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Republic of the Philippines

OFFICE OF THE OMBUDSMAN


Office of the Ombudsman (Visayas)
M. Velez Street, Guadalupe, Cebu City 6000

EDGAR CABUGTAS TAGANILE OMB-V-C-17-0474


Complainant For: Violation of
Article 155 (Alarms
and Scandals) and
Article 282 (Grave
Threats) of the
Revised Penal Code
-versus-

EFREN MANDAJOYAN OMB-V-A-17-0497


Punong Barangay For: Grave
Misconduct
Barangay General Luna Oppression
Municipality of Toboso
Province of Negros Occidental

EFREN P. BATAYOLA
Police Officer 2
Philippine National Police
Municipality of Toboso
Province of Negros Occidental
Respondents
x----------------------------------------------x

MEMORANDUM
(FOR THE COMPLAINANT)

Complainant, through the undersigned counsel, most


respectfully states that:

TIMELINESS TO FILE MEMORANDUM


Complainant, duly represented by his counsel appeared
before the Office of the Ombudsman on July 18, 2019. After the
conclusion of the marking of Exhibits, parties were directed to
submit their respective memoranda within a non-extendible period
of ten (10) days. The last day is July 28, 2019, a Sunday. Considering
that this a weekend, the last day will be July 29, 2019, hence, this
memorandum is filed within the prescribed period.

THE PARTIES
The complainant is a Filipino, of legal age, a resident and
registered voter of Barangay Gen Luna, Municipality of Toboso,
Province of Negros Occidental.

The respondents are likewise Filipino, of legal age, and


residents of Toboso, Negros Occidental, Philippines. Efren Batayola
is a member of the Philippine National Police while Efren
Mandajoyan is the Punong Barangay of Barangay General Luna,
Municipality of Toboso.

FACTS OF THE CASE

On September 11, 2017 at around 11 in the evening, the


complainant and his common-law-wife, Wilma Denoyo, were
sleeping in their house when suddenly, they were awaken by a
Barangay Tanod, named Manny Lee Mariposa. Puzzled of what
was happening, the former asked the latter on what is his intention
to awaken them in an unlikely hour of the night. According to the
barangay tanod, the Punong Barangay Mandajoyan, one of the
respondents herein, is waiting at the main road and he wanted to
have an urgent talk with the complainant.

The complainant went with the barangay tanod and upon


meeting the Punong Barangay, he saw that he was with two other
barangay tanods, one of which is Jolito Labrador, and the other one
was unknown to him. Before saying anything further, Punong
Barangay Madajoyan pulled his short firearm from his waist.
Although not aimed to the complainant, he saw that the
respondent’s right forefinger was already on the trigger. Then he
immediately and sarcastically threatened the complainit, to wit:

“Pa asset-asset ka, gusto ka pusilon ta ka?


Gusto mo mabuhi ka pa?

English Translation:

“You pretend to be an asset; you want me to


shoot you? You still want to live?”
Punong barangay Mandajoyan made more threatening words
against the complainant and several minutes later, he left together
with the three (3) tanods. As they distanced from the scene, the
complainant has seen that the respondent fired his gun to the air for
five (5) times while cursing the name of the complainant.

Due to extreme fear, the complainant with his common-law


wife opted to stay safe in their house and waited until the morning
when it is already safe to report it to the police.

The next day, September 12, 2017, the complainant and his
common-law wife went to the police station of Toboso, Negros
Occidental to file criminal charges against the punong barangay.
Instead of recording the complaint, PO2 Efren Batayola, another
respondent herein, who was the desk officer during that time,
insisted that the case be referred to the office of the Punong
Barangay Efren Mandajoyan who is also the same person subject of
the complaint. This left the complainant with confusion, considering
that the one he was complaining was a public official of that same
barangay.

Despite of the confusion on what to do, the complainant


herein followed the instructions of the police investigator and
directed the complaint to the punong barangay himself. On
September 13, 2017, the complainant went to the Barangay Hall to
file a complaint, but the same was not accepted by one of the
barangay personnel. A few minutes later, the punong barangay
arrived and started to berate the complainant and even threatened
to kill him.

It was only on October 2, 2017 that the incident was finally


recorded at the Police Station after the complainant has asked for
the office of the DILG to intervene in the said complaint.

On October 23, 2017, the complainant filed a criminal and


administrative complaint before the Office of the Ombudsman
against respondents herein.

The respondents in their counter-affidavit averred that the


complainant was actively involved in illegal drugs proliferation and
he was a drug surrender, and that the punong barangay as the
chairman of BADAC, is tasked to prevent the spread of such illegal
drugs. They also averred that the Toboso Police Station had already
issued a case referral to Barangay Gen Luna on September 12, 2017
after he reported the matter to the PNP station and this is so
because the incident and the nature of the case for Threats or Grave
Threats will fall under the Barangay Lupong Tagapamayapa
mediation proceedings.

After the preliminary conference on July 18, 2019, the parties


were ordered to submit their respective memorandum, hence this
submission.

ISSUE
1. WHETHER OR NOT THE RESPONDENTS ARE
ADMINISTRATIVELY LIABLE FOR GRAVE
MISCONDUCT/OPPRESSION;

2. WHETHER OR NOT THE CASE IS SUBJECT TO THE


BARANGAY LUPON TAGAPAMAYAPA MEDIATION
PROCEEDINGS;

3. WHETHER OR NOT THE COMPLAINANT IS A DRUG


SURRENDEREE;

DISCCUSSIONS

On respondent’s
administrative
liability

Misconduct is intentional wrongdoing or deliberate violation


of a rule of law or standard of behavior. To constitute an
administrative offense, misconduct should relate to or be connected
with the performance of the official functions and duties of a public
officer. In grave misconduct, as distinguished from simple
misconduct, the elements of corruption, clear intent to violate the
law, or flagrant disregard of an established rule must be manifest.

The Supreme Court in Largo v. Court of Appeals stressed the


criteria that an act, to constitute grave misconduct, must not be
committed in his private capacity and should bear a direct
relation to and be connected with the performance of his official
duties.

Efren Mandajoyan’s acts, as Punong Barangay, met the


criteria laid in Largo vs. Court of Appeals. To begin with, he was not
acting in his private capacity when he acted menacingly towards
the complainant, it being clear that his resentment is towards the
complainant’s act of being a police asset, and his desire to lessen the
drug proliferation in their barangay. Moreover, it did not matter
that his acts were committed outside of office hours, because they
were intimately connected to the office of the offender. An act is
intimately connected to the office of the offender if it is
committed as the consequence of the performance of the office by
him, or if it cannot exist without the office even if public office is
not an element of the crime in the abstract. (Alarila vs
Sandiganbayan. G.R. No. 136806, August 22, 2000).

The quantum of proof required in administrative proceedings


is substantial evidence. The Court in Ganzon vs. Arlos (G.R. No.
174321, October 22, 2013 )

xxxxx Substantial evidence, according to


Section 5 of Rule 133, Rules of Court, is "that
amount of relevant evidence which a reasonable
mind might accept as adequate to justify a
conclusion." In contrast, proof beyond reasonable
doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute
certainty; moral certainty only is required, or that
degree of proof which produces conviction in an
unprejudiced mind xxxxx

Moreover, oppresion has been defined as the act of cruelty,


severity, unlawful exaction, domination or excessive use of
authority. R.A 3109, otherwise known as the Anti-Graft and
Corrupt Practices of Public officers is applicable here, to wit:

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:

Sec. 3 (f):

- Neglecting or refusing, after due demand or


request, without sufficient justification, to act
within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage, or
for the purpose of favoring his own interest or
giving undue advantage in favor of or
discriminating against any other interested party.

From the facts of the foregoing, it is thus clear that the act of
PO2 Batayola constitutes an administrative liability, by refusing to
give the complainant herein the opportunity, without any
justification, his request so as to give favor to another party, which
amounts to a corrupt practice in the discharge of his official
function

The case is not subject to the barangay


lupon tagapamayapa mediation
proceedings

The Revised Katarungang Pambarangay under R.A. 7160,


otherwise known as the Local Government Code of 1991, states that
“All disputes are subject to Barangay conciliation pursuant to the
Revised Katarungang Pambarangay Law xxxxx and prior recourse
thereto is a pre-condition before filing a complaint in court or any
government offices, except in the following disputes:

Section 2 of R. A 7160

Xxxxx (2) Where one party is a public officer


or employee and the dispute relates to the
performance of his official functions; xxxxx

It is clear therefore from the foregoing provisions that the


Katarungang Pambarangay shall have no power over disputes
involving public officer, most especially, the Punong Barangay
himself as a respondent. The same would tantamount to a conflict
of interest.

By express statutory inclusion and exclusion, the Lupon shall


have no jurisdiction over disputes where one of the parties is a
public officer or employee and the dispute relates to the
performance of his official functions. The respondent, in his
counter-affidavit made mention that he is the chairman of the
BADAC, a group tasked to prevent the spread of illegal drugs. It is
therefore clear that the punong barangay has abused his power in
order to perform his official function.

The desk officer has failed to realize the nature of this case
and did not comply with the requirement of law that this case
should not be referred to the Katarungang Pambarangay Mediation
proceeding. There is a discrepancy to the act done of the desk
officer which he knew to himself that this case should not be
directed to the office of the barangay because it is the Punong
Barangay himself who is a party to the case.

Respondent PO2 Batayola also alleges that during the time of


the incident, he was not a desk officer but a Police Investigator, so
he was not responsible for the recording of an incident report.
However, in a 1Designation order issued by the Toboso Municipal
Police Station, the same was only issued on October 9, 2017. This is
inconsistent with his testimony. The incident happened on
September 12, 2017, but his designation as Police Investigator is
only on October 9, 2017. There is enough showing that the evidence
adduced by respondent to prove that he is not a desk officer during
the incident is in all sense fabricated.

Moreover, the respondent has failed to perform his duty by


not giving the complainant the opportunity to put on police record
the incident that happened during that time. The respondent
averred that the complainant also failed to contact the PNP hotline
immediately or even after the incident that night. This is untenable.
The issue is not on the investigation, because what the complainant
just wants is to put on police record the incident that transpired that
night, which respondent refused.

The complainant is
not a drug surrenderee

Respondent contends that the complainant was a drug


surrenderee, and the act of the Punong Barangay was in consonance
with his aim to sustain the status of its barangay as “DRUG
CLEARED”. Moreover, they aver that reports and information have
shown that the illegal activities were starting to proliferate again as
former drug surrenderees, were going back to their old ways and
into active illegal drugs us.

This cannot be sustained. Board Regulation No. 04, series of


2016 of the Dangerous Drugs Board, otherwise known as the
“Oplan Sagip” has laid its guidelines on voluntarily surrender of
Drug Users and Dependents and Monitoring Mechanism of
Barangay Anti-Drug Abuse Campaigns.

Section 3 of Board Resolution No. 04, series of 2016, to wit:

1 Designation Order
xxxxx The whole process of voluntary surrender to the authorities
shall be properly documented by the Duty Officer (DO) of the
office where the individual/s surrendered and covered by video
recording, if possible. xxxxx

xxxxx The surrenderer shall be made to sign an AFFIDAVIT OF


UNDERTAKING and WAIVER allowing the conduct of an
assessment (drug dependency examination), physical/medical
examination and drug test. It shall also provide that the
surrenderer will fully cooperate with the prescribed program and
that he shall reform himself/herself and will no longer participate
in any illegal drug activity. The Affidavit and Waiver shall be
subscribed before and by any competent authority. Xxxxx

The respondents, having completely failed to submit any


evidence or documents as required by the above provisions, cannot
invoke or assert that the complainant was a drug surrenderer. There
be no showing of a quantum of evidence by the respondents, the
statements therefore are mere allegations. There was never a record
on the PNP, nor any mugshots or fingerprints, or any records to
support their claims. Mere allegation and speculation is not
evidence, and is not equivalent to proof ( Miro vs. Mendoza, G.R.
Nos. 172532 172544-45, November 20, 2013) .

PRAYER
WHEREFORE, in view of the foregoing, it is most respectfully
prayed of this Honorable Office that:

1. The respondents be held administratively liable for grave


misconduct and oppression;
2. There be finding of probable cause to hold the respondents
guilty of the grave threats and alarms and scandals;
3. The respondents be preventively suspended from the office
they hold in order to avoid undue influence and fabrication of
documents to their defense.

Other relief that is just and equitable under the circumstance


are likewise prayed for.

July 21, 2019, Bacolod City for Cebu City, Philippines.


MALUNES, MAMPANG & MONTORO
LAW OFFICE
Counsel for Respondent Valencia
Room 304, Park Lane Bldg.
Hilado-Tindalo Ave., Shopping
Bacolod City, Philippines

By:

ARIEL I. MALUNES
Roll of Attorney No. 51729
IBP No. 023918, Jan. 10, 2018, Bacolod City
PTR No. 1205860, 01/16/18- E.B. Magalona, Neg. Occ.
MCLE Compliance No. V- 0011018
Valid until April 14, 2019

Copy furnished:

ATTY. DAX MALONY P. MONTEALEGRE


Counsel for the Respondents
Suites 301-304, C & F Ramirez Building II
S.B Cabahug Street, Centro, Mandaue City, Cebu 6614
Telefax no. (032) 2384281

EXPLANATION

The foregoing memorandum was furnished to the


respondents and filed in this Honorable Office via registered mail
due to distance and lack of material time making it impractical to
effect personal service.

ARIEL I. MALUNES