles (of the accused) in the commission of the (alleged) illegal acts in question is not supported by any evidence on record. Nowhere in the seventy- eight (78) page Decision was there any specific allusion to some or even one instance which would link either petitioner Arias or Data to their co-accused in the planning, preparation and/or perpetration, if any, of the purported fraud and falsifications alleged in the information That petitioners Data and Arias happened to be officials of the Pasig District Engineering Office who signed the deed of sale and passed on pre-audit the general voucher covering the subject sale, respectively, does hot raise any presumption or inference, that they were part of the alleged plan to defraud the Government, as indeed there was none. It should be remembered that, as aboveshown, there was no undue injury caused to the Government as the negotiated purchase of the Agleham property was made at the fair and reasonable price of P80.00 per square meter. That there were erasures and superimpositions of the words and figures of the purchase price in the deed of sale from P1,546,240.00 to P1,520,320.00 does not prove conspiracy. It may be noted that there was a reduction in the affected area from the estimated 19,328 square meters to 19,004 square meters as approved by the Land Registration Commission, which resulted in the corresponding reduction in the purchase price from P1,546,240.00 to Pl,520,320.00. The erasures in the deed of sale were simple corrections that even benefited the Government. Moreover, contrary to the respondent Court's suspicion, there was nothing irregular in the use of the unapproved survey plan/technical description in the deed of sale because the approval of the survey plan/ technical description was not a prerequisite to the approval of the deed of sale. What is important is that before any payment is made by the Government under the deed of sale the title of the seller must have already been cancelled and another one issued to the Government incorporating therein the technical description as approved by the Land Registration Commission, as what obtained in the instant case. (At pp. 273-275, Rollo)

We agree with the counsel for the People. There is no adequate evidence to establish the guilt of the petitioners, Amado C. Arias and Cresencio D. Data, beyond reasonable doubt. The inadequate evidence on record is not sufficient to sustain a conviction.

WHEREFORE, the questioned decision of the Sandiganbayan insofar as it convicts and sentences petitioners Amado C. Arias and Cresencio D. Data is hereby SET ASIDE. Petitioners Arias and Data are acquitted on grounds of reasonable doubt. No costs. SO ORDERED.
CASE DIGEST

GR. No. 81563 & GR. No. 82512

December 19, 1989

Amado C. Arias & Cresencio D. Data petitioners vs. The SANDIGANBAYAN, respondents.

Petition to SC

GUTIERREZ, JR., J:

Summary of Facts: Arias (District Engineer) and Data (Chief Auditor), officials of the Province of Rizal were found guilty by the Sandiganbayan (SB) together with their subordinates and a private citizen (seller of land) for having caused injury to & damage to the Republic of the Philippines in connection with scandalous overpricing of land purchased by the Government as right of way for a floodway project, by allowing & approving the illegal disbursement & expenditure of public funds. The decision of SB insofar as Arias & Data are concerned was overturned by the SC based on the reasoning of reliance of good faith on subordinates .

Facts Petitioners Arias Arias (District Engineer) and Data (Chief Auditor), were found guilty by SB for violating sec. 3 (e) of the Anti-Graft Practices Act:

SEC. 3. Corrupt Practices of Public Officers-In addition to acts or omissions of public officers already penalized by existing law. the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxxxxxxxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions

Arias and Data were convicted by SB violating the above provision together with their 3 subordinates & 1 private citizen Gutierrez (seller of land) (6 silang lahat na convicted).

The background of the story dates back in year 1975, when the Bureau of Public Works planned the Mangahan Floodway Project to ease the perennial floods in some parts of Marikina and Pasig, M etro Manila. This floodway project will traverse certain portions of Ortigas, where the land sold by Gutierrez to the Govt (subject matter in this case) was located.

The implementation of this floodway project was entrusted to the Pasig Engineering District headed by Data (District Engineer). In this regard, Data formed a committee headed by Fernando (Supervising Civil Engr) as over-all in-charge (Fernando did not face trial and remains at-large) and 3 other subordinates. The subordinates were Mendoza & Hucom, for acquisition and improvements, and Jose the Instrument man for surveys (Mendoza & Jose are 2 other convicted co-accused). This committee was tasked to inform affected lot owners affected by the floodway project and to receive and process payments.

Among the lot owners affected was a 19, 004 sq.m. riceland (subject matter in this case) owned by Agleham, which was previously owned by parents of Gutierrez (private citizen & convicted co-accused) from whom Agleham acquired his property. Gutierrez was one of those who filed an application for payment, holding with her a Special Power of Attorney allegedly executed by Agleham. In her application, she submitted fake and falsified documents i.e. Tax Declaration Certificate purporting that the land was residential with fair market value of P80/sq m.

These documents were submitted to 2 other convicted co-accused -examined by Arcaya (Admin. Officer) while Cruz (Senior Engineer) initialed the documents & prepared a Deed of Sale. Cruz later transmitted them to District Engineer Data. Data and Gutierrez both later signed the Deed of Sale. These documents were sent to Director Anolin of Bureau of Public Works, who recommended approval of the Deed of Sale and later returned to Datas office. Hence the sale was registered and a TCT was issued in the name of the Govt.

For this sale, a General Voucher was prepared, for the amount of P1.5M plus with certifications of Data and his 3 subordinates (Fernando ,Cruz, and one accountant). This general voucher and other supporting documents were pre-audited and approved for payment by Arias (Chief Auditor), petioner and convicted coaccused . Arias then later issued 16 PNB checks for total sum of P1.5M plus for Gutierrez as payment of property in 1978.

In 1979, an investigation was conducted by the Ministry of National Defense on this alleged gross overpricing of Aglehams property. Several Government employees denied signing the certification and gave sworn statements. One of them is Oco, an Assistant Mun. Assessor who provided the genuine Tax Declaration Certificate, showing among others that the subject property is actually a riceland (but classified as residential) and overpriced at P80/sq.m. (instead of appraised value of P5/sq.m.) -- showing that the officials of the District Engineering Office falsified them . The investigators also found that the Deed of Sale was approved by Arias for payment of P1.5, who didnt question the altered amount (snowflaked and amount superimposed) nor checked the veracity of the fake documents.

The case was on trial for 6 years, and SB found 2 petitioners ARIAS & DATA, their 3 subordinates (CRUZ, JOSE, & ARCAYA) & private citizen GUTIERREZ guilty of violation of Anti-Graft and Corrupt Practices Act.

Among the 6 convicted accused, only the 2 petitioners, Arias (District Engineer) and Data (Chief Auditor) appealed.

ISSUE: WON SB petitioners ARIAS and DATA are guilty as co-conspirators in the conspiracy to cause injury to the Government through the irregular disbursement and expenditure of public funds. NO

RATIO: No. 1. Under the Sandiganbayan's decision, a department secretary, bureau chief, commission chairman, agency head, and all chief auditors would be equally culpable for every crime arising from disbursements which they have approved . The department head or chief auditor would be guilty of conspiracy simply because he was the last of a long line of officials and employees who acted upon or affixed their signatures to a transaction. Guilt must be premised on a more knowing, personal, and deliberate participation of each individual who is charged with others as part of a conspiracy . The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per square meter value fixed by the assessor in the tax declarations was the correct market value of the Mangahan property and if the Government purchased the land for P80.00 a square meter, it follows that it must have suffered undue injury. In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no participation, was used for a purpose infinitely more weighty than mere expropriation of land. It forms the basis for a cr iminal conviction by the SB. The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978 would be a fair evaluation. The value must be determined in eminent domain proceedings by a competent court. We are certain, however, that it cannot be P5.00 a square meter. Hence, the decision, insofar as it says that the "correct" valuation is P5.00 per square meter and on that basis convicted that petitioners of causing undue injury, damage, and prejudice to the Government because of gross overpricing, is grounded on shaky foundations. There can be no overpricing for purposes of a criminal conviction where no proof adduced during orderly proceedings has been presented and accepted. BASIC REASON OF SC: We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing, his signature as the final approving authority. There appears to be no question from the records that documents used in the negotiated sale were falsified. A key tax declaration had a typewritten number instead of being machine-numbered. The registration stampmark was antedated and the land reclassified as residential instead of ricefield. But were the petitioners guilty of conspiracy in the falsification and the subsequent charge of causing undue in injury and damage to the Government? We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction.

2.

3.

ARIAS PARTICIPATION: Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the property started in 1977. The deed of sale was executed on April 20, 1978. Title was transferred to the Republic on June 8, 1978. In other words, the transaction had already been consummated before his arrival. Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest detains of the transaction?

Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was already worth P80.00 a square meter at the time, no warning bell of intuition would have sounded an inner alarm. Land along Ortigas Avenue on the way to Pasig is now worth P20,000.00 to P30,000.00 a square meter. DATAS PARTICIPATION: The committee he formed determined the authenticity of the documents presented to them for processing and on the basis thereof prepared the corresponding deed of sale; thereafter, the committee submitted the deed of sale together with the supporting documents to petitioner Data for signing; on the basis of the supporting certified documents which appeared regular and complete on their face, petitioner Data, as head of the office and the signing authority at that level, merely signed but did not approve the deed of sale as the approval thereof was the prerogative of the Secretary of Public Works for its final approval.

HELD: SB decision SET ASIDE insofar as it convicts and sentences petitioners Arias & Data. They are both acquitted on grounds of reasonable doubt. Inadequacy of evidence is not sufficient to warrant a conviction.

DISSENTING OPINION OF GRINO-AQUINO: Conspiracy of Silence and Inaction - The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance instances.

35. CRUZ V. GANGAN

FILONILA O. CRUZ, vs. Hon. CELSO D. GANGAN,

The Facts On Friday afternoon of January 15, 1999, petitioner went to the Regional Office of the Technological Education and Skills Development Authority (TESDA) in Taguig, Metro Manila for consultation with the regional director.[3] After the meeting, petitioner went back to her official station in Caloocan City, where she was the then Camanava district director of the TESDA, by boarding the Light Railway Transit (LRT) from Sen. Gil Puyat Avenue to Monumento. On board the LRT, her handbag was slashed and its contents stolen by an unidentified person. Among the items taken from her were her wallet and the government-issued cellular phone, which is the subject of the instant case. That same day, she reported the incident to police authorities who immediately conducted an investigation. However, all efforts to locate the thief and to recover the phone proved futile. Three days after, on January 18, 1999, petitioner reported the theft to the regional director of TESDA-NCR. She did so through a Memorandum, in which she requested relief from accountability of the subject property. In a 1st Indorsement dated January 19, 1999, the regional director, in turn, indorsed the request to the resident auditor. Under a 2nd Indorsement dated February 26, 1999, the resident auditor [4] denied the request of petitioner on the ground that the latter lacked the diligence required in the custody of government properties. Thus, petitioner was ordered to pay the purchase value of the cell phone (P3,988) and that of its case (P250), a total of P4,238. The auditors action was sustained by the director of the National Government Audit Office II (NGAO II). The matter was then elevated to the Commission on Audit. On appeal, the COA found no sufficient justification to grant the request for relief from accountability. It explained that while it may be true that the loss of the cellular phone in question was due to robbery (bag slashing), this however, cannot be made as the basis in granting the herein request for relief from accountability since the accountable officer, Dr. Cruz, failed to exercise that degree of diligence required under the circumstances to prevent/avoid the loss. As an accountable officer, she was under obligation to exercise proper degree of care and diligence in safeguarding the property, taking into account what a reasonable and prudent man would have done under the circumstances. Therefore, having been remiss in her obligation in the keeping or use of the subject government issued cellular phone, she has to answer for its loss as required under Section 105 of PD 1445.

Issues

(1) Whether or not the petitioner failed to exercise that degree of diligence required to prevent

the loss of the government-issued cellular phone when she opted to take the light railway transit (LRT) and, (2) Whether she should be held accountable for its loss.

The Courts Ruling The Petition is meritorious.

First Issue: Required Degree of Diligence The crucial question to ask is whether petitioner should be deemed negligent when, on that fateful afternoon, she opted to board the LRT where the cellular phone was stolen. We answer in the negative. Riding the LRT cannot per se be denounced as a negligent act; more so under the circumstances in this case, in which petitioners mode of tr ansit was influenced by time and money considerations. Possession of a cellular phone would not and should not hinder one from boarding an LRT coach as petitioner did. After all, whether she took a bus or a jeepney, the risk of theft would have also been present. While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless hold that a government employee who has not been proven to be culpable or negligent should not be held accountable for the loss of a cellular phone, which was stolen from her while she was riding on the LRT.

Second Issue: Accountability Earlier, we have already ruled that the finding of negligence had no factual or legal basis and was therefore invalid. What now remains to be resolved is whether petitioner observed the proper procedure for notifying the government of the loss. Within thirty days of the loss, petitioner applied for relief from accountability. We hold that such application be deemed as the notification of the loss of the subject cellular phone. She has also done her part in proving that the loss was due to theft or robbery. The resident auditor concerned and the COA itself have accepted that the robbery or theft had actually taken place. Necessarily, in the absence of evidence showing negligence on her part, credit for the loss of the cellular phone is proper under the law. It also stands to reason that P4,238 should now be refunded to her. We agree that, in fighting for her rights, she must have spent more than the value of the lost cellular phone. Hence, we can only applaud her for being true to her calling as an educator and a role model for our young people. Honor, respect and dignity are the values she has pursued. May her tribe increase! WHEREFORE, the Petition is GRANTED. The assailed Decision of the Commission on Audit is REVERSED and SET ASIDE. The request of Petitioner Filonila O. Cruz for relief from accountability for the lost Nokia 909 analog cellular phone is GRANTED, and the amount ofP4,238 paid under Official Receipt No. 6606743 is ordered to be REFUNDED to her upon finality of this Decision. No costs. SO ORDERED.

EN BANC

[G.R. No. 143403. January 22, 2003]

FILONILA O. CRUZ, petitioner, vs. Hon. CELSO D. GANGAN, Dir. MARCELINO HANOPOL, Auditor GLENDA MANLAPAZ, and the COMMISSION ON AUDIT, respondents. DECISION
PANGANIBAN, J.:

While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless rule that a government employee who has not been proven to be culpable or negligent should not be held accountable for the loss of a cellular phone stolen from her while she was riding the Light Railway Transit (LRT). On the other hand, the dogged persistence of petitioner in fighting for her rights, honor, respect and dignity has not been lost on this Court. She has been true to her calling as an educator and a role model for our young people.

The Case For review on certiorari under Rule 64 is Decision No. 2000-104[1] dated March 28, 2000, issued by the Commission on Audit (COA), requiring Dr. Filonila O. Cruz to pay the book value of a lost government-issued Nokia 909 analog cellular phone. The decretal portion of the Decision reads as follows:

Premises considered, and conformably to the adverse recommendations of the Director, NGAO II and the Auditor, TESDA-NCR in the letter and 2ndIndorsement dated July 13, 1999 and February 26, 1999, respectively, it is regretted that the instant request for relief is DENIED for want of merit. This being so, the herein petitioner should be required to pay the book value of the lost government-issued cellular phone.
[2]

The Facts On Friday afternoon of January 15, 1999, petitioner went to the Regional Office of the Technological Education and Skills Development Authority (TESDA) in Taguig, Metro Manila for consultation with the regional director.[3] After the meeting, petitioner

went back to her official station in Caloocan City, where she was the then Camanava district director of the TESDA, by boarding the Light Railway Transit (LRT) from Sen. Gil Puyat Avenue to Monumento. On board the LRT, her handbag was slashed and its contents stolen by an unidentified person. Among the items taken from her were her wallet and the government-issued cellular phone, which is the subject of the instant case. That same day, she reported the incident to police authorities who immediately conducted an investigation. However, all efforts to locate the thief and to recover the phone proved futile. Three days after, on January 18, 1999, petitioner reported the theft to the regional director of TESDA-NCR. She did so through a Memorandum, in which she requested relief from accountability of the subject property. In a 1st Indorsement dated January 19, 1999, the regional director, in turn, indorsed the request to the resident auditor. Under a 2nd Indorsement dated February 26, 1999, the resident auditor [4] denied the request of petitioner on the ground that the latter lacked the diligence required in the custody of government properties. Thus, petitioner was ordered to pay the purchase value of the cell phone (P3,988) and that of its case (P250), a total of P4,238. The auditors action was sustained by the director of the National Government Audit Office II (NGAO II). The matter was then elevated to the Commission on Audit.

Ruling of the Commission on Audit On appeal, the COA found no sufficient justification to grant the request for relief from accountability. It explained as follows:

x x x While it may be true that the loss of the cellular phone in question was due to robbery (bag slashing), this however, cannot be made as the basis in granting the herein request for relief from accountability since the accountable officer, Dr. Cruz, failed to exercise that degree of diligence required under the circumstances to prevent/avoid the loss. When Dr. Cruz opted to take the LRT which undeniably, was almost always packed and overcrowded and considering further the day and time she boarded said train which was at about 2:00 to 2:30 P.M. of Friday, she exposed herself to the danger and the possibility of losing things such as the subject cellular phone to pickpockets. As an accountable officer, she was under obligation to exercise proper degree of care and diligence in safeguarding the property, taking into account what a reasonable and prudent man would have done under the circumstances. Dr. Cruz could have reasonably foreseen the danger that would befall her and took precautions against its mischievous result. Therefore, having been remiss in her obligation in the keeping or use of the subject government issued cellular phone, she has to answer for its loss as required under Section 105 of PD 1445. Additionally, to be exempt from liability because of fortuitous event as invoked by petitioner Dr. Cruz has no bearing to the case at bar considering that Article 1174 of the New Civil Code which supports

said contention applies only if the actor is free from any negligence or misconduct by which the loss/damage may have been occasioned. Further, in Nakpil vs. CA, 144 SCRA 596, one who creates a dangerous condition cannot escape liability although an act of God may have intervened. Thus, there being a positive showing of negligence on the part of the petitioner in the keeping of the subject cellular phone, then, such negligence militates against the grant of herein request for relief.
[5]

Hence, this Petition.[6]

Issues In her Memorandum, petitioner faults the COA with the following alleged errors:
I.

The Commission Proper committed grave abuse of discretion amounting to excess of jurisdiction in finding that petitioner failed to exercise that degree of diligence required to prevent the loss of the government-issued cellular phone when she opted to take the light railway transit (LRT) in going to her official station in CAMANAVA District, Caloocan City Hall, Caloocan City[; and]
II.

The Commission Proper committed grave abuse of discretion when it a pplied the case of Nakpil vs. CA, 144 SCRA 596 and disregarded Article 1174 of the New Civil Code in denying petitioners request for relief from accountability[.]
[7]

In the main, the issues in this case are: (1) whether petitioner was negligent in the care of the government-issued cellular phone, and (2) whether she should be held accountable for its loss. We note that in its Manifestation and Motion dated October 24, 2000, reiterated in a similar pleading dated March 28, 2001, the Office of the Solicitor General (OSG) sided with petitioner and prayed for the granting of the Petition. Hence, the COA was herein represented by its general counsel, Atty. Santos M. Alquisalas. The Courts Ruling The Petition is meritorious.

First Issue:

Required Degree of Diligence The crucial question to ask is whether petitioner should be deemed negligent when, on that fateful afternoon, she opted to board the LRT where the cellular phone was stolen. We answer in the negative. Riding the LRT cannot per se be denounced as a negligent act; more so under the circumstances in this case, in which petitioners mode of transit was influenced by time and money considerations. Petitioner boarded the LRT to be able to arrive in Caloocan in time for her 3:00 p.m. meeting. Any prudent or rational person under similar circumstances can reasonably be expected to do the same. Possession of a cellular phone would not and should not hinder one from boarding an LRT coach as petitioner did. After all, whether she took a bus or a jeepney, the risk of theft would have also been present. Because of her relatively low position and pay, she was not expected to have her own vehicle or to ride a taxicab. Neither had the government granted her the use of any vehicle.

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent man and reasonable man would not do.
[8]

Negligence is want of care required by the circumstances.

[9]

The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed, and the importance of the act which he is to perform. (Emphasis supplied)
[10]

The Rules[11] provide that property for official use and purpose shall be utilized with the diligence of a good father of a family. Extra-ordinary measures are not called for in taking care of a cellular phone while in transit. Placing it in a bag away from covetous eyes and holding on to that bag, as done by petitioner, is ordinarily sufficient care of a cellular phone while travelling on board the LRT. The records do not show any specific act of negligence on her part. It is a settled rule that negligence cannot be presumed;[12] it has to be proven. In the absence of any shred of evidence thereof, respondents gravely abused their discretion in finding petitioner negligent. Granting that the presence or the absence of negligence is a factual matter, the consistent ruling of this Court is that findings of fact of an administrative agency must be respected, so long as they are supported by substantial evidence .[13] But lacking support, the factual finding of the COA on the existence of negligence cannot stand on its own and is therefore not binding on the Court. While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless hold that a government employee who has not been proven

to be culpable or negligent should not be held accountable for the loss of a cellular phone, which was stolen from her while she was riding on the LRT.

Second Issue: Accountability The assailed COA Decision directly attributed the loss of the cellular phone to a robbery (bag slashing). However, it denies the request of petitioner for relief from accountability, because it found her to be negligent. Earlier, we have already ruled that the finding of negligence had no factual or legal basis and was therefore invalid. What now remains to be resolved is whether petitioner observed the proper procedure for notifying the government of the loss. Within thirty days of the loss,[14] petitioner applied for relief from accountability. We hold that such application be deemed as the notification of the loss of the subject cellular phone. She has also done her part in proving that the loss was due to theft or robbery. The resident auditor[15]concerned and the COA itself have accepted that the robbery or theft had actually taken place. Necessarily, in the absence of evidence showing negligence on her part, credit for the loss of the cellular phone is proper under the law.[16] It also stands to reason that P4,238 should now be refunded to her. That was the amount she had to pay on June 3, 1999, upon her retirement from government service at age 65. Her dogged persistence in pursuing this appeal has not been lost on this Court. We agree that, in fighting for her rights, she must have spent more than the value of the lost cellular phone. Hence, we can only applaud her for being true to her calling as an educator and a role model for our young people. Honor, respect and dignity are the values she has pursued. May her tribe increase! WHEREFORE, the Petition is GRANTED. The assailed Decision of the Commission on Audit is REVERSED and SET ASIDE. The request of Petitioner Filonila O. Cruz for relief from accountability for the lost Nokia 909 analog cellular phone is GRANTED, and the amount ofP4,238 paid under Official Receipt No. 6606743 is ordered to be REFUNDED to her upon finality of this Decision. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Bellosillo, J., on leave. Mendoza, J., in the result.

[1]

Signed by Hon. Celso D. Gangan (chairman), Hon. Raul C. Flores and Hon. Emmanuel M. Dalman (commissioners).

[2]

Assailed Decision, p. 3; rollo, p. 22. Director IV Marcelino P. Hanapol Jr., one of herein respondents. State Auditor III Glenda E. Manlapaz, one of herein respondents. Assailed Decision, pp. 2-3; rollo, pp. 21-22. This case was deemed submitted for resolution on April 30, 2001, upon receipt by this Court of respondents Memorandum, which was signed by Atty. Santos M. Alquizalas. Petitioners Memorandum, signed by Atty. Marilou O. Dela Cruz, was received by the Court on April 25, 2001. Petitioners Memorandum, p. 6; rollo, p. 105. McKee v. Intermediate Appellate Court, 211 SCRA 517, July 16, 1992, per Davide, Jr., J. Valenzuela v. Court of Appeals, 253 SCRA 303, February 7, 1996, per Kapunan, J. Sangco, Torts and Damages, Vol. 1, 1993 rev. ed. p. 5; citing US v. De los Reyes, 1 Phil. 375, 377, September 16, 1902. 8, par. 3, Rules Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees. Francisco, Evidence, 1994 ed., p. 388. Bulilan v. Commission on Audit, supra. Assailed Decision; Excerpt of Documents and Summary of Events. 2nd Indorsement dated February 26, 1999, signed by State Auditor III Manlapaz. PD 1445, Sec. 73. Credit for loss occurring in transit or due to casualty or force majeure.- (1) When a loss of government funds or property occurs while they are in transit or the loss is caused by fire, theft, or other casualty or force majeure, the officer accountable therefor or having custody thereof shall immediately notify the Commission or the auditor concerned and, within thirty days or such longer period as the Commission or auditor may in the particular case allow, shall present his application for relief, with the available supporting evidence. Whenever warranted by the evidence credit for the loss shall be allowed. x x x.

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36. REYES V. COMELEC C/O VITTO

37. VALMONTE V. BELMONTE JR C/O BELLE