G.R. No.

229781

SENATOR LEILA M. DE LIMA, Petitioner vs.

HON. JUANITA GUERRERO, in her capacity as Presiding Judge, Regional Trial Court of Muntinlupa City,
Branch 204, PEOPLE OF THE PHILIPPINES, P/DIR. GEN. RONALD M. DELA ROSA, in his capacity as Chief of
the Philippine National Police, PSUPT. PHILIP GIL M. PHILIPPS, in his capacity as Director, Headquarters
Support Service, SUPT. ARNEL JAMANDRON APUD, in his capacity as Chief, PNP Custodial Service Unit,
and ALL PERSONS ACTING UNDER THEIR CONTROL, SUPERVISION, INSTRUCTION OR DIRECTION IN
RELATION TO THE ORDERS THAT MAY BE ISSUED BY THE COURT, Respondents

DECISION

VELASCO, JR., J.:

For consideration is the Petition for Certiorari and Prohibition with Application for a Writ of Preliminary
Injunction, and Urgent Prayer for Temporary Restraining Order and Status Quo Ante Order1 under Rule
65 of the Rules of Court filed by petitioner Senator Leila De Lima. In it, petitioner assails the following
orders and warrant issued by respondent judge Hon. Juanita Guerrero of the Regional Trial Court (RTC) of
Muntinlupa City, Branch 204, in Criminal Case No. 17-165, entitled "People vs. Leila De Lima, et al.:" (1)
the Order dated February 23, 2017 finding probable cause for the issuance of warrant of arrest against
petitioner De Lima; (2) the Warrant of Arrest against De Lima also dated February 23, 2017; (3) the Order
dated February 24, 2017 committing the petitioner to the custody of the PNP Custodial Center; and
finally, (4) the supposed omission of the respondent judge to act on petitioner's Motion to Quash,
through which she questioned the jurisdiction of the RTC.2

Antecedents

The facts are undisputed. The Senate and the House of Representatives conducted several inquiries on
the proliferation of dangerous drugs syndicated at the New Bilibid Prison (NBP), inviting inmates who
executed affidavits in support of their testimonies.3 These legislative inquiries led to the filing of the
following complaints with the Department of Justice:

a) NPS No. XVI-INV-16J-00313, entitled "Volunteers against Crime and Corruption (VACC), represented by
Dante Jimenez vs. Senator Leila M. De Lima, et al.;"

b) NPS No. XVI-INV-16J-00315, entitled "Reynaldo Esmeralda and Ruel Lasala vs. Senator Leila De Lima,
et al.;"

c) NPS No. XVI-INV-16K-00331, entitled "Jaybee Nifio Sebastian, represented by his wife Roxanne
Sebastian, vs. Senator Leila M De Lima, et al.;" and

d) NPS No. XVI-INV-16K-00336, entitled "National Bureau of Investigation (NBI) vs. Senator Leila M. De
Lima, et al. "4
Pursuant to DOJ Department Order No. 790, the four cases were consolidated and the DOJ Panel of
Prosecutors (DOJ Panel),5 headed by Senior Assistant State Prosecutor Peter Ong, was directed to
conduct the requisite preliminary investigation.6

The DOJ Panel conducted a preliminary hearing on December 2, 2016,7 wherein the petitioner, through
her counsel, filed an Omnibus Motion to Immediately Endorse the Cases to the Office of the
Ombudsman and for the Inhibition of the Panel of Prosecutors and the Secretary of Justice ("Omnibus
Motion").8 In the main, the petitioner argued that the Office of the Ombudsman has the exclusive
authority and jurisdiction to hear the four complaints against her. Further, alleging evident partiality on
the part of the DOJ Panel, the petitioner contended that the DOJ prosecutors should inhibit themselves
and refer the complaints to the Office of the Ombudsman.

A hearing on the Omnibus Motion was conducted on December 9, 2016,9 wherein the complainants,
YACC, Reynaldo Esmeralda (Esmeralda) and Ruel Lasala (Lasala), filed a Joint Comment/Opposition to the
Omnibus Motion. 10

On December 12, 2016, petitioner, in turn, interposed a Reply to the Joint Comment/Opposition filed by
complainants VACC, Esmeralda and Lasala. In addition, petitioner submitted a Manifestation with Motion
to First Resolve Pending Incident and to Defer Further Proceedings. 11

During the hearing conducted on December 21, 2016, petitioner manifested that she has decided not to
submit her counter-affidavit citing the pendency of her two motions.12 The DOJ Panel, however, ruled
that it will not entertain belatedly filed counter-affidavits, and declared all pending incidents and the
cases as submitted for resolution. Petitioner moved for but was denied reconsideration by the DOJ
Panel.13

On January 13, 2017, petitioner filed before the Court of Appeals a Petition for Prohibition and
Certiorari14assailing the jurisdiction of the DOJ Panel over the complaints against her. The petitions,
docketed as CA-G.R. No. 149097 and CA-G.R. No. SP No. 149385, are currently pending with the Special
6th Division of the appellate court.15 Meanwhile, in the absence of a restraining order issued by the
Court of Appeals, the DOJ Panel proceeded with the conduct of the preliminary investigation16 and, in
its Joint Resolution dated February 14, 2017,17 recommended the filing of Informations against
petitioner De Lima. Accordingly, on February 17, 2017, three Informations were filed against petitioner
De Lima and several co-accused before the RTC ofMuntinlupa City. One of the Infonnations was docketed
as Criminal Case No. 17-16518 and raffled off to Branch 204, presided by respondent judge. This
Information charging petitioner for violation of Section 5 in relation to Section (jj), Section 26(b), and
Section 28 of Republic Act No. (RA) 9165, contained the following averments:

That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and
within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of the
Department of Justice, and accused Rafael Marcos Z. Rages, being then the Officer-in-Charge of the
Bureau of Corrections, by taking advantage of their public office, conspiring and confederating with
accused Ronnie P. Dayan, being then an employee of the Department of Justice detailed to De Lima, all
of them having moral ascendancy or influence over inmates in the New Bilibid Prison, did then and there
commit illegal drug trading, in the following manner: De Lima and Ragos, with the use of their power,
position, and authority, demand, solicit and extort money from the high profile inmates in the New
Bilibid Prison to support the senatorial bid of De Lima in the May 2016 election; by reason of which, the
inmates, not being lawfully authorized by law and through the use of mobile phones and other
electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs, and
thereafter give and deliver to De Lima, through Ragos and Dayan, the proceeds of illegal drug trading
amounting to Five Million (₱5,000,000.00) Pesos on 24 November 2012, Five Million (₱5,000,000.00)
Pesos on 15 December 2012, and One Hundred Thousand (₱100,000.00) Pesos weekly "tara" each from
the high profile inmates in the New Bilibid Prison.19

On February 20, 2017, petitioner filed a Motion to Quash,20mainly raising the following: the RTC lacks
jurisdiction over the offense charged against petitioner; the DOJ Panel lacks authority to file the
Information; the Information charges more than one offense; the allegations and the recitals of facts do
not allege the corpus delicti of the charge; the Information is based on testimonies of witnesses who are
not qualified to be discharged as state witnesses; and the testimonies of these witnesses are hearsay.21

On February 23, 2017, respondent judge issued the presently assailed Order 22finding probable cause
for the issuance of warrants of arrest against De Lima and her co-accused. The Order stated, viz.:

After a careful evaluation of the herein Information and all the evidence presented during the
preliminary investigation conducted in this case by the Department of Justice, Manila, the Court finds
sufficient probable cause for the issuance of Warrants of Arrest against all the accused LEILA M. DE LIMA,
RAFAEL MARCOS Z. RAGOS and RONNIE P ALISOC DAYAN.

WHEREFORE, let Warrants of Arrest be issued against the abovementioned accused.

SO ORDERED.23

Accordingly, the questioned Warrant of Arrest dated February 23, 2017 ,24 which contained no
recommendation for bail, was issued against petitioner.

On February 24, 2017, the PNP Investigation and Detection Group served the Warrant of Arrest on
petitioner and the respondent judge issued the assailed February 24, 2017 Order,25 committing
petitioner to the custody of the PNP Custodial Center.

On February 27, 2017, petitioner repaired to this court via the present petition, praying for the following
reliefs:

a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017, the
Warrant of Arrest dated the same date, and the Order dated 24 February 2017 of the Regional Trial
Court - Branch 204, Muntinlupa City, in Criminal Case No. 17-165 entitled People of the Philippines
versus Leila M De Lima, et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further
proceedings until and unless the Motion to Quash is resolved with finality;
c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and a
writ of preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the Order
and Warrant of Arrest, both dated February 23, 201 7, thereby recalling both processes and restoring
petitioner to her liberty and freedom.26

On March 9, 2017, the Office of the Solicitor General (OSG), on behalf of the respondents, interposed its
Comment to the petition.27 The OSG argued that the petition should be dismissed as De Lima failed to
show that she has no other plain, speedy, and adequate remedy. Further, the OSG posited that the
petitioner did not observe the hierarchy of courts and violated the rule against forum shopping. On
substantive grounds, the OSG asserted inter alia that the RTC has jurisdiction over the offense charged
against the petitioner, that the respondent judge observed the constitutional and procedural rules, and
so did not commit grave abuse of discretion, in the issuance of the assailed orders and warrant.28

On petitioner's motion, the Court directed the holding of oral arguments on the significant issues raised.
The Court then heard the parties in oral arguments on March 14, 21, and 28, 2017.29

In the meantime, the OSG filed a Manifestation dated March 13, 2017,30 claiming that petitioner
falsified the jurats appearing in the: (1) Verification and Certification against Forum Shopping page of her
petition; and (2) Affidavit of Merit in support of her prayer for injunctive relief. The OSG alleged that
while the advertedjurats appeared to be notarized by a certain Atty. Maria Cecille C. Tresvalles-Cabalo on
February 24, 2017, the guest logbook31 in the PNP Custodial Center Unit in Camp Crame for February
24, 2017 does not bear the name of Atty. Tresvalles-Cabalo. Thus, so the OSG maintained, petitioner De
Lima did not actually appear and swear before the notary public on such date in Quezon City, contrary to
the allegations in the jurats. For the OSG, the petition should therefore be dismissed outright for the
falsity committed by petitioner De Lima.

In compliance with an Order of this Court, petitioner filed the Affidavit of Atty. Maria Cecille C. Tresvalles-
Cabalo dated March 20, 201732 to shed light on the allegations of falsity in petitioner'sjurats.

The parties simultaneously filed their respective Memoranda on April 17, 2017.33

The Issues

From the pleadings and as delineated in this Court's Advisory dated March 10, 201734 and discussed by
the parties during the oral arguments, the issues for resolution by this Court are:

Procedural Issues:

A Whether or not petitioner is excused from compliance with the doctrine on hierarchy of courts
considering that the petition should first be filed with the Court of Appeals.

B. Whether or not the pendency of the Motion to Quash the Information before the trial court renders
the instant petition premature.
C. Whether or not petitioner, in filing the present petition, violated the rule against forum shopping
given the pendency of the Motion to Quash the Information before the Regional Trial Court of
Muntinlupa City in Criminal Case No. 17-165 and the Petition for Certiorari filed before the Court of
Appeals in C.A. G.R. SP No. 149097, assailing the preliminary investigation conducted by the DOJ Panel.

Substantive Issues:

A. Whether the Regional Trial Court or the Sandiganbayan has the jurisdiction over the violation of
Republic Act No. 9165 averred in the assailed Information.

B. Whether or not the respondent gravely abused her discretion in finding probable cause to issue the
Warrant of Arrest against petitioner.

C. Whether or not petitioner is entitled to a Temporary Restraining Order and/or Status Quo Ante Order
in the interim until the instant petition is resolved or until the trial court rules on the Motion to Quash.

OUR RULING

Before proceeding to a discussion on the outlined issues, We shall first confront the issue of the alleged
falsification committed by petitioner in the jurats of her Verification and Certification against Forum
Shopping and Affidavit of Merit in support of her prayer for injunctive relief.

In her Affidavit, Atty. Tresvalles-Cabalo disproves the OSG's allegation that she did not notarize the
petitioner's Verification and Certification against Forum Shopping and Affidavit of Merit in this wise:

4. On February 24, 2017 at or around nine in the morning (9:00 AM), I went to PNP, CIDG, Camp Crame,
Quezon City to notarize the Petition as discussed the previous night.

5. I met Senator De Lima when she was brought to the CIDG at Camp Crame and I was informed that the
Petition was already signed and ready for notarization.

6. I was then provided the Petition by her staff. I examined the signature of Senator De Lima and
confirmed that it was signed by her. I have known the signature of the senator given our personal
relationship. Nonetheless, I still requested from her staff a photocopy of any of her government-issued
valid Identification Cards (ID) bearing her signature. A photocopy of her passport was presented to me. I
compared the signatures on the Petition and the Passport and I was able to verify that the Petition was
in fact signed by her. Afterwards, I attached the photocopy of her Passport to the Petition which I
appended to my Notarial Report/Record.

7. Since I already know that Sen. De Lima caused the preparation of the Petition and that it was her who
signed the same, I stamped and signed the same.

8. To confirm with Senator De Lima that I have already notarized the Petition, I sought entry to the
detention facility at or around three in the afternoon (3:00 PM). x x x
11. Since I was never cleared after hours of waiting, I was not able to talk again to Senator De Lima to
confirm the notarization of the Petition. I then decided to leave Camp Crame.35

At first glance, it is curious that Atty. Tresvalles-Cabalo who claims to have "stamped and signed the
[Verification and Certification and Affidavit of Merit]" inside Camp Crame, presumably in De Lima's
presence, still found it necessary to, hours later, "confirm with Senator De Lima that [she had] already
notarized the Petition." Nonetheless, assuming the veracity of the allegations narrated in the Affidavit, it
is immediately clear that petitioner De Lima did not sign the Verification and Certification against Forum
Shopping and Affidavit of Merit in front of the notary public. This is contrary to the jurats (i.e., the
certifications of the notary public at the end of the instruments) signed by Atty. Tresvalles-Cabalo that
the documents were "SUBSCRIBED AND SWORN to before me."

Such clear breach of notarial protocol is highly censurable36 as Section 6, Rule II of the 2004 Rules on
Notarial Practice requires the affiant, petitioner De Lima in this case, to sign the instrument or document
in the presence of the notary, viz.:

SECTION 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through competent
evidence of identity as defined by these Rules;

(c) signs the instrument or document in the presence of the notary; and

(d) takes an oath or affirmation before the notary public as to such instrument or document.(Emphasis
and underscoring supplied.)

While there is jurisprudence to the effect that "an irregular notarization merely reduces the evidentiary
value of a document to that of a private document, which requires /roof of its due execution and
authenticity to be admissible as evidence,"37 the same cannot be considered controlling in determining
compliance with the requirements of Sections 1 and 2, Rule 65 of the Rules of Court. Both Sections 1 and
2 of Rule 6538 require that the petitions for certiorari and prohibition must be verified and accompanied
by a "sworn certificate of non-forum shopping."

In this regard, Section 4, Rule 7 of the Rules of Civil Procedure states that "[a] pleading is verified by an
affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his
personal knowledge or based on authentic records." "A pleading required to be verified which x x x lacks
a proper verification, shall be treated as an unsigned pleading." Meanwhile, Section 5, Rule 7 of the
Rules of Civil Procedure provides that "[t]he plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or
filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action
or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that
the same or similar action or claim has been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed."
"Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice,
unless otherwise provided x x x."

In this case, when petitioner De Lima failed to sign the Verification and Certification against Forum
Shopping in the presence of the notary, she has likewise failed to properly swear under oath the
contents thereof, thereby rendering false and null the jurat and invalidating the Verification and
Certification against Forum Shopping. The significance of a proper jurat and the effect of its invalidity was
elucidated in William Go Que Construction v. Court of Appeals,39where this Court held that:

In .this case, it is undisputed that the Verification/Certification against Forum Shopping attached to the
petition for certiorari in CA-G.R. SP No. 109427 was not accompanied with a valid affidavit/properly
certified under oath. This was because the jurat thereof was defective in that it did not indicate the
pertinent details regarding the affiants' (i.e., private respondents) competent evidence of identities.

Under Section 6, Rule II of AM. No. 02-8-13-SC 63 dated July 6, 2004, entitled the "2004 Rules on
Notarial Practice" (2004 Rules on Notarial Practice), ajurat refers to an act in which an individual on a
single occasion:

In Fernandez v. Villegas (Fernandez), the Court pronounced that noncompliance with the verification
requirement or a defect therein "does not necessarily render the pleading fatally defective. The court
may order its submission or correction or act on the pleading if the attending circumstances are such
that strict compliance with the Rule may be dispensed with in order that the ends of justice may be
served thereby." "Verification is deemed substantially complied with when one who has ample
knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and
when matters alleged in the petition have been made in good faith or are true and correct." Here, there
was no substantial compliance with the verification requirement as it cannot be ascertained that any of
the private respondents actually swore to the truth of the allegations in the petition for certiorari in CA-
G.R. SP No. 109427 given the lack of competent evidence of any of their identities. Because of this, the
fact that even one of the private respondents swore that the allegations in the pleading are true and
correct of his knowledge and belief is shrouded in doubt.

For the same reason, neither was there substantial compliance with the certification against forum
shopping requirement. In Fernandez, the Court explained that "non-compliance therewith or a defect
therein, unlike in verification, is generally not curable by its subsequent submission or correction thereof,
unless there is a need to relax the Rule on the ground of 'substantial compliance' or presence of 'special
circumstances or compelling reasons."' Here, the CA did not mention - nor does there exist - any
perceivable special circumstance or compelling reason which justifies the rules' relaxation. At all events,
it is uncertain if any of the private respondents certified under oath that no similar action has been filed
or is pending in another forum.
Case law states that "[v]erification is required to secure an assurance that the allegations in the petition
have been made in good faith or are true and correct, and not merely speculative." On the other hand,
"[t]he certification against forum shopping is required based on the principle that a party-litigant should
not be allowed to pursue simultaneous remedies in different fora." The important purposes behind
these requirements cannot be simply brushed aside absent any sustainable explanation justifying their
relaxation. In this case, proper justification is especially called for in light of the serious allegations of
forgery as to the signatures of the remaining private respondents, i.e., Lominiqui and Andales. Thus, by
simply treating the insufficient submissions before it as compliance with its Resolution dated August 13,
2009 requiring anew the submission of a proper verification/certification against forum shopping, the CA
patently and grossly ignored settled procedural rules and, hence, gravely abused its discretion. All things
considered, the proper course of action was for it to dismiss the petition.40 (Emphasis and underscoring
supplied.)

Without the presence of the notary upon the signing of the Verification and Certification against Forum
Shopping, there is no assurance that the petitioner swore under oath that the allegations in the petition
have been made in good faith or are true and correct, and not merely speculative. It must be noted that
verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the
name of mere expedience or sheer caprice,41 as what apparently happened in the present case.
Similarly, the absence of the notary public when petitioner allegedly affixed her signature also negates a
proper attestation that forum shopping has not been committed by the filing of the petition. Thus, the
petition is, for all intents and purposes, an unsigned pleading that does not deserve the cognizance of
this Court.42 In Salum bides, Jr. v. Office of the Ombudsman,43the Court held thus:

The Court has distinguished the effects of non-compliance with the requirement of verification and that
of certification against forum shopping. A defective verification shall be treated as an unsigned pleading
and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be
remedied, while the failure to certifv against forum shopping shall be cause for dismissal without
prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading.
(Emphasis and italicization from the original.)

Notably, petitioner has not proffered any reason to justify her failure to sign the Verification and
Certification Against Forum Shopping in the presence of the notary. There is, therefore, no justification to
relax the rules and excuse the petitioner's non-compliance therewith. This Court had reminded parties
seeking the ultimate relief of certiorari to observe the rules, since nonobservance thereof cannot be
brushed aside as a "mere technicality."44 Procedural rules are not to be belittled or simply disregarded,
for these prescribed procedures ensure an orderly and speedy administration of justice.45 Thus, as in
William Go Que Construction, the proper course of action is to dismiss outright the present petition.

Even if We set aside this procedural infirmity, the petition just the same merits denial on several other
grounds.

PETITIONER DISREGARDED THE HIERARCHY OF COURTS

Trifling with the rule on hierarchy of courts is looked upon with disfavor by this Court.46 It will not
entertain direct resort to it when relief can be obtained in the lower courts.47 The Court has repeatedly
emphasized that the rule on hierarchy of courts is an important component of the orderly administration
of justice and not imposed merely for whimsical and arbitrary reasons.48 In The Diocese of Bacolod v.
Commission on Elections,49the Court explained the reason for the doctrine thusly:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the
policy is not to be ignored without serious consequences. The strictness of the policy is designed to
shield the Court from having to deal with causes that are also well within the competence of the lower
courts, and thus leave time for the Court to deal with the more fundamental and more essential tasks
that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of
certiorari, prohibition and mandamus only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy.

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial courts
do not only determine the facts from the evaluation of the evidence presented before them. They are
likewise competent to determine issues of law which may include the validity of an ordinance, statute, or
even an executive issuance in relation to the Constitution. To effectively perform these functions, they
are territorially organized into regions and then into branches. Their writs generally reach within those
territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the facts from
the evidence as these are physically presented before them. In many instances, the facts occur within
their territorial jurisdiction, which properly present the "actual case" that makes ripe a determination of
the constitutionality of such action. The consequences, of course, would be national in scope. There are,
however, some cases where resort to courts at their level would not be practical considering their
decisions could still be appealed before the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts
and law made by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the
review of the actions of the trial court. But the Court of Appeals also has original jurisdiction over most
special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is competent to
determine facts and, ideally, should act on constitutional issues that may not necessarily be novel unless
there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating - in the
light of new circumstances or in the light of some confusion of bench or bar - existing precedents. Rather
than a court of first instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.50 (Emphasis supplied.)

Nonetheless, there are recognized exceptions to this rule and direct resort to this Court were allowed in
some instances. These exceptions were summarized in a case of recent vintage, Aala v. Uy, as follows:

In a fairly recent case, we summarized other well-defined exceptions to the doctrine on hierarchy of
courts. Immediate resort to this Court may be allowed when any of the following grounds are present:
(1) when genuine issues of constitutionality are raised that must be addressed immediately; (2) when
the case involves transcendental importance; (3) when the case is novel; (4) when the constitutional
issues raised are better decided by this Court; (5) when time is of the essence; (6) when the subject of
review involves acts of a constitutional organ; (7) when there is no other plain, speedy, adequate remedy
in the ordinary course of law; (8) when the petition includes questions that may affect public welfare,
public policy, or demanded by the broader interest of justice; (9) when the order complained of was a
patent nullity; and (10) when the appeal was considered as an inappropriate remedy.51

Unfortunately, none of these exceptions were sufficiently established in the present petition so as to
convince this court to brush aside the rules on the hierarchy of courts.

Petitioner's allegation that her case has sparked national and international interest is obviously not
covered by the exceptions to the rules on hierarchy of courts. The notoriety of a case, without more, is
not and will not be a reason for this Court's decisions. Neither will this Court be swayed to relax its rules
on the bare fact that the petitioner belongs to the minority party in the present administration. A
primary hallmark of an independent judiciary is its political neutrality. This Court is thus loath to perceive
and consider the issues before it through the warped prisms of political partisanships.

That the petitioner is a senator of the republic does not also merit a special treatment of her case. The
right to equal treatment before the law accorded to every Filipino also forbids the elevation of
petitioner's cause on account of her position and status in the government.

Further, contrary to her position, the matter presented before the Court is not of first impression.
Petitioner is not the first public official accused of violating RA 9165 nor is she the first defendant to
question the finding of probable cause for her arrest. In fact, stripped of all political complexions, the
controversy involves run-of-the mill matters that could have been resolved with ease by the lower court
had it been given a chance to do so in the first place.

In like manner, petitioner's argument that the rule on the hierarchy of court should be disregarded as her
case involves pure questions of law does not obtain. One of the grounds upon which petitioner anchors
her case is that the respondent judge erred and committed grave abuse of discretion in finding probable
cause to issue her arrest. By itself, this ground removes the case from the ambit of cases involving pure
questions of law. It is established that the issue of whether or not probable cause exists for the issuance
of warrants for the arrest of the accused is a question of fact, determinable as it is from a review of the
allegations in the Information, the Resolution of the Investigating Prosecutor, including other documents
and/ or evidence appended to the Information.52 This matter, therefore, should have first been brought
before the appellate court, which is in the better position to review and determine factual matters.

Yet, petitioner harps on the supposed judicial efficiency and economy of abandoning the rule on the
hierarchy of courts in the present case. Indeed, the Court has considered the practical aspects of the
administration of justice in deciding to apply the exceptions rather than the rule. However, it is all the
more for these practical considerations that the Court must insist on the application of the rule and not
the exceptions in this case. As petitioner herself alleges, with the President having declared the fight
against illegal drugs and corruption as central to his platform of government, there will be a spike of
cases brought before the courts involving drugs and public officers.53 As it now stands, there are
232,557 criminal cases involving drugs, and around 260,796 criminal cases involving other offenses
pending before the R TCs.54 This Court cannot thus allow a precedent allowing public officers assailing
the finding of probable cause for the issuance of arrest warrants to be brought directly to this Court,
bypassing the appellate court, without any compelling reason.

THE PRESENT PETITION IS PREMATURE

The prematurity of the present petition is at once betrayed in the reliefs sought by petitioner's Prayer,
which to restate for added emphasis, provides:

WHEREFORE, premises considered, and in the interest of substantial justice and fair play, Petitioner
respectfully prays the Honorable Court that judgment be rendered:

a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017, the
Warrant of Arrest dated the same date, and the Order dated 24 February 2017 of the Regional Trial
CourtBranch 204, Muntinlupa City, in Criminal Case No. 17-165 entitled People of the Philippines versus
Leila M De Lima et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further
proceedings until and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and a
writ of preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the Order
and Warrant of Arrest, both dated February 23, 201 7, thereby recalling both processes and restoring
petitioner to her liberty and freedom.55 (Emphasis supplied)

Under paragraph (a), petitioner asks for a writ of certiorari annulling the Order dated February 23, 2017
finding probable cause, the warrant of arrest and the Order dated February 24, 2017 committing
petitioner to the custody of the PNP Custodial Center. Clearly petitioner seeks the recall of said orders to
effectuate her release from detention and restore her liberty. She did not ask for the dismissal of the
subject criminal case.

More importantly, her request for the issuance of a writ of prohibition under paragraph (b) of the prayer
"until and unless the Motion to Quash is resolved with finality," is an unmistakable admission that the
RTC has yet to rule on her Motion to Quash and the existence of the RTC's authority to rule on the said
motion. This admission against interest binds the petitioner; an admission against interest being the best
evidence that affords the greatest certainty of the facts in dispute.56 It is based on the presumption that
"no man would declare anything against himself unless such declaration is true. "57 It can be presumed
then that the declaration corresponds with the truth, and it is her fault if it does not.58
Moreover, petitioner under paragraphs (c) and (d) prayed for a TRO and writ of preliminary injunction
and a status quo ante order which easily reveal her real motive in filing the instant petition-to restore to
"petitioner her liberty and freedom."

Nowhere in the prayer did petitioner explicitly ask for the dismissal of Criminal Case No. 17-165. What is
clear is she merely asked the respondent judge to rule on her Motion to Quash before issuing the
warrant of arrest.

In view of the foregoing, there is no other course of action to take than to dismiss the petition on the
ground of prematurity and allow respondent Judge to rule on the Motion to Quash according to the
desire of petitioner.

This Court, in Solid Builders Inc. v. China Banking Corp., explained why a party should not pre-empt the
action of a trial court:

Even Article 1229 of the Civil Code, which SBI and MFII invoke, works against them. Under that provision,
the equitable reduction of the penalty stipulated by the parties in their contract will be based on a
finding by the court that such penalty is iniquitous or unconscionable. Here, the trial court has not yet
made a ruling as to whether the penalty agreed upon by CBC with SBI and MFII is unconscionable. Such
finding will be made by the trial court only after it has heard both parties and weighed their respective
evidence in light of all relevant circumstances. Hence, for SBI and MFII to claim any right or benefit under
that provision at this point is premature.59 (Emphasis supplied)

In State of Investment House, Inc. v. Court of Appeals,60the Court likewise held that a petition for
certiorari can be resorted to only after the court a quo has already and actually rendered its decision. It
held, viz.:

We note, however, that the appellate court never actually ruled on whether or not petitioner's right had
prescribed. It merely declared that it was in a position to so rule and thereafter required the parties to
submit memoranda. In making such a declaration, did the CA commit grave abuse of discretion
amounting to lack of jurisdiction? It did not.

All things considered, this petition is premature. The CA has decided nothing and whatever petitioner's
vehement objections may be (to any eventual ruling on the issue of prescription) should be raised only
after such ruling shall have actually been promulgated.

The situation evidently does not yet call for a recourse to a petition for certiorari under Rule 65.
61(Italicization from the original. Emphasis supplied.)

An analogous ruling was made by this Court in Diaz v. Nora, where it ruled in this wise:

x x x In the case of the respondent labor arbiter, he has not denied the motion for execution filed by the
petitioner. He merely did not act on the same. Neither had petitioner urged the immediate resolution of
his motion for execution by said arbiter. In the case of the respondent NLRC, it was not even given the
opportunity to pass upon the question raised by petitioner as to whether or not it has jurisdiction over
the appeal, so the records of the case can be remanded to the respondent labor arbiter for execution of
the decision.

Obviously, petitioner had a plain, speedy and adequate remedy to seek relief from public respondents
but he failed to avail himself of the same before coming to this Court. To say the least, the petition is
premature and must be struck down.62 (Emphasis supplied.)

The dissents would deny the applicability of the foregoing on the ground that these were not criminal
cases that involved a pending motion to quash. However, it should be obvious from the afore-quoted
excerpts that the nature of the cases had nothing to do with this Court's finding of prematurity in those
cases. Instead, what was stressed therein was that the lower courts had not yet made, nor was not given
the opportunity to make, a ruling before the parties came before this forum.

Indeed, the prematurity of the present petition cannot be over-emphasized considering that petitioner is
actually asking the Court to rule on some of the grounds subject of her Motion to Quash. The Court, if it
rules positively in favor of petitioner regarding the grounds of the Motion to Quash, will be preempting
the respondent Judge from doing her duty to resolve the said motion and even prejudge the case. This is
clearly outside of the ambit of orderly and expeditious rules of procedure. This, without a doubt, causes
an inevitable delay in the proceedings in the trial court, as the latter abstains from resolving the
incidents until this Court rules with finality on the instant petition.

Without such order, the present petition cannot satisfy the requirements set before this Court can
exercise its review powers. Section 5 (2)(C) of Article VIII of the 1987 Constitution explicitly requires the
existence of "final judgments and orders of lower courts" before the Court can exercise its power to
"review, revise, reverse, modify, or affirm on appeal or certiorari" in "all cases in which the jurisdiction of
any lower court is in issue," viz.:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved. (Emphasis supplied.)
In the palpable absence of a ruling on the Motion to Quash -- which puts the jurisdiction of the lower
court in issue -- there is no controversy for this Court to resolve; there is simply no final judgment or
order of the lower court to review, revise, reverse, modify, or affirm. As per the block letter provision of
the Constitution, this Court cannot exercise its jurisdiction in a vacuum nor issue a definitive ruling on
mere suppositions.

Succinctly, the present petition is immediately dismissible for this Court lacks jurisdiction to review a
non-existent court action. It can only act to protect a party from a real and actual ruling by a lower
tribunal. Surely, it is not for this Court to negate "uncertain contingent future event that may not occur
as anticipated, or indeed may not occur at all," as the lower court's feared denial of the subject Motion
to Quash.63

The established rule is that courts of justice will take cognizance only of controversies "wherein actual
and not merely hypothetical issues are involved."64 The reason underlying the rule is "to prevent the
courts through avoidance of premature adjudication from entangling themselves in abstract
disagreements, and for us to be satisfied that the case does not present a hypothetical injury or a claim
contingent upon some event that has not and indeed may never transpire."65

Even granting arguendo that what is invoked is the original jurisdiction of this Court under Section 5 (1)
of Article VIII, the petition nonetheless falls short of the Constitutional requirements and of Rule 65 of
the Rules of Court. In the absence of a final judgment, order, or ruling on the Motion to Quash
challenging the jurisdiction of the lower court, there is no occasion for this Court to issue the
extraordinary writ of certiorari. Without a judgment or ruling, there is nothing for this Court to declare
as having been issued without jurisdiction or in grave abuse of discretion.

Furthermore, it is a basic requirement under Rule 65 that there be "[no] other plain, speedy and
adequate remedy found in law."66 Thus, the failure to exhaust all other remedies, as will be later
discussed, before a premature resort to this Court is fatal to the petitioner's cause of action.

Petitioner even failed to move for the reconsideration of the February 23 and 24, 2017 Orders she is
currently assailing in this Petition. As this Court held in Estrada v. Office of the Ombudsman, "[a] motion
for reconsideration allows the public respondent an opportunity to correct its factual and legal errors x x
x [it] is mandatory before the filing of a petition for certiorari."67The reasons proffered by petitioner fail
to justify her present premature recourse.

Various policies and rules have been issued to curb the tendencies of litigants to disregard, nay violate,
the rule enunciated in Section 5 of Article VIII of the Constitution to allow the Court to devote its time
and attention to matters within its jurisdiction and prevent the overcrowding of its docket. There is no
reason to consider the proceedings at bar as an exception.

PETITIONER VIOLATED THE RULE AGAINST FORUM SHOPPING

It is settled that forum shopping exists when a party repetitively avails himself of several judicial
remedies in different courts, simultaneously or successively, all substantially founded on the same
transactions and the same essential facts and circumstances, and all raising substantially the same issues
either pending in, or already resolved adversely by, some other court. It is considered an act of
malpractice as it trifles with the courts and abuses their processes.68 Thus, as elucidated in Luzon Iron
Development Group Corporation v. Bridgestone Mining and Development Corporation,69forum
shopping warrants the immediate dismissal of the suits filed:

Forum shopping is the act of litigants who repetitively avail themselves of multiple judicial remedies in
different fora, simultaneously or successively, all substantially founded on the same transactions and the
same essential facts and circumstances; and raising substantially similar issues either pending in or
already resolved adversely by some other court; or for the purpose of increasing their chances of
obtaining a favorable decision, if not in one court, then in another. The rationale against forum-shopping
is that a party should not be allowed to pursue simultaneous remedies in two different courts, for to do
so would constitute abuse of court processes which tends to degrade the administration of justice,
wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened
dockets of the courts.

What is essential in determining the existence of forum-shopping is the vexation caused the courts and
litigants by a party who asks different courts and/or administrative agencies to rule on similar or related
causes and/or grant the same or substantially similar reliefs, in the process creating the possibility of
conflicting decisions being rendered upon the same issues.

We emphasize that the grave evil sought to be avoided by the rule against forum-shopping is the
rendition by two competent tribunals of two separate and contradictory decisions. To avoid any
confusion, this Court adheres strictly to the rules against forum shopping, and any violation of these
rules results in the dismissal of a case. The acts committed and described herein can possibly constitute
direct contempt.70

This policy echoes the last sentence of Section 5, Rule 7 of the Rules of Court, which states that "[i]f the
acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall
be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a cause
for administrative sanctions."

The test to determine the existence of forum shopping is whether the elements of litis pendentia, or
whether a final judgment in one case amounts to res judicata in the other. Forum shopping therefore
exists when the following elements are present: (a) identity of parties, or at least such parties
representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed for, the
relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that
any judgment rendered in the other action will, regardless of which party is successful, amount to res
judicata in the action under consideration.71

Anent the first requisite, there is an identity of parties when the parties in both actions are the same, or
there is privity between them, or they are successors-in-interest by title subsequent to the
commencement of the action litigating for the same thing and under the same title and in the same
capacity.72
Meanwhile, the second and third requisites obtain where the same evidence necessary to sustain the
second cause of action is sufficient to authorize a recovery in the first, even if the forms or the nature of
the two (2) actions are different from each other. If the same facts or evidence would sustain both, the
two (2) actions are considered the same within the rule that the judgment in the former is a bar to the
subsequent action; otherwise, it is not.73

All these requisites are present in this case.

The presence of the first requisite is at once apparent. The petitioner is an accused in the criminal case
below, while the respondents in this case, all represented by the Solicitor General, have substantial
identity with the complainant in the criminal case still pending before the trial court.

As for the second requisite, even a cursory reading of the petition and the Motion to Quash will reveal
that the arguments and the reliefs prayed for are essentially the same. In both, petitioner advances the
RTC's supposed lack of jurisdiction over the offense, the alleged multiplicity of offenses included in the
Information; the purported lack of the corpus delicti of the charge, and, basically, the non-existence of
probable cause to indict her. And, removed of all non-essentials, she essentially prays for the same thing
in both the present petition and the Motion to Quash: the nullification of the Information and her
restoration to liberty and freedom. Thus, our ruling in Jent v. Tullet Prebon (Philippines), Inc. 74 does not
apply in the present case as the petition at bar and the motion to quash pending before the court a quo
involve similar if not the same reliefs. What is more, while Justice Caguioa highlights our pronouncement
in Jent excepting an "appeal or special civil action for certiorari" from the rule against the violation of
forum shopping, the good justice overlooks that the phrase had been used with respect to forum
shopping committed through successive actions by a "party, against whom an adverse judgment or order
has [already] been rendered in one forum."75 The exception with respect to an "appeal or special civil
action for certiorari" does not apply where the forum shopping is committed by simultaneous actions
where no judgment or order has yet been rendered by either forum. To restate for emphasis, the RTC
has yet to rule on the Motion to Quash. Thus, the present petition and the motion to quash before the R
TC are simultaneous actions that do not exempt petitions for certiorari from the rule against forum
shopping.

With the presence of the first two requisites, the third one necessarily obtains in the present case.
Should we grant the petition and declare the RTC without jurisdiction over the offense, the RTC is bound
to grant De Lima's Motion to Quash in deference to this Court's authority. In the alternative, if the trial
court rules on the Motion to Quash in the interim, the instant petition will be rendered moot and
academic.

In situations like the factual milieu of this instant petition, while nobody can restrain a party to a case
before the trial court to institute a petition for certiorari under Rule 65 of the Rules of Court, still such
petition must be rejected outright because petitions that cover simultaneous actions are anathema to
the orderly and expeditious processing and adjudication of cases.

On the ground of forum shopping alone, the petition merits immediate dismissal.
THE REGIONAL TRIAL COURT HAS JURISDICTION

Even discounting the petitioner's procedural lapses, this Court is still wont to deny the instant petition on
substantive grounds.

Petitioner argues that, based on the allegations of the Information in Criminal Case No. 17-165, the
Sandiganbayan has the jurisdiction to try and hear the case against her. She posits that the Information
charges her not with violation of RA 9165 but with Direct Bribery-a felony within the exclusive
jurisdiction of the Sandiganbayan given her rank as the former Secretary of Justice with Salary Grade 31.
For the petitioner, even assuming that the crime described in the Information is a violation of RA 9165,
the Sandiganbayan still has the exclusive jurisdiction to try the case considering that the acts described
in the Information were intimately related to her position as the Secretary of Justice. Some justices of
this Court would even adopt the petitioner's view, declaring that the Information charged against the
petitioner is Direct Bribery.

The respondents, on the other hand, maintain that the R TC has exclusive jurisdiction to try violations of
RA 9165, including the acts described in the Information against the petitioner. The Sandiganbayan, so
the respondents contend, was specifically created as an anti-graft court. It was never conferred with the
power to try drug-related cases even those committed by public officials. In fact, respondents point out
that the history of the laws enabling and governing the Sandiganbayan will reveal that its jurisdiction was
streamlined to address specific cases of graft and corruption, plunder, and acquisition of ill-gotten
wealth.

Before discussing the issue on jurisdiction over the subject matter, it is necessary to clarify the crime
with which the petitioner is being charged. For ease of reference, the Information filed with the R TC is
restated below:

PEOPLE OF THE PHILIPPINES,

Plaintiff,

Versus

Criminal Case No. 17-165

(NPS No. XVI-INV-16J-00315 and NPS No. XVl-INV-16K-00336) For: Violation of the Comprehensive
Dangerous Drugs Act of 2002, Section 5, in relation to Section 3(jj), Section 26 (b), and Section 28,
Republic Act No. 9165 (lllegal Drug Trading)

LEILA M. DE LIMA
(66 Laguna de Bay corner Subic Bay Drive, South Bay Village, Paraiiaque City and/or Room 502, GSIS
Building, Financial Center, Roxas Boulevard, Pasay City), RAFAEL MARCOS Z. RAGOS (c/o National Bureau
of Investigation, Taft Avenue, Manila) and RONNIE P ALISOC DAY AN, (Barangay Galarin, Urbiztondo,
Pangasinan), Accused

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

INFORMATION

The undersigned Prosecutors, constituted as a Panel pursuant to Department Orders 706 and 790 dated
October 14, 2016 and November 11, 2016, respectively, accuse LEILA M. DE LIMA, RAFAEL MARCOS Z.
RAGOS and RONNIE P ALISOC DAY AN, for violation of Section 5, in relation to Section 3 (jj), Section 26
(b) and Section 28, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Act of
2002, committed as follows:

That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and
within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of the
Department of Justice, and accused Rafael Marcos Z. Ragos, being then the Officer-in-Charge of the
Bureau of Corrections, by taking advantage of their public office, conspiring and confederating with
accused Ronnie P. Dayan, being then the employee of the Department of Justice detailed to De Lima, all
of them having moral ascendancy or influence over inmates in the New Bilibid Prison, did then and there
commit illegal drug trading, in the following manner: De Lima and Ragos, with the use of their power,
position, and authority demand, solicit and extort money from the high profile inmates in the New
Bilibid Prison to support the Senatorial bid of De Lima in the May 2016 election; by reason of which, the
inmates, not being lawfully authorized by law and through the use of mobile phones and other
electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs, and
thereafter give and deliver to De Lima, through Ragos and Dayan, the proceeds of illegal drug trading
amounting to Five Million (₱5,000,000.00) Pesos on 24 November 2012, Five Million (₱5,000,000.00)
Pesos on 15 December 2012, and One Hundred Thousand (₱l00,000.00) Pesos weekly "tara" each from
the high profile inmates in the New Bilibid Prison.

CONTRARY TO LAW.76

Notably, the designation, the prefatory statements and the accusatory portions of the Information
repeatedly provide that the petitioner is charged with "Violation of the Comprehensive Dangerous Drugs
Act of 2002, Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, Republic Act No. 9165."
From the very designation of the crime in the Information itself, it should be plain that the crime with
which the petitioner is charged is a violation of RA 9165. As this Court clarified in Quimvel v. People, 77
the designation of the offense in the Information is a critical element required under Section 6, Rule 110
of the Rules of Court in apprising the accused of the offense being charged, viz.:
The offense charged can also be elucidated by consulting the designation of the offense as appearing in
the Information. The designation of the offense is a critical element required under Sec. 6, Rule 110 of
the Rules of Court for it assists in apprising the accused of the offense being charged. Its inclusion in the
Information is imperative to avoid surprise on the accused and to afford him of the opportunity to
prepare his defense accordingly. Its import is underscored in this case where the preamble states that
the crime charged is of "Acts of Lasciviousness in relation to Section 5(b) of R.A. No.7610." 78(Emphasis
supplied.)

Further, a reading of the provisions of RA 9165 under which the petitioner is prosecuted would convey
that De Lima is being charged as a conspirator in the crime of Illegal Drug Trading. The pertinent
provisions of RA 9165 read:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text messages, e-
mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a
broker in any of such transactions whether for money or any other consideration in violation of this Act.

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos (₱500,000.00) to Ten
million pesos (₱10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall
sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport
any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity
involved, or shall act as a broker in any of such transactions.

SECTION 26. Attempt or Conspiracy. - Any attempt or conspiracy to commit the following unlawful acts
shall be penalized by the same penalty prescribed for the commission of the same as provided under this
Act:

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous
drug and/or controlled precursor and essential chemical;

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of the
unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification
from any public office, if those found guilty of such unlawful acts are government officials and
employees.

While it may be argued that some facts may be taken as constitutive of some elements of Direct Bribery
under the Revised Penal Code (RPC), these facts taken together with the other allegations in the
Information portray a much bigger picture, Illegal Drug Trading. The latter crime, described by the United
Nations Office on Drugs and Crime (UNODC) as "a global illicit trade involving the cultivation,
manufacture, distribution and sale of substances,"79 necessarily involves various component crimes, not
the least of which is the bribery and corruption of government officials. An example would be reports of
recent vintage regarding billions of pesos' worth of illegal drugs allowed to enter Philippine ports without
the scrutiny of Customs officials. Any money and bribery that may have changed hands to allow the
importation of the confiscated drugs are certainly but trivial contributions in the furtherance of the
transnational illegal drug trading - the offense for which the persons involved should be penalized.

Read as a whole, and not picked apart with each word or phrase construed separately, the Information
against De Lima goes beyond an indictment for Direct Bribery under Article 210 of the RPC.80 As Justice
Martires articulately explained, the averments on solicitation of money in the Information, which may be
taken as constitutive of bribery, form "part of the description on how illegal drug trading took place at
the NBP." The averments on how petitioner asked for and received money from the NBP inmates simply
complete the links of conspiracy between her, Ragos, Dayan and the NBP inmates in willfully and
unlawfully trading dangerous drugs through the use of mobile phones and other electronic devices
under Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, of RA 9165.

On this score, that it has not been alleged that petitioner actually participated in the actual trafficking of
dangerous drugs and had simply allowed the NBP inmates to do so is non sequitur given that the
allegation of conspiracy makes her liable for the acts of her co-conspirators. As this Court elucidated, it is
not indispensable for a co-conspirator to take a direct part in every act of the crime. A conspirator need
not even know of all the parts which the others have to perform,81 as conspiracy is the common design
to commit a felony; it is not participation in all the details of the execution of the crime. 82 As long as the
accused, in one way or another, helped and cooperated in the consummation of a felony, she is liable as
a co-principal.83 As the Information provides, De Lima's participation and cooperation was instrumental
in the trading of dangerous drugs by the NBP inmates. The minute details of this participation and
cooperation are matters of evidence that need not be specified in the Information but presented and
threshed out during trial.

Yet, some justices remain adamant in their position that the Information fails to allege the necessary
elements of Illegal Drug Trading. Justice Carpio, in particular, would cite cases supposedly enumerating
the elements necessary for a valid Information for Illegal Drug Trading. However, it should be noted that
the subject of these cases was "Illegal Sale" of dangerous drugs -- a crime separate and distinct from
"Illegal Trading" averred in the Information against De Lima. The elements of "Illegal Sale" will necessary
differ from the elements of Illegal Trading under Section 5, in relation to Section 3(jj), of RA 9165. The
definitions of these two separate acts are reproduced below for easy reference:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

(ii) Sell. - Any act of giving away any dangerous drug and/or controlled precursor and essential chemical
whether for money or any other consideration.

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text messages, e-
mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a
broker in any of such transactions whether for money or any other consideration in violation of this Act.
It is obvious from the foregoing that the crime of illegal trading has been written in strokes much broader
than that for illegal sale. In fact, an illegal sale of drugs may be considered as only one of the possible
component acts of illegal trading which may be committed through two modes: (1) illegal trafficking
using electronic devices; or (2) acting as a broker in any transactions involved in the illegal trafficking of
dangerous drugs.

On this score, the crime of "illegal trafficking" embraces various other offenses punishable by RA 9165.
Section 3(r) of RA 9165 provides:

(r) Illegal Trafficking. - The illegal cultivation, culture, delivery, administration, dispensation, manufacture,
sale, trading, transportation, distribution, importation, exportation and possession of any dangerous
drug and/or controlled precursor and essential chemical.

In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined as follows:

(a) Administer. - Any act of introducing any dangerous drug into the body of any person, with or without
his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of
indispensable assistance to a person in administering a dangerous drug to himself/herself unless
administered by a duly licensed practitioner for purposes of medication.

(d) Chemical Diversion. - The sale, distribution, supply or transport of legitimately imported, in-transit,
manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in
concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall
include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud,
destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail
fraud.

(i) Cultivate or Culture. - Any act of knowingly planting, growing, raising, or permitting the planting,
growing or raising of any plant which is the source of a dangerous drug.

(k) Deliver. - Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by
any means, with or without consideration.

(m) Dispense. - Any act of giving away, selling or distributing medicine or any dangerous drug with or
without the use of prescription.

(u) Manufacture. - The production, preparation, compounding or processing of any dangerous drug
and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis, and shall include any packaging or repackaging of such substances,
design or configuration of its form, or labeling or relabeling of its container; except that such terms do
not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly
authorized practitioner as an incident to his/her administration or dispensation of such drug or
substance in the course of his/her professional practice including research, teaching and chemical
analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose.
(kk) Use. - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing,
smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of
the body, any of the dangerous drugs.

With the complexity of the operations involved in Illegal Trading of drugs, as recognized and defined in
RA 9165, it will be quite myopic and restrictive to require the elements of Illegal Sale-a mere component
act-in the prosecution for Illegal Trading.

More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may make it impossible to
provide the details of the elements of Illegal Sale. By "using electronic devices such as, but not limited to,
text messages, email, mobile or landlines, two-way radios, internet, instant messengers and chat rooms,"
the Illegal Trading can be remotely perpetrated away from where the drugs are actually being sold; away
from the subject of the illegal sale. With the proliferation of digital technology coupled with ride sharing
and delivery services, Illegal Trading under RA 9165 can be committed without getting one's hand on the
substances or knowing and meeting the seller or buyer. To require the elements of Illegal Sale (the
identities of the buyer, seller, the object and consideration, in Illegal Trade) would be impractical.

The same may be said of the second mode for committing Illegal Trading, or trading by "acting as a
broker" in transactions involved in Illegal Trafficking. In this instance, the accused may neither have
physical possession of the drugs nor meet the buyer and seller and yet violate RA 9165. As pointed out
by Justice Perlas-Bernabe, as early as 1916, jurisprudence has defined a broker as one who is simply a
middleman, negotiating contracts relative to property with which he has no custody, viz.:

A broker is generally defined as one who is engaged, for others, on a commission, negotiating contracts
relative to property with the custody of which he has no concern; the negotiator between other parties,
never acting in his own name, but in the name of those who employed him; he is strictly a middleman
and for some purposes the agent of both parties.84 (Emphasis and underscoring supplied.)

In some cases, this Court even acknowledged persons as brokers even "where they actually took no part
in the negotiations, never saw the customer."85 For the Court, the primary occupation of a broker is
simply bringing "the buyer and the seller together, even if no sale is eventually made. "86 Hence, in
indictments for Illegal Trading, it is illogical to require the elements of Illegal Sale of drugs, such as the
identities of the buyer and the seller, the object and consideration.87 For the prosecution of Illegal
Trading of drugs to prosper, proof that the accused "act[ed] as a broker" or brought together the buyer
and seller of illegal drugs "using electronic devices such as, but not limited to, text messages, e-mail,
mobile or landlines, two-way radios, internet, instant messengers and chat rooms" is sufficient.

The DOJ' s designation of the charge as one for Illegal Drug Trading thus holds sway. After all, the
prosecution is vested with a wide range of discretion-including the discretion of whether, what, and
whom to charge.88 The exercise of this discretion depends on a smorgasboard of factors, which are best
appreciated by the prosecutors.89

As such, with the designation of the offense, the recital of facts in the Information, there can be no other
conclusion than that petitioner is being charged not with Direct Bribery but with violation of RA 9165.
Granting without conceding that the information contains averments which constitute the elements of
Direct Bribery or that more than one offence is charged or as ill this case, possibly bribery and violation
of RA 9165, still the prosecution has the authority to amend the information at any time before
arraignment. Since petitioner has not yet been arraigned, then the information subject of Criminal Case
No. 17-165 can still be amended pursuant to Section 14, Rule 110 of the Rules of Court which reads:

SECTION 14. Amendment or Substitution. - A complaint or information may be amended, in form or in

substance, without leave of court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.

Now the question that irresistibly demands an answer is whether it is the Sandiganbayan or the RTC that
has jurisdiction over the subject matter of Criminal Case No. 17-165, i.e., violation of RA 9165.

It is basic that jurisdiction over the subject matter in a criminal case is given only by law in the manner
and form prescribed by law.90 It is determined by the statute in force at the time of the commencement
of the action.91 Indeed, Congress has the plenary power to define, prescribe and apportion the
jurisdiction of various courts. It follows then that Congress may also, by law, provide that a certain class
of cases should be exclusively heard and determined by one court. Such would be a special law that is
construed as an exception to the general law on jurisdiction of courts.92

The pertinent special law governing drug-related cases is RA 9165, which updated the rules provided in
RA 6425, otherwise known as the Dangerous Drugs Act of 1972. A plain reading of RA 9165, as of RA
6425, will reveal that jurisdiction over drug-related cases is exclusively vested with the Regional Trial
Court and no other. The designation of the RTC as the court with the exclusive jurisdiction over drug-
related cases is apparent in the following provisions where it was expressly mentioned and recognized as
the only court with the authority to hear drug-related cases:

Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the
Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and
Essential Chemicals. - x x x x

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and
all the assets and properties of the accused either owned or held by him or in the name of some other
persons if the same shall be found to be manifestly out of proportion to his/her lawful income:

During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom,
which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be
in custodia legis and no bond shall be admitted for the release of the same.

Section 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary
Submission Program. - x x x
A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may
be filed by any person authorized by the Board with the Regional Trial Court of the province or city
where such person is found.

Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and
Rehabilitation. - If a person charged with an offense where the imposable penalty is imprisonment of
less than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of the
proceedings, to be a drug dependent, the prosecutor or the court as the case may be, shall suspend all
further proceedings and transmit copies of the record of the case to the Board.

In the event the Board determines, after medical examination, that public interest requires that such
drug dependent be committed to a center for treatment and rehabilitation, it shall file a petition for
his/her commitment with the regional trial court of the province or city where he/she is being
investigated or tried: x x x

Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing
Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this
Act. The number of courts designated in each judicial region shall be based on the population and the
number of cases pending in their respective jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act.

Notably, no other trial court was mentioned in RA 9165 as having the authority to take cognizance of
drug-related cases. Thus, in Morales v. Court of Appeals,93this Court categorically named the RTC as the
court with jurisdiction over drug related-cases, as follows:

Applying by analogy the ruling in People v. Simon, People v. De Lara, People v. Santos, and Ordonez v.
Vinarao, the imposable penalty in this case which involves 0.4587 grams of shabu should not exceed
prision correccional. We say by analogy because these cases involved marijuana, not methamphetamine
hydrochloride (shabu). In Section 20 of RA. No. 6425, as amended by Section 17 of RA No. 7659, the
maximum quantities of marijuana and methamphetamine hydrochloride for purposes of imposing the
maximum penalties are not the same. For the latter, if the quantity involved is 200 grams or more, the
penalty of reclusion perpetua to death and a fine ranging from ₱500,000 to PIO million shall be imposed.
Accordingly, if the quantity involved is below 200 grams, the imposable penalties should be as follows:

Clearly, the penalty which may be imposed for the offense charged in Criminal Case No. 96-8443 would
at most be only prision correccional duration is from six (6) months and one (1) day to six (6) years. Does
it follow then that, as the petitioner insists, the RTC has no jurisdiction thereon in view of the
amendment of Section 32 of B.P. Big. 129 by R.A. No. 7691, which vested upon Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts 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? This Section 32 as thus amended now reads:
The exception in the opening sentence is of special significance which we cannot disregard. x xx The
aforementioned exception refers not only to Section 20 of B.P. Blg. 129 providing for the jurisdiction of
Regional Trial Courts in criminal cases, but also to other laws which specifically lodge in Regional Trial
Courts exclusive jurisdiction over specific criminal cases, e. g., (a) Article 360 of the Revised Penal Code,
as amended by R.A. Nos. 1289 and 4363 on written defamation or libel; (b) Decree on Intellectual
Property (P. D. No. 49, as amended), which vests upon Courts of First Instance exclusive jurisdiction over
the cases therein mentioned regardless of the imposable penalty; and (c) more appropriately for the
case at bar, Section 39 of RA No. 6425, as amended by P.D. No. 44, which vests on Courts of First
Instance, Circuit Criminal Courts, and the Juvenile and Domestic Relations Courts concurrent exclusive
original jurisdiction over all cases involving violations of said Act.

That Congress indeed did not intend to repeal these special laws vesting exclusive jurisdiction in the
Regional Trial Courts over certain cases is clearly evident from the exception provided for in the opening
sentence of Section 32 of B.P. Blg. 129, as amended by RA No. 7691. These special laws are not,
therefore, covered by the repealing clause (Section 6) of RA No. 7691.

Neither can it be successfully argued that Section 39 of RA. No. 6425, as amended by P.D. No. 44, is no
longer operative because Section 44 of B.P. Big. 129 abolished the Courts of First Instance, Circuit
Criminal Courts, and Juvenile and Domestic Relations Courts. While, indeed, Section 44 provides that
these courts were to be "deemed automatically abolished" upon the declaration by the President that
the reorganization provided in B.P. Blg. 129 had been completed, this Court should not lose sight of the
fact that the Regional Trial Courts merely replaced the Courts of First Instance as clearly borne out by the
last two sentences of Section 44, to wit:

Consequently, it is not accurate to state that the "abolition" of the Courts of First Instance carried with it
the abolition of their exclusive original jurisdiction in drug cases vested by Section 39 of R.A. No. 6425, as
amended by P. D. No. 44. If that were so, then so must it be with respect to Article 360 of the Revised
Penal Code and Section 57 of the Decree on Intellectual Property. On the contrary, in the resolution of 19
June 1996 in Caro v. Court of Appeals and in the resolution of 26 February 1997 in Villalon v. Ba/dado,
this Court expressly ruled that Regional Trial Courts have the exclusive original jurisdiction over libel
cases pursuant to Article 360 of the Revised Penal Code. In Administrative Order No. 104-96 this Court
mandates that:

The same Administrative Order recognizes that violations of RA. No. 6425, as amended, regardless of the
quantity involved, are to be tried and decided by the Regional Trial Courts therein designated as special
courts.94 (Emphasis and underscoring supplied)

Yet, much has been made of the terminology used in Section 90 of RA 9165. The dissents would highlight
the provision's departure from Section 39 of RA 6425 - the erstwhile drugs law, which provides:

SECTION 39. Jurisdiction of the Circuit Criminal Court. - The Circuit Criminal Court shall have exclusive
original jurisdiction over all cases involving offenses punishable under this Act.
For those in the dissent, the failure to reproduce the phrase "exclusive original jurisdiction" is a clear
indication that no court, least of all the RTC, has been vested with such "exclusive original jurisdiction" so
that even the Sandiganbayan can take cognizance and resolve a criminal prosecution for violation of RA
9165.

As thoroughly discussed by Justice Peralta in his Concurring Opinion, such deduction is unwarranted
given the clear intent of the legislature not only to retain the "exclusive original jurisdiction" of the RTCs
over violations of the drugs law but to segregate from among the several RTCs of each judicial region
some RTCs that will "exclusively try and hear cases involving violations of [RA 9165)." If at all, the change
introduced by the new phraseology of Section 90, RA 9165 is not the deprivation of the RTCs' "exclusive
original jurisdiction" but the further restriction of this "exclusive original jurisdiction" to select RTCs of
each judicial region. This intent can be clearly gleaned from the interpellation on House Bill No. 4433,
entitled "An Act Instituting the Dangerous Drugs Act of 2002, repealing Republic Act No. 6425, as
amended:"

Initially, Rep. Dilangalen referred to the fact sheet attached to the Bill which states that the measure will
undertake a comprehensive amendment to the existing law on dangerous drugs -- RA No. 6425, as
amended. Adverting to Section 64 of the Bill on the repealing clause, he then asked whether the
Committee is in effect amending or repealing the aforecited law. Rep. Cuenco replied that any provision
of law which is in conflict with the provisions of the Bill is repealed and/or modified accordingly.

In this regard, Rep. Dilangalen suggested that if the Committee's intention was only to amend RA No.
6425, then the wording used should be "to amend" and not "to repeal" with regard to the provisions
that are contrary to the provisions of the Bill.

Adverting to Article VIII, Section 60, on Jurisdiction Over Dangerous Drugs Case, which provides that "the
Supreme Court shall designate regional trial courts to have original jurisdiction over all offenses
punishable by this Act," Rep. Dilangalen inquired whether it is the Committee's intention that certain
RTC salas will be designated by the Supreme Court to try drug-related offenses, although all RTCs have
original jurisdiction over those offenses.

Rep. Cuenco replied in the affirmative. He pointed that at present, the Supreme Court's assignment of
drug cases to certain judges is not exclusive because the latter can still handle cases other than drug-
related cases. He added that the Committee's intention is to assign drug-related cases to judges who will
handle exclusively these cases assigned to them.

In this regard, Rep. Dilangalen stated that, at the appropriate time, he would like to propose the
following amendment; "The Supreme Court shall designate specific salas of the RTC to try exclusively
offenses related to drugs."

Rep. Cuenca agreed therewith, adding that the Body is proposing the creation of exclusive drug courts
because at present, almost all of the judges are besieged by a lot of drug cases some of which have been
pending for almost 20 years.95 (Emphasis and underscoring supplied.)
Per the "Records of the Bilateral Conference Committee on the Disagreeing Provisions of Senate Bill No.
1858 and House Bill No. 4433," the term "designation" of R TCs that will exclusively handle drug-related
offenses was used to skirt the budgetary requirements that might accrue by the "creation" of exclusive
drugs courts. It was never intended to divest the R TCs of their exclusive original jurisdiction over drug-
related cases. The Records are clear:

THE CHAIRMAN (REP. CUENCO). x x x [W]e would like to propose the creation of drug courts to handle
exclusively drug cases; the imposition of a 60-day deadline on courts within which to decide drug cases;
and No. 3, provide penalties on officers of the law and government prosecutors for mishandling and
delaying drugs cases.

We will address these concerns one by one.

1. The possible creation of drugs courts to handle exclusively drug cases. Any comments?

THE CHAIRMAN (SEN. BARBERS). We have no objection to this proposal, Mr. Chairman. As a matter of
fact, this is one of the areas where we come into an agreement when we were in Japan. However, I just
would like to add a paragraph after the word "Act" in Section 86 of the Senate versions, Mr. Chairman.
And this is in connection with the designation of special courts by "The Supreme Court shall designate
special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and
hear cases involving violations of this Act. The number of court designated in each judicial region shall be
based on the population and the number of pending cases in their respective jurisdiction." That is my
proposal, Mr. Chairman.

THE CHAIRMAN (REP. CUENCO). We adopt the same proposal.

THE CHAIRMAN (SEN. BARBERS). I have no problem with that, Mr. Chairman, but I'd like to call your
attention to the fact that my proposal is only for designation because if it is for a creation that would
entail another budget, Mr. Chairman. And almost always, the Department of Budget would tell us at the
budget hearing that we lack funds, we do not have money. So that might delay the very purpose why we
want the RTC or the municipal courts to handle exclusively the drug cases. That's why my proposal is
designation not creation.

THE CHAIRMAN (REP. CUENCO). Areglado. No problem, designation. Approved.96

The exclusive original jurisdiction over violations of RA 9165 is not transferred to the Sandiganbayan
whenever the accused occupies a position classified as Grade 27 or higher, regardless of whether the
violation is alleged as committed in relation to office. The power of the Sandiganbayan to sit in judgment
of high-ranking government officials is not omnipotent. The Sandiganbayan's jurisdiction is circumscribed
by law and its limits are currently defined and prescribed by RA 10660,97 which amended Presidential
Decree No. (PD) 1606.98 As it now stands, the Sandiganbayan has jurisdiction over the following:

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

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic
Act No. 6758), specifically including:

(2) Members of Congress and officials thereof classified as Grade '27' and higher under the
Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of
the Constitution; and

(5) All other national and local officials classified as Grade '27' and higher under the Compensation and
Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a. of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986. Provided, That the Regional Trial Court shall have exclusive original jurisdiction where
the information: (a) does not allege any damage to the government or any bribery; or (b) alleges damage
to the government or bribery arising from the same or closely related transactions or acts in an amount
not exceeding One Million pesos (₱l,000,000.00).

The foregoing immediately betrays that the Sandiganbayan primarily sits as a special anti-graft court
pursuant to a specific injunction in the 1973 Constitution.99 Its characterization and continuation as such
was expressly given a constitutional fiat under Section 4, Article XI of the 1987 Constitution, which
states:

SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by law.

It should occasion no surprise, therefore, that the Sandiganbayan is without jurisdiction to hear drug-
related cases. Even Section 4(b) of PD 1606, as amended by RA 10660, touted by the petitioner and the
dissents as a catchall provision, does not operate to strip the R TCs of its exclusive original jurisdiction
over violations of RA 9165. As pointed out by Justices Tijam and Martires, a perusal of the drugs law will
reveal that public officials were never considered excluded from its scope. Hence, Section 27 of RA 9165
punishes government officials found to have benefited from the trafficking of dangerous drugs, while
Section 28 of the law imposes the maximum penalty on such government officials and employees. The
adverted sections read:

SECTION 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or
Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of
Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laborat01y Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed
- The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (Pl0,000,000.00), in addition to absolute perpetual disqualification
from any public office, shall be imposed upon any public officer or employee who misappropriates,
misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or
laboratory equipment including the proceeds or properties obtained from the unlawful acts as provided
for in this Act.

Any elective local or national official found to have benefited from the proceeds of the trafficking of
dangerous drugs as prescribed in this Act, or have received any financial or material contributions or
donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in
this Act, shall be removed from office and perpetually disqualified from holding any elective or
appointive positions in the government, its divisions, subdivisions, and intermediaries, including
government-owned or -controlled corporations.

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of the
unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification
from any public office, if those found guilty of such unlawful acts are government officials and
employees. (Emphasis supplied)

Section 4(b) of PD 1606, as amended by RA 10660, provides but the general rule, couched in a "broad
and general phraseology. "100 Exceptions abound. Besides the jurisdiction on written defamations and
libel, as illustrated in Morales 101and People v. Benipayo, 102 the RTC is likewise given "exclusive original
jurisdiction to try and decide any criminal action or proceedings for violation of the Omnibus Election
Code,"103 regardless of whether such violation was committed by public officers occupying positions
classified as Grade 27 or higher in relation to their offices. In fact, offenses committed by members of the
Armed Forces in relation to their office, i.e., in the words of RA 7055,104 "service-connected crimes or
offenses," are not cognizable by the Sandiganbayan but by court-martial.

Certainly, jurisdiction over offenses and felonies committed by public officers is not determined solely by
the pay scale or by the fact that they were committed "in relation to their office." In determining the
forum vested with the jurisdiction to try and decide criminal actions, the laws governing the subject
matter of the criminal prosecution must likewise be considered.

In this case, RA 9165 specifies the RTC as the court with the jurisdiction to "exclusively try and hear cases
involving violations of [RA 9165)." This is an exception, couched in the special law on dangerous drugs, to
the general rule under Section 4(b) of PD 1606, as amended by RA 10660. It is a canon of statutory
construction that a special law prevails over a general law and the latter is to be considered as an
exception to the general.105

Parenthetically, it has been advanced that RA 10660 has repealed Section 90 of RA 9165. However, a
closer look at the repealing clause of RA 10660 will show that there is no express repeal of Section 90 of
RA 9165 and well-entrenched is the rule that an implied repeal is disfavored. It is only accepted upon the
clearest proof of inconsistency so repugnant that the two laws cannot be enforced.106 The presumption
against implied repeal is stronger when of two laws involved one is special and the other general.107
The mentioned rule in statutory construction that a special law prevails over a general law applies
regardless of the laws' respective dates of passage. Thus, this Court ruled:

x x x [I]t is a canon of statutory construction that a special law prevails over a general law - regardless of
their dates of passage - and the special is to be considered as remaining an exception to the general.

So also, every effort must be exerted to avoid a conflict between statutes. If reasonable construction is
possible, the laws must be reconciled in that manner.

Repeals of laws by implication moreover are not favored, and the mere repugnancy between two
statutes should be very clear to warrant the court in holding that the later in time repeals the other.108

To reiterate for emphasis, Section 4(b) of PD 1606, as amended by RA 10660, is the general law on
jurisdiction of the Sandiganbayan over crimes and offenses committed by high-ranking public officers in
relation to their office; Section 90, RA 9165 is the special law excluding from the Sandiganbayan's
jurisdiction violations of RA 9165 committed by such public officers. In the latter case, jurisdiction is
vested upon the RTCs designated by the Supreme Court as drugs court, regardless of whether the
violation of RA 9165 was committed in relation to the public officials' office.

The exceptional rule provided under Section 90, RA 9165 relegating original exclusive jurisdiction to RTCs
specially designated by the Supreme Court logically follows given the technical aspect of drug-related
cases. With the proliferation of cases involving violation of RA 9165, it is easy to dismiss them as
common and untechnical. However, narcotic substances possess unique characteristics that render them
not readily identifiable.109 In fact, they must first be subjected to scientific analysis by forensic chemists
to determine their composition and nature.110 Thus, judges presiding over designated drugs courts are
specially trained by the Philippine Judicial Academy (PhilJa) and given scientific instructions to equip
them with the proper tools to appreciate pharmacological evidence and give analytical insight upon this
esoteric subject. After all, the primary consideration of RA 9165 is the fact that the substances involved
are, in fact, dangerous drugs, their plant sources, or their controlled precursors and essential chemicals.
Without a doubt, not one of the Sandiganbayan justices were provided with knowledge and technical
expertise on matters relating to prohibited substances.

Hard figures likewise support the original and exclusive jurisdiction of the RTCs over violations of RA
9165. As previously stated, as of June 30, 2017, there are 232,557 drugs cases pending before the RTCs.
On the other hand, not even a single case filed before the Sandiganbayan from February 1979 to June
30, 2017 dealt with violations of the drugs law. Instead, true to its designation as an anti-graft court, the
bulk of the cases filed before the Sandiganbayan involve violations of RA 3019, entitled the "Anti-Graft
and Corrupt Practices Act" and malversation.111 With these, it would not only be unwise but reckless to
allow the tribunal uninstructed and inexperienced with the intricacies of drugs cases to hear and decide
violations of RA 9165 solely on account of the pay scale of the accused.

Likewise of special significance is the proviso introduced by RA 10660 which, to reiterate for emphasis,
states:

Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the information:
(a) does not allege any damage to the government or any bribery; or (b) alleges damage to the
government or bribery arising from the same or closely related transactions or acts in an amount not
exceeding One million pesos (₱l,000,000.00).

The clear import of the new paragraph introduced by RA 10660 is to streamline the cases handled by the
Sandiganbayan by delegating to the RTCs some cases involving high-ranking public officials. With the
dissents' proposition, opening the Sandiganbayan to the influx of drug-related cases, RA 10660 which
was intended to unclog the dockets of the Sandiganbayan would all be for naught. Hence, sustaining the
RTC's jurisdiction over drug-related cases despite the accused's high-ranking position, as in this case, is
all the more proper.

Even granting arguendo that the Court declares the Sandiganbayan has jurisdiction over the information
subject of Criminal Case No. 17-165, still it will not automatically result in the release from detention and
restore the liberty and freedom of petitioner. The R TC has several options if it dismisses the criminal
case based on the grounds raised by petitioner in her Motion to Quash.

Under Rule 117 of the Rules of Court, the trial court has three (3) possible alternative actions when
confronted with a Motion to Quash:

1. Order the amendment of the Infonnation;

2. Sustain the Motion to Quash; or

3. Deny the Motion to Quash.

The first two options are available to the trial court where the motion to quash is meritorious.
Specifically, as to the first option, this court had held that should the Information be deficient or lacking
in any material allegation, the trial court can order the amendment of the Information under Section 4,
Rule 117 of the Rules of Court, which states:

SECTION 4. Amendment of Complaint or Information. - If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order that an
amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be
given by the court an opportunity to correct the defect by amendment. The motion shall be granted if
the prosecution fails to make the amendment, or the complaint or information still suffers from the
same defect despite the amendment.

The failure of the trial court to order the correction of a defect in the Information curable by an
amendment amounts to an arbitrary exercise of power. So, this Court held in Dio v. People:

This Court has held that failure to provide the prosecution with the opportunity to amend is an arbitrary
exercise of power. In People v. Sandiganbayan (Fourth Division): When a motion to quash is filed
challenging the validity and sufficiency of an Information, and the defect may be cured by amendment,
courts must deny the motion to quash and order the prosecution to file an amended Information.
Generally, a defect pertaining to the failure of an Information to charge facts constituting an offense is
one that may be corrected by an amendment. In such instances, courts are mandated not to
automatically quash the Information; rather, it should grant the prosecution the opportunity to cure the
defect through an amendment. This rule allows a case to proceed without undue delay. By allowing the
defect to be cured by simple amendment, unnecessary appeals based on technical grounds, which only
result to prolonging the proceedings, are avoided.

More than this practical consideration, however, is the due process underpinnings of this rule. As
explained by this Court in People v. Andrade, the State, just like any other litigant, is entitled to its day in
court. Thus, a court's refusal to grant the prosecution the opportunity to amend an Information, where
such right is expressly granted under the Rules of Court and affirmed time and again in a string of
Supreme Court decisions, effectively curtails the State's right to due process.112

Notably, the defect involved in Dio was the Information's failure to establish the venue - a matter of
jurisdiction in criminal cases. Thus, in the case at bar where petitioner has not yet been arraigned, the
court a quo has the power to order the amendment of the February 17, 2017 Information filed against
the petitioner. This power to order the amendment is not reposed with this Court in the exercise of its
certiorari powers.

Nevertheless, should the trial court sustain the motion by actually ordering the quashal of the
Infonnation, the prosecution is not precluded from filing another information. An order sustaining the
motion to quash the information would neither bar another prosecution113 or require the release of the
accused from custody. Instead, under Section 5, Rule 117 of the Rules of Court, the trial court can simply
order that another complaint or information be filed without discharging the accused from custody.
Section 5, Rule 117 states, thus:

Section 5. Effect of sustaining the motion to quash. - If the motion to quash is sustained, the court may
order that another complaint or information be filed except as provided in Section 6 of this rule. If the
order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is
made or if having been made, no new information is filed within the time specified in the order or within
such further time as the court may allow for good cause, the accused, if in custody, shall be discharged
unless he is also in custody for another charge.
Section 6, Rule 117, adverted to in the foregoing provision, prevents the re-filing of an information on
only two grounds: that the criminal action or liability has already been extinguished, and that of double
jeopardy. Neither was invoked in petitioner's Motion to Quash filed before the court a quo.

The third option available to the trial court is the denial of the motion to quash. Even granting, for the
nonce, the petitioner's position that the trial court's issuance of the warrant for her arrest is an implied
denial of her Motion to Quash, the proper remedy against this court action is to proceed to trial, not to
file the present petition for certiorari. This Court in Galzote v. Briones reiterated this established
doctrine:

A preliminary consideration in this case relates to the propriety of the chosen legal remedies availed of
by the petitioner in the lower courts to question the denial of his motion to quash. In the usual course of
procedure, a denial of a motion to quash filed by the accused results in the continuation of the trial and
the determination of the guilt or innocence of the accused. If a judgment of conviction is rendered and
the lower court's decision of conviction is appealed, the accused can then raise the denial of his motion
to quash not only as an error committed by the trial court but as an added ground to overturn the
latter's ruling.

In this case, the petitioner did not proceed to trial but opted to immediately question the denial of his
motion to quash via a special civil action for certiorari under Rule 65 of the Rules of Court.

As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal from
an interlocutory order is not allowed under Section 1 (b), Rule 41 of the Rules of Court. Neither can it be
a proper subject of a petition for certiorari which can be used only in the absence of an appeal or any
other adequate, plain and speedy remedy. The plain and speedy remedy upon denial of an interlocutory
order is to proceed to trial as discussed above.114 (Emphasis and underscoring supplied)

At this juncture, it must be stressed yet again that the trial court has been denied the opportunity to act
and rule on petitioner's motion when the latter jumped the gun and prematurely repaired posthaste to
this Court, thereby immobilizing the trial court in its tracks. Verily, De Lima should have waited for the
decision on her motion to quash instead of prematurely filing the instant recourse.

In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition and
direct the trial court to rule on the Motion to Quash and undertake all the necessary proceedings to
expedite the adjudication of the subject criminal case.

RESPONDENT JUDGE DID NOT ABUSE HER DISCRETION IN FINDING PROBABLE CAUSE TO ORDER THE
PETITIONER'S ARREST

The basis for petitioner's contention that respondent judge committed grave abuse of discretion in
issuing the February 23, 2017 Order115 finding probable cause to arrest the petitioner is two-pronged:
respondent judge should have first resolved the pending Motion to Quash before ordering the
petitioner's arrest; and there is no probable cause to justify the petitioner's arrest.
Grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an evasion
of positive duty or a virtual refusal to act at all in contemplation of the law.116

In the present case, the respondent judge had no positive duty to first resolve the Motion to Quash
before issuing a warrant of arrest. There is no rule of procedure, statute, or jurisprudence to support the
petitioner's claim. Rather, Sec.5(a), Rule 112 of the Rules of Court117 required the respondent judge to
evaluate the prosecutor's resolution and its supporting evidence within a limited period of only ten (10)
days, viz.:

SEC. 5. When warrant of arrest may issue. -

(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or
information was filed pursuant to Section 6 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint
or information.

It is not far-fetched to conclude, therefore, that had the respondent judge waited longer and first
attended to the petitioner's Motion to Quash, she would have exposed herself to a possible
administrative liability for failure to observe Sec. 5(a), Rule 112 of the Rules of Court. Her exercise of
discretion was sound and in conformity with the provisions of the Rules of Court considering that a
Motion to Quash may be filed and, thus resolved by a trial court judge, at any time before the accused
petitioner enters her plea.118 What is more, it is in accord with this Court's ruling in Marcos v. Cabrera-
Faller119that "[a]s the presiding judge, it was her task, upon the filing of the Information, to first and
foremost determine the existence or non-existence of probable cause for the arrest of the accused."

This Court's ruling in Miranda v. Tuliao 120does not support the petitioner's position. Miranda does not
prevent a trial court from ordering the arrest of an accused even pending a motion to quash the
infonnation. At most, it simply explains that an accused can seek judicial relief even if he has not yet
been taken in the custody of law.

Undoubtedly, contrary to petitioner's postulation, there is no rule or basic principle requiring a trial
judge to first resolve a motion to quash, whether grounded on lack of jurisdiction or not, before issuing a
warrant of arrest. As such, respondent judge committed no grave abuse of discretion in issuing the
assailed February 23, 2017 Order even before resolving petitioner's Motion to Quash. There is certainly
no indication that respondent judge deviated from the usual procedure in finding probable cause to
issue the petitioner's arrest.

And yet, petitioner further contends that the language of the February 23, 2017 Order violated her
constitutional rights and is contrary to the doctrine in Soliven v. Makasiar. 121Petitioner maintains that
respondent judge failed to personally determine the probable cause for the issuance of the warrant of
arrest since, as stated in the assailed Order, respondent judge based her findings on the evidence
presented during the preliminary investigation and not on the report and supporting documents
submitted by the prosecutor.122 This hardly deserves serious consideration.

Personal determination of the existence of probable cause by the judge is required before a warrant of
arrest may issue. The Constitution123 and the Revised Rules of Criminal Procedure124 command the
judge "to refrain from making a mindless acquiescence to the prosecutor's findings and to conduct his
own examination of the facts and circumstances presented by both parties. "125 This much is clear from
this Court's n1ling in Soliven cited by the petitioner, viz.:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable cause.126

It must be emphasized, however, that in determining the probable cause to issue the warrant of arrest
against the petitioner, respondent judge evaluated the Information and "all the evidence presented
during the preliminary investigation conducted in this case." The assailed February 23, 2017 Order is
here restated for easy reference and provides, thusly:

After a careful evaluation of the herein Information and all the evidence presented during the
preliminary investigation conducted in this case by the Department of Justice, Manila, the Court finds
sufficient probable cause for the issuance of Warrants of Arrest against all the accused LEILA M. DE LIMA
x x x.127 (Emphasis supplied.)

As the prosecutor's report/resolution precisely finds support from the evidence presented during the
preliminary investigation, this Court cannot consider the respondent judge to have evaded her duty or
refused to perform her obligation to satisfy herself that substantial basis exists for the petitioner's arrest.
"All the evidence presented during the preliminary investigation" encompasses a broader category than
the "supporting evidence" required to be evaluated in Soliven. It may perhaps even be stated that
respondent judge performed her duty in a manner that far exceeds what is required of her by the rules
when she reviewed all the evidence, not just the supporting documents. At the very least, she certainly
discharged a judge's duty in finding probable cause for the issuance of a warrant, as described in Ho v.
People:

The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained
again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence
of such facts and circumstances that would lead a reasonably discreet and prudent person to believe
that an offense has been committed by the person sought to be arrested. Hence, the judge, before
issuing a warrant of arrest, 'must satisfy himself that based on the evidence submitted, there is sufficient
proof that a crime has been committed and that the person to be arrested is probably guilty thereof' At
this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence
submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence
in determining probable cause. In Webb v. De Leon we stressed that the judge merely determines the
probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo
hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to
see if it is supported by substantial evidence."

x x x [T]he judge cannot rely solely on the report of the prosecutor in finding probable cause to justify
the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's
report will support his own conclusion that there is reason to charge the accused for an offense and hold
him for trial. However, the judge must decide independently. Hence, he must have supporting evidence,
other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence
(or non-existence) of probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable cause is lodged in him by no
less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the
judge and speed up the litigation process by forwarding to the latter not only the information and his
bare resolution finding probable cause, but also so much of the records and the evidence on hand as to
enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of
arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts
by obliging them to examine the complete records of every case all the time simply for the purpose of
ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient
supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of
witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or,
at the very least, upon which to verify the findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as
Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in
the performance of his official duties and functions, which in turn gives his report the presumption of
accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in
the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty
if he relies merely on the certification or the report of the investigating officer.128 (Emphasis supplied.)

Notably, for purposes of determining the propriety of the issuance of a warrant of arrest, the judge is
tasked to merely determine the probability, not the certainty, of the guilt of the accused.129 She is given
wide latitude of discretion in the determination of probable cause for the issuance of warrants of
arrest.130 A finding of probable cause to order the accused's arrest does not require an inquiry into
whether there is sufficient evidence to procure a conviction.131 It is enough that it is believed that the
act or omission complained of constitutes the offense charged.132
Again, per the February 23, 2017 Order, respondent judge evaluated all the evidence presented during
the preliminary investigation and on the basis thereof found probable cause to issue the warrant of
arrest against the petitioner. This is not surprising given that the only evidence available on record are
those provided by the complainants and the petitioner, in fact, did not present any counter-affidavit or
evidence to controvert this. Thus, there is nothing to disprove the following preliminary findings of the
DOJ prosecutors relative to the allegations in the Information filed in Criminal Case No. 17-165:

Thus, from November 2012 to March 2013, De Lima[,] Ragos and Dayan should be indicted for violation
of Section 5, in relation to Section 3Gj), Section 26(b) and Section 28, of R.A. 9165, owing to the delivery
of PS million in two (2) occasions, on 24 November 2012 and 15 December 2012, to Dayan and De Lima.
The monies came inmate Peter Co [were] proceeds from illicit drug trade, which were given to support
the senatorial bid of De Lima.

Also in the same period, Dayan demanded from Ragos money to support the senatorial bid of De Lima.
Ragos demanded and received ₱100,000 tara from each of the high-profile inmates in exchange for
privileges, including their illicit drug trade. Ablen collected the money for Ragos who, in turn, delivered
them to Dayan at De Lima's residence.133

The foregoing findings of the DOJ find support in the affidavits and testimonies of several persons. For
instance, in his Affidavit dated September 3, 2016, NBI agent Jovencio P. Ablen, Jr. narrated, viz.:

21. On the morning of 24 November 2012, I received a call from Dep. Dir. Ragos asking where I was. I
told him I was at home. He replied that he will fetch me to accompany him on a very important task.

22. Approximately an hour later, he arrived at my house. I boarded his vehicle, a Hyundai Tucson, with
plate no. RGU910. He then told me that he will deliver something to the then Secretary of Justice, Sen.
Leila De Lima. He continued and said "Nior confidential 'to. Tayong dalawa lang ang nakakaalam nito.
Dadalhin natin yung quota kay Lola. SM 'yang nasa bag. Tingnan mo."

23. The black bag he was referring to was in front of my feet. It [was a] black handbag. When I opened
the bag, I saw bundles of One Thousand Peso bills.1âwphi1

24. At about 10 o'clock in the morning, we arrived at the house located at Laguna Bay corner Subic Bay
Drive, South Bay Village, Paranaque City.

25. Dep. Dir. Ragos parked his vehicle in front of the house. We both alighted the vehicle but he told me
to stay. He then proceeded to the house.

26. From our parked vehicle, I saw Mr. Ronnie Dayan open the gate. Dep. Dir. Ragos then handed the
black handbag containing bundles of one thousand peso bills to Mr. Dayan.

27. At that time, I also saw the then DOJ Sec. De Lima at the main door of the house. She was wearing
plain clothes which is commonly known referred to as "duster."
28. The house was elevated from the road and the fence was not high that is why I was able to clearly
see the person at the main door, that is, Sen. De Lima.

29. When Dep. Dir. Ragos and Mr. Dayan reached the main door, I saw Mr. Dayan hand the black
handbag to Sen. De Lima, which she received. The three of them then entered the house.

30. After about thirty (30) minutes, Dep. Dir. Ragos went out of the house. He no longer has the black
handbag with him.

31. We then drove to the BuCor Director's Quarters in Muntinlupa City. While cruising, Dep. Dir. Ragos
told me "Nior 'wag kang maingay kahit kanino at wala kang nakita ha," to which I replied "Sabi mo e. e di
wala akong nakita."

32. On the morning of 15 December 2012, Dep. Dir. Ragos again fetched me from my house and we
proceeded to the same house located at Laguna Bay comer Subic Bay Drive, South Bay Village,
Paranaque City.

33. That time, I saw a plastic bag in front of my feet. I asked Dep. Dir. Ragos "Quota na naman Sir?" Dep.
Dir. Ragos replied "Ano pa nga ba, 'tang ina sila lang meron. "134

Petitioner's co-accused, Rafael Ragos, recounted in his own Affidavit dated September 26, 2016 a similar
scenario:

8. One morning on the latter part of November 2012, I saw a black handbag containing a huge sum of
money on my bed inside the Director's Quarters of the BuCor. I looked inside the black handbag and saw
that it contains bundles of one thousand peso bills.

9. I then received a call asking me to deliver the black handbag to Mr. Ronnie Dayan. The caller said the
black handbag came from Peter Co and it contains "Limang Manoi<' which means Five Million Pesos
(Php5,000,000.00) as a "manoR' refers to One Million Pesos (Php 1,000,000.00) in the vernacular inside
the New Bilibid Prison.

10. As I personally know Mr. Dayan and knows that he stays in the house of the then DOJ Sec. Leila M. De
Lima located at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, I knew I had to
deliver the black handbag to Sen. De Lima at the said address.

11. Before proceeding to the house of Sen. De Lima at the above[-]mentioned address, I called Mr. Ablen
to accompany me in delivering the money. I told him we were going to do an important task.

12. Mr. Ablen agreed to accompany me so I fetched him from his house and we proceeded to the house
of Sen. De Lima at the above-mentioned address.

13. While we were in the car, I told Mr. Ablen that the important task we will do is deliver Five Million
Pesos (Php5,000,000.00) "Quota" to Sen. De Lima. I also told him that the money was in the black
handbag that was on the floor of the passenger seat (in front of him) and he could check it, to which Mr.
Ablen complied.
14. Before noon, we arrived at the house of Sen. De Lima located at Laguna Bay corner Subic Bay Drive,
South Bay Village, Paranaque City.

15. I parked my vehicle in front of the house. Both Mr. Ablen and I alighted from the vehicle but I went to
the gate alone carrying the black handbag containing the Five Million Pesos (Php5,000,000.00).

16. At the gate, Mr. Ronnie Dayan greeted me and opened the gate for me. I then handed the handbag
containing the money to Mr. Dayan.

17. We then proceeded to the main door of the house where Sen. De Lima was waiting for us. At the
main door, Mr. Dayan handed the black handbag to Sen. De Lima, who received the same. We then
entered the house.

18. About thirty minutes after, I went out of the house and proceeded to my quarters at the BuCor,
Muntinlupa City.

19. One morning in the middle part of December 2012, I received a call to again deliver the plastic bag
containing money from Peter Co to Mr. Ronnie Dayan. This time the money was packed in a plastic bag
left on my bed inside my quarters at the BuCor, Muntinlupa City. From the outside of the bag, I could
easily perceive that it contains money because the bag is translucent.

20. Just like before, I fetched Mr. Ablen from his house before proceeding to the house of Sen. De Lima
located at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, where I know I could
find Mr. Dayan.

21. In the car, Mr. Ablen asked me if we are going to deliver "quota." I answered yes.

22. We arrived at the house of Sen. De Lima at the above[-]mentioned address at noontime. I again
parked in front of the house.

23. I carried the plastic bag containing money to the house. At the gate, I was greeted by Mr. Ronnie
Dayan. At that point, I handed the bag to Mr. Dayan. He received the bag and we proceeded inside the
house.135

The source of the monies delivered to petitioner De Lima was expressly bared by several felons
incarcerated inside the NBP. Among them is Peter Co, who testified in the following manner:

6. Noong huling bahagi ng 2012, sinabi sa akin ni Hans Tanna nanghihingi ng kontribusyon sa mga
Chinese sa Maximum Security Compound ng NBP si dating DOJ Sec. De Lima para sa kanyang planong
pagtakbo sa senado sa 2013 Elections. Dalawang beses akong nagbigay ng tig-P5 Million para tugunan
ang hiling ni Sen. De Lima, na dating DOJ Secretary;

7. Binigay ko ang mga halagang ito kay Hans Tan para maibigay kay Sen. Leila De Lima na dating DOJ
Secretary. Sa parehong pagkakataon, sinabihan na lang ako ni Hans Tan na naibigay na ang pera kay
Ronnie Dayan na siyang tumatanggap ng pera para kay dating DOJ Sec. De Lima Sinabi rin ni Hans Tanna
ang nagdeliver ng pera ay si dating OIC ng BuCor na si Rafael Ragos.
8. Sa kabuuan, nakapagbigay ang mga Chinese sa loob ng Maximum ng PIO Million sa mga huling bahagi
ng taong 2012 kay dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado sa 2013
Elections. Ang mga perang ito ay mula sa pinagbentahan ng illegal na droga.136

All these, at least preliminarily, outline a case for illegal drug trading committed in conspiracy by the
petitioner and her co-accused. Thus, the Court cannot sustain the allegation that respondent judge
committed grave abuse of discretion in issuing the assailed Order for petitioner's arrest.

Petitioner would later confine herself to the contention that the prosecution's evidence is inadmissible,
provided as they were by petitioner's co-accused who are convicted felons and whose testimonies are
but hearsay evidence.

Nowhere in Ramos v. Sandiganbayan 137 - the case relied upon by petitioner - did this Court rule that
testimonies given by a co-accused are of no value. The Court simply held that said testimonies should be
received with great caution, but not that they would not be considered. The testimony of Ramos' co-
accused was, in fact, admitted in the cited case. Furthermore, this Court explicitly ruled in Estrada v.
Office of the Ombudsman138that hearsay evidence is admissible during preliminary investigation. The
Court held thusly:

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights and
obligations of parties.139 (Emphasis supplied.)

Verily, the admissibility of evidence,140 their evidentiary weight, probative value, and the credibility of
the witness are matters that are best left to be resolved in a full-blown trial,141 not during a preliminary
investigation where the technical rules of evidence are not applied142 nor at the stage of the
determination of probable cause for the issuance of a warrant of arrest. Thus, the better alternative is to
proceed to the conduct of trial on the merits for the petitioner and the prosecution to present their
respective evidence in support of their allegations.

With the foregoing disquisitions, the provisional reliefs prayed for, as a consequence, have to be
rejected.

WHEREFORE, the instant petition for prohibition and certiorari is DISMISSED for lack of merit. The
Regional Trial Court of Muntinlupa City, Branch 204 is ordered to proceed with dispatch with Criminal
Case N6.17-165.

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, Petitioner, v. COURT OF APPEALS
(SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., Respondents.

D E C I S I O N PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and immemorially acknowledged so to
be[.]"1ChanRoblesVirtualawlibrary

The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of the
Solicitor General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of public respondent the
Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private respondent Jejomar Erwin S.
Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order4 dated March 10, 20,15 of the Ombudsman in OMB-C-A-15-0058 to
0063 (preventive suspension order) preventively suspending him and several other public officers and
employees of the City Government of Makati, for six (6) months without pay; and (b) the Resolution5
dated March 20, 2015 of the CA, ordering the Ombudsman to comment on Binay, Jr.'s petition for
contempt6 in CA-G.R. SP No. 139504.

Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction8 (WPI) in
CA-G.R. SP No. 139453 which further enjoined the implementation of the preventive suspension order,
prompting the Ombudsman to file a supplemental petition9 on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso
VI before the Office of the Ombudsman against Binay, Jr. and other public officers and employees of the
City Government of Makati (Binay, Jr., et al), accusing them of Plunder11 and violation of Republic Act
No. (RA) 3019,12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in connection with the
five (5) phases of the procurement and construction of the Makati City Hall Parking Building (Makati
Parking Building).13

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators14 to conduct a fact-
finding investigation, submit an investigation report, and file the necessary complaint, if warranted (1st
Special Panel).15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a
complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six (6) administrative cases17
for Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service,
and six (6) criminal cases18 for violation of Section 3 (e) of RA 3019, Malversation of Public Funds, and
Falsification of Public Documents (OMB Cases).19

As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the
following procurement and construction phases of the Makati Parking Building project, committed
during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)20

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati Parking
Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently, executed the
corresponding contract22 on September 28, 2010,23 without the required publication and the lack of
architectural design,24 and approved the release of funds therefor in the following amounts as follows:
(1) P130,518,394.80 on December 15, 2010;25 (2) P134,470,659.64 on January 19, 2011;26 (3)
P92,775,202.27 on February 25, 2011;27 (4) P57,148,625.51 on March 28, 2011;28 (5) P40,908,750.61
on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011;30

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati Parking
Building project to Hilmarc's, and consequently, executed the corresponding contract32 on August 18,
2011,33 without the required publication and the lack of architectural design,34 and approved the
release of funds therefor in the following amounts as follows: (1) P182,325,538.97 on October 4,
2O11;35 (2) P173,132,606.91 on October 28,2011;36 (3) P80,408,735.20 on December 12, 2011;37 (4)
P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on October 1, 2012;39

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the Makati Parking
Building project to Hilmarc's, and consequently, executed the corresponding contract41 on September
13, 2012,42 without the required publication and the lack of architectural design,43 and approved the
release of the funds therefor in the amounts of P32,398,220.0544 and P30,582,629.3045 on December
20, 2012; and

Binay, Jr.'s Second Term (2013 to 2016)46

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of
the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking Building project in the
amount of P27,443,629.97;47 and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the contract48
with MANA Architecture & Interior Design Co. (MANA) for the design and architectural services covering
the Makati Parking Building project in the amount of P429,011.48.49

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd Special Panel).50
Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each of the OMB Cases,
requiring Binay, Jr., et al. to file their respective counter-affidavits.52

Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, upon the recommendation of
the 2nd Special Panel, issued on March 10, 2015, the subject preventive suspension order, placing Binay,
Jr., et al. under preventive suspension for not more than six (6) months without pay, during the
pendency of the OMB Cases.53 The Ombudsman ruled that the requisites for the preventive suspension
of a public officer are present,54 finding that: (a) the evidence of Binay, Jr., et al.'s guilt was strong given
that (1) the losing bidders and members of the Bids and Awards Committee of Makati City had attested
to the irregularities attending the Makati Parking Building project; (2) the documents on record negated
the publication of bids; and (3) the disbursement vouchers, checks, and official receipts showed the
release of funds; and (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if proven
to be true, warrant removal from public service under the Revised Rules on Administrative Cases in the
Civil Service (RRACCS), and (3) Binay, Jr., et al.'s respective positions give them access to public records
and allow them to influence possible witnesses; hence, their continued stay in office may prejudice the
investigation relative to the OMB Cases filed against them.55 Consequently, the Ombudsman directed
the Department of Interior and Local Government (DILG), through Secretary Manuel A. Roxas II
(Secretary Roxas), to immediately implement the preventive suspension order against Binay, Jr., et al.,
upon receipt of the same.56

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City Mayor,
and received by Maricon Ausan, a member of Binay, Jr.'s staff.57

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP No.
139453, seeking the nullification of the preventive suspension order, and praying for the issuance of a
TRO and/or WPI to enjoin its implementation.60Primarily, Binay, Jr. argued that he could not be held
administratively liable for any anomalous activity attending any of the five (5) phases of the Makati
Parking Building project since: (a) Phases I and II were undertaken before he was elected Mayor of
Makati in 2010; and (b) Phases III to V transpired during his first term and that his re-election as City
Mayor of Makati for a second term effectively condoned his administrative liability therefor, if any, thus
rendering the administrative cases against him moot and academic.61In any event, Binay, Jr. claimed that
the Ombudsman's preventive suspension order failed to show that the evidence of guilt presented
against him is strong, maintaining that he did not participate in any of the purported irregularities.62 In
support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear and unmistakable right to
hold public office, having won by landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges against him, his suspension
from office would undeservedly deprive the electorate of the services of the person they have
conscientiously chosen and voted into office.63

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the preventive
suspension order through the DILG National Capital Region - Regional Director, Renato L. Brion, CESO III
(Director Brion), who posted a copy thereof on the wall of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of entry to the Makati City Hall were closed. At around 9:47
a.m., Assistant City Prosecutor of Makati Billy C. Evangelista administered the oath of office on Makati
City Vice Mayor Romulo V. Peña, Jr. (Peña, Jr.) who thereupon assumed office as Acting Mayor.64

At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay, Jr.'s
prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day.67
Citing the case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent on its part to issue
a TRO in view of the extreme urgency of the matter and seriousness of the issues raised, considering that
if it were established that the acts subject of the administrative cases against Binay, Jr. were all
committed during his prior term, then, applying the condonation doctrine, Binay, Jr.'s re-election meant
that he can no longer be administratively charged.69 The CA then directed the Ombudsman to comment
on Binay, Jr.'s petition for certiorari .70

On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was being
restrained and that since the preventive suspension order had already been served and implemented,
there was no longer any act to restrain.72

On the same day, Binay, Jr. filed a petition for contempt,73 docketed as CA-G.R. SP No. 139504, accusing
Secretary Roxas, Director Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately
refusing to obey the CA, thereby allegedly impeding, obstructing, or degrading the administration of
justice.74 The Ombudsman and Department of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of the amended and supplemental petition
for contempt75 (petition for contempt) on March 19, 2015.76 Among others, Binay, Jr. accused the
Ombudsman and other respondents therein for willfully and maliciously ignoring the TRO issued by the
CA against the preventive suspension order.77

In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No. 139453 and
CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s petition for contempt,
directed the Ombudsman to file her comment thereto.79 The cases were set for hearing of oral
arguments on March 30 and 31, 2015.80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed
the present petition before this Court, assailing the CA's March 16, 2015 Resolution, which granted
Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015 Resolution directing her to
file a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504.81 The Ombudsman claims
that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section 14 of RA 6770,82
or "The Ombudsman Act of 1989," which states that no injunctive writ could be issued to delay the
Ombudsman's investigation unless there is prima facie evidence that the subject matter thereof is
outside the latter's jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay,
Jr.'s petition for contempt is illegal and improper, considering that the Ombudsman is an impeachable
officer, and therefore, cannot be subjected to contempt proceedings.84

In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or instrumentality of
government, including the Office of the Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in this case when said office issued the
preventive suspension order against him.86 Binay, Jr. posits that it was incumbent upon the Ombudsman
to1 have been apprised of the condonation doctrine as this would have weighed heavily in determining
whether there was strong evidence to warrant the issuance of the preventive suspension order.87 In this
relation, Binay, Jr. maintains that the CA correctly enjoined the implementation of the preventive
suspension order given his clear and unmistakable right to public office, and that it is clear that he could
not be held administratively liable for any of the charges against him since his subsequent re-election in
2013 operated as a condonation of any administrative offenses he may have committed during his
previous term.88 As regards the CA's order for the Ombudsman to comment on his petition for
contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable officer and, hence,
cannot be removed from office except by way of impeachment, an action for contempt imposes the
penalty of fine and imprisonment, without necessarily resulting in removal from office. Thus, the fact
that the Ombudsman is an impeachable officer should not deprive the CA of its inherent power to
punish contempt.89

Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were
held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of the
preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the final
relief prayed for, namely, the nullification of the preventive suspension order, in view of the condonation
doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati
condoned any administrative liability arising from anomalous activities relative to the Makati Parking
Building project from 2007 to 2013.93 In this regard, the CA added that, although there were acts which
were apparently committed by Binay, Jr. beyond his first term — namely, the alleged payments on July 3,
July 4, and July 24, 2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot
be held administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor
Garcia v. Mojica96 wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were merely effected
pursuant to contracts executed before said re-election.97 To this, the CA added that there was no
concrete evidence of Binay, Jr.'s participation for the alleged payments made on July 3, 4, and 24,
2013.98

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation doctrine is
irrelevant to the determination of whether the evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman also maintained that a reliance on the condonation
doctrine is a matter of defense, which should have been raised by Binay, Jr. before it during the
administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr. committed
acts subject of the OMB Complaint after his re-election in 2013.100

On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda.102 In compliance thereto, the
Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his Memorandum
the following day.104

Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on each
other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all within ten (10)
days from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each other's memoranda.106
Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of Comment,107 simply stating that
it was mutually agreed upon that the Office of the Ombudsman would file its Memorandum, consistent
with its desire to state its "institutional position."108 In her Memorandum and Comment to Binay, Jr.'s
Memorandum, the Ombudsman pleaded, among others, that this Court abandon the condonation
doctrine.109 In view of the foregoing, the case was deemed submitted for resolution.chanrobleslaw

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted before
this Court, the main issues to be resolved in seriatim are as follows:

Whether or not the present petition, and not motions for reconsideration of the assailed CA issuances in
CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the Ombudsman's plain, speedy, and adequate
remedy;cralawlawlibrary

Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP
No. 139453;cralawlawlibrary

Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining the
implementation of a preventive suspension order issued by the Ombudsman;cralawlawlibrary

Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the WPI in CA-G.R.
SP No. 139453 enjoining the implementation of the preventive suspension order against Binay, Jr. based
on the condonation doctrine; and

Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition for contempt
in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.chanrobleslaw

I.

A common requirement to both a petition for certiorari and a petition for prohibition taken under Rule
65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and adequate
remedy in the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.
xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its
or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts r with certainty and
praying that judgment be rendered commanding the respondent to desist from further proceedings in
the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice
may require.

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to
resorting to the extraordinary remedy of certiorari or prohibition since a motion for reconsideration may
still be considered as a plain, speedy, and adequate remedy in the ordinary course of law. The rationale
for the pre-requisite is to grant an opportunity for the lower court or agency to correct any actual or
perceived error attributed to it by the re-examination of the legal and factual circumstances of the
case.110

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually determine the propriety of
certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency, x
x x."111

In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a petition for
prohibition.112 These are: (a) where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c)
where there is an urgent necessity for the resolution of the question and any further delay would
prejudice the interests of the Government or of the petitioner or the subject matter of the action is
perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e)
where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is
improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where
the proceedings were ex parte or in which the petitioner had no opportunity to object; and (i) where the
issue raised is one purely of law or where public interest is involved.113

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the first time,
the question on the authority of the CA - and of this Court, for that matter - to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put to the
fore. This case tests the constitutional and statutory limits of the fundamental powers of key government
institutions - namely, the Office of the Ombudsman, the Legislature, and the Judiciary - and hence,
involves an issue of transcendental public importance that demands no less than a careful but
expeditious resolution. Also raised is the equally important issue on the propriety of the continuous
application of the condonation doctrine as invoked by a public officer who desires exculpation from
administrative liability. As such, the Ombudsman's direct resort to certiorari and prohibition before this
Court, notwithstanding her failure to move for the prior reconsideration of the assailed issuances in CA-
G.R. SP No. 139453 and CA-G.R. SP No. 139504 before the CA, is justified.chanrobleslaw

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless proper to
resolve the issue on the CA's lack of subject matter jurisdiction over the main petition for certiorari in
CA-G.R. SP No. 139453, in view of the well-established rule that a court's jurisdiction over the subject
matter may be raised at any stage of the proceedings. The rationale is that subject matter jurisdiction is
conferred by law, and the lack of it affects the very authority of the court to take cognizance of and to
render judgment on the action.115 Hence, it should be preliminarily determined if the CA indeed had
subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, as the same determines the
validity of all subsequent proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was
given the opportunity by this Court to be heard on this issue,116 as he, in fact, duly submitted his
opposition through his comment to the Ombudsman's Memorandum.117 That being said, the Court
perceives no reasonable objection against ruling on this issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition,
and her corollary prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,118 which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an investigation
being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the
subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme
Court119) from issuing a writ of injunction to delay an investigation being conducted by the Office of the
Ombudsman. Generally speaking, "[injunction is a judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional
remedy for and as an incident in the main action."120 Considering the textual qualifier "to delay," which
connotes a suspension of an action while the main case remains pending, the "writ of injunction"
mentioned in this paragraph could only refer to injunctions of the provisional kind, consistent with the
nature of a provisional injunctive relief.
The exception to the no injunction policy is when there is prima facie evidence that the subject matter of
the investigation is outside the office's jurisdiction. The Office of the Ombudsman has 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.121 Nonetheless, the Ombudsman retains the power to investigate any serious
misconduct in office allegedly committed by officials removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if warranted.122 Note that the Ombudsman has concurrent
jurisdiction over certain administrative cases which are within the jurisdiction of the regular courts or
administrative agencies, but has primary jurisdiction to investigate any act or omission of a public officer
or employee who is under the jurisdiction of the Sandiganbayan.123

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application
for remedy may be heard against the decision or findings of the Ombudsman, with the exception of the
Supreme Court on pure questions of law. This paragraph, which the Ombudsman particularly relies on in
arguing that the CA had no jurisdiction over the main CA-G.R. SP No. 139453 petition, as it is supposedly
this Court which has the sole jurisdiction to conduct a judicial review of its decisions or findings, is vague
for two (2) reasons: (1) it is unclear what the phrase "application for remedy" or the word "findings"
refers to; and (2) it does not specify what procedural remedy is solely allowable to this Court, save that
the same be taken only against a pure question of law. The task then, is to apply the relevant principles
of statutory construction to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought in the
words employed to express it, and that when found[,] it should be made to govern, x x x. If the words of
the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in
order to ascertain what was in the legislative mind at the time the law was enacted; what the
circumstances were, under which the action was taken; what evil, if any, was meant to be redressed; x x
x [a]nd where the law has contemporaneously been put into operation, and in doing so a construction
has necessarily been put upon it, this construction, especially if followed for some considerable period, is
entitled to great respect, as being very probably a true expression of the legislative purpose, and is not
lightly to be overruled, although it is not conclusive."124

As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body in
interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a statute means,
the meaning put to the provision during the legislative deliberations may be adopted,125 albeit not
controlling in the interpretation of the law.126

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second

paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the
matter of judicial review of her office's decisions or findings, is supposedly clear from the following
Senate deliberations:127

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase "petition for"
delete the word "review" and in lieu thereof, insert the word CERTIORARI. So that, review or appeal from
the decision of the Ombudsman would only be taken not on a petition for review, but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more difficult to reverse
the decision under review?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of facts of the
Ombudsman would be almost conclusive if supported by substantial evidence. Second, we would not
unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are exhaustive remedies
available to a respondent, the respondent himself has the right to exhaust the administrative remedies
available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme Court only
on certiorari ?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari available, is the respondent given the right to
exhaust his administrative remedies first before the Ombudsman can take the appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law principle
that before one can go to court, he must exhaust all administrative remedies xxx available to him before
he goes and seeks judicial review.

xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the method of appeal
from one of a petition for review to a petition for certiorari ?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to the effect that
the finding of facts of the Ombudsman is conclusive if supported by substantial evidence.
Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I concur, that
in an appeal by certiorari , the appeal is more difficult. Because in certiorari it is a matter of discretion on
the part of the court, whether to give due course to the petition or dismiss it outright. Is that not correct,
Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for certiorari , the issue is limited to whether or not the Ombudsman
here has acted without jurisdiction and has committed a grave abuse of discretion amounting to lack of
jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to make it
harder to have a judicial review, but should be limited only to cases that I have enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a petition
for review and a petition for certiorari ; because before, under the 1935 Constitution appeal from any
order, ruling or decision of the COMELEC shall be by means of review. But under the Constitution it is
now by certiorari and the Supreme Court said that by this change, the court exercising judicial review will
not inquire into the facts, into the evidence, because we will not go deeply by way of review into the
evidence on record but its authority will be limited to a determination of whether the administrative
agency acted without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I assume
that that is the purpose of this amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated, Mr.
President.

xxxx

The President. It is evident that there must be some final authority to render decisions. Should it be the
Ombudsman or should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and has to be
the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17.

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to introduce
an appropriate change during the period of Individual Amendments.
xxxx

The President. All right. Is there any objection to the amendment inserting the word CERTIORARI instead
of "review"? [Silence] Hearing none, the same is approved.128

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the provision
debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the exchange begins with
the suggestion of Senator Angara to delete the word "review" that comes after the phrase "petition for
review" and, in its stead, insert the word "certiorari" so that the "review or appeal from the decision of
the Ombudsman would not only be taken on a petition for review, but on certiorari" The ensuing
exchange between Senators Gonzales and Angara then dwells on the purpose of changing the method of
review from one of a petition for review to a petition for certiorari - that is, to make "the appeal x x x
more difficult." Ultimately, the amendment to the change in wording, from "petition for review" to
"petition for certiorari" was approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are
nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this
provision, particularly its second paragraph, does not indicate what specific procedural remedy one
should take in assailing a decision or finding of the Ombudsman; it only reveals that the remedy be taken
to this Court based on pure questions of law. More so, it was even commented upon during the oral
arguments of this case129 that there was no debate or clarification made on the current formulation of
the second paragraph of Section 14, RA 6770 per the available excerpts of the Senate deliberations. In
any case, at least for the above-cited deliberations, the Court finds no adequate support to sustain the
Ombudsman's entreaty that the CA had no subject matter jurisdiction over the main CA-G.R. SP No.
139453 petition.

On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually reflects the
approval of Senator Angara's suggested amendment, i.e., that the Ombudsman's decision or finding may
be assailed in a petition for certiorari to this Court (fourth paragraph), and further, his comment on the
conclusive nature of the factual findings of the Ombudsman, if supported by substantial evidence (third
paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be
filed within five (5) days after receipt of written notice and shall be entertained only on any of the
following grounds:chanRoblesvirtualLawlibrary

(1) New evidence has been discovered which materially affects the order, directive or
decision;cralawlawlibrary
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The
motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one
motion for reconsideration shall be entertained.ChanRoblesVirtualawlibrary

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive.
Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not
more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest of justice
may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a "petition for
certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is well-known that
under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the
said Rules. However, it should be discerned that the Ombudsman Act was passed way back in 1989130
and, hence, before the advent of the 1997 Rules of Civil Procedure.131 At that time, the governing 1964
Rules of Court,132 consistent with Section 27, RA 6770, referred to the appeal taken thereunder as a
petition for certiorari , thus possibly explaining the remedy's textual denomination, at least in the
provision's final approved version:

RULE 45

Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a judgment of
the Court of Appeals, by filing with the Supreme Court a petition for certiorari , within fifteen (15) days
from notice of judgment or of the denial of his motion for reconsideration filed in due time, and paying
at the same time, to the clerk of said court the corresponding docketing fee. The petition shall not be
acted upon without proof of service of a copy thereof to the Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning of the
provision.
To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any appeal or
application for remedy against the decision or findings of the Ombudsman, except the Supreme Court,
on pure question of law." ;cralawlawlibrary

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies
against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding of the
Ombudsman, and (b) "any application of remedy" (subject to the exception below) against the same. To
clarify, the phrase "application for remedy," being a generally worded provision, and being separated
from the term "appeal" by the disjunctive "or",133 refers to any remedy (whether taken mainly or
provisionally), except an appeal, following the maxim generalia verba sunt generaliter intelligenda:
general words are to be understood in a general sense.134 By the same principle, the word "findings,"
which is also separated from the word "decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the specific
procedural vehicle is not explicit from its text, it is fairly deducible that the second paragraph of Section
14, RA 6770 excepts, as the only allowable remedy against "the decision or findings of the Ombudsman,"
a Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme Court on "pure
questions of law," whether under the 1964 Rules of Court or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45

Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters involved,
the assignment of errors made in the court below, and the reasons relied on for the allowance of the
petition, and it should be accompanied with a true copy of the judgment sought to be reviewed,
together with twelve (12) copies of the record on appeal, if any, and of the petitioner's brief as filed in
the Court of Appeals. A verified statement of the date when notice of judgment and denial of the motion
for reconsideration, if any, were received shall accompany the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no record on
appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the whole record of the case.
(Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45

Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals,
the Regional Trial Court or other courts, whenever authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of law, which must be distinctly
set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition for
certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion that
defies traditional norms of procedure. It is basic procedural law that a Rule 65 petition is based on errors
of jurisdiction, and not errors of judgment to which the classifications of (a) questions of fact, (b)
questions of law, or (c) questions of mixed fact and law, relate to. In fact, there is no procedural rule,
whether in the old or new Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it is
also a statutory construction principle that the lawmaking body cannot be said to have intended the
establishment of conflicting and hostile systems on the same subject. Such a result would render
legislation a useless and idle ceremony, and subject the laws to uncertainty and unintelligibility.135
There should then be no confusion that the second paragraph of Section 14, RA 6770 refers to a Rule 45
appeal to this Court, and no other. In sum, the appropriate construction of this Ombudsman Act
provision is that all remedies against issuances of the Office of the Ombudsman are prohibited, except
the above-stated Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on remedies is
inappropriate since a Rule 45 appeal -which is within the sphere of the rules of procedure promulgated
by this Court - can only be taken against final decisions or orders of lower courts,136 and not against
"findings" of quasi-judicial agencies. As will be later elaborated upon, Congress cannot interfere with
matters of procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply to interlocutory
"findings" issued by the Ombudsman. More significantly, by confining the remedy to a Rule 45 appeal,
the provision takes away the remedy of certiorari, grounded on errors of jurisdiction, in denigration of
the judicial power constitutionally vested in courts. In this light, the second paragraph of Section 14, RA
6770 also increased this Court's appellate jurisdiction, without a showing, however, that it gave its
consent to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA 6770
(as above-cited), which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional since it
had the effect of increasing the appellate jurisdiction of the Court without its advice and concurrence in
violation of Section 30, Article VI of the 1987 Constitution.139 Moreover, this provision was found to be
inconsistent with Section 1, Rule 45 of the present 1997 Rules of Procedure which, as above-intimated,
applies only to a review of "judgments or final orders of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized by law;" and not of quasi-
judicial agencies, such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the
Court of Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and ruling in
Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A. No.
6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the Office of the
Ombudsman) on the availability of appeal before the Supreme Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian, we invalidated Section 27 of R.A. No. 6770 (and Section
7, Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it provided for appeal by
certiorari under Rule 45 from the decisions or orders of the Ombudsman in administrative cases. We
held that Section 27 of R.A. No. 6770 had the effect, not only of increasing the appellate jurisdiction of
this Court without its advice and concurrence in violation of Section 30, Article VI of the Constitution; it
was also inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a petition for
review on certiorari shall apply only to a review of "judgments or final orders of the Court of Appeals,
the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts authorized by
law." We pointedly said:chanRoblesvirtualLawlibrary

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases should be taken to the CA under the provisions of Rule
43.141 (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or findings" of
the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of Section 27, RA
6770142 - attempts to effectively increase the Supreme Court's appellate jurisdiction without its advice
and concurrence,143 it is therefore concluded that the former provision is also unconstitutional and
perforce, invalid. Contrary to the Ombudsman's posturing,144Fabian should squarely apply since the
above-stated Ombudsman Act provisions are in part materia in that they "cover the same specific or
particular subject matter,"145 that is, the manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of
the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, including all
subsequent proceedings relative thereto, as the Ombudsman herself has developed, the Court deems it
proper to resolve this issue ex mero motu (on its own motion146). This procedure, as was similarly
adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party
to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are not at liberty to overlook
or disregard its commands or countenance evasions thereof. When it is clear , that a statute transgresses
the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and
not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a court from
inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a
statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it
necessarily follows that it may inquire into the constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or that of the appellate court is involved in which case
it may be raised at any time or on the court's own motion. The Court ex mero motu may take cognizance
of lack of jurisdiction at any point in the case where that fact is developed. The court has a clearly
recognized right to determine its own jurisdiction in any proceeding.147 (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari in CA-G.R. SP No. 139453 was filed by Binay, Jr. before the
CA in order to nullify the preventive suspension order issued by the Ombudsman, an interlocutory
order,148 hence, unappealable.149

In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against
unappelable issuances150 of the Ombudsman should be filed before the CA, and not directly before this
Court:

In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order
issued by the Office of the Ombudsman was - similar to this case - assailed through a Rule 65 petition for
certiorari filed by the public officer before the CA, the Court held that "[t]here being a finding of grave
abuse of discretion on the part of the Ombudsman, it was certainly imperative for the CA to grant
incidental reliefs, as sanctioned by Section 1 of Rule 65."152

In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition for certiorari
assailing a final and unappealable order of the Office of the Ombudsman in an administrative case, the
Court remarked that "petitioner employed the correct mode of review in this case, i.e., a special civil
action for certiorari before the Court of Appeals."154 In this relation, it stated that while "a special civil
action for Certiorari is within the concurrent original jurisdiction of the Supreme Court and the Court of
Appeals, such petition should be initially filed with the Court of Appeals in observance of the doctrine of
hierarchy of courts." Further, the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was
ruled that the remedy against final and unappealable orders of the Office of the Ombudsman in an
administrative case was a Rule 65 petition to the CA. The same verdict was reached in Ruivivar156
(September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court, consistent
with existing jurisprudence, concludes that the CA has subject matter jurisdiction over the main CA-G.R.
SP No. 139453 petition. That being said, the Court now examines the objections of the Ombudsman, this
time against the CA's authority to issue the assailed TRO and WPI against the implementation of the
preventive suspension order, incidental to that main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no
jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive suspension
orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in conjunction with her office's
independence under the 1987 Constitution. She advances the idea that "[i]n order to further ensure [her
office's] independence, [RA 6770] likewise insulated it from judicial intervention,"157 particularly, "from
injunctive reliefs traditionally obtainable from the courts,"158 claiming that said writs may work "just as
effectively as direct harassment or political pressure would."159

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:

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)

In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical underpinnings
of the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as
the people's medium for airing grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance of their function as government critic.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate. Pursuant
to the ( 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as
amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be known as
Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any administrative
act of any administrative agency, including any government-owned or controlled corporation. When the
Office of the Tanodbayan was reorganized in 1979, the powers previously vested in the Special
Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan, file the corresponding
information, and control the prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional
fiat. Unlike in the 1973 Constitution, its independence was expressly and constitutionally guaranteed. Its
objectives are to enforce the state policy in Section 27, Article II and the standard of accountability in
public service under Section 1, Article XI of the 1987 Constitution. These provisions
read:chanRoblesvirtualLawlibrary

Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism
and justice, and lead modest lives.161 (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the office's mandate, and in correlation, the
impetus behind its independence:

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be
the "protector of the people" against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau. This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses , of the bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:chanRoblesvirtualLawlibrary

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.ChanRoblesVirtualawlibrary

As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions,
although not squarely falling under the broad powers granted [to] it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and the
Constitution.

The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad powers, the Constitution saw it fit to insulate the
Office of the Ombudsman from the pressures and influence of officialdom and partisan politics and from
fear of external reprisal by making it an "independent" office, x x x.

xxxx
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate , with its
daunting task of enforcing accountability of public officers.162 (Emphasis and underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's independence vis-a-
vis the independence of the other constitutional bodies. Pertinently, the Court observed:

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics - they do not owe their existence to any act of Congress, but
are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these 'independent' bodies be insulated from political pressure
to the extent that the absence of 'independence' would result in the impairment of their core
functions"163;cralawlawlibrary

(2) "[T]he 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 [of] the express
mandate of the Constitution, but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based";164 and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence.
In the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing
for a constitutionally-created Civil Service Commission, instead of one created by law, on the premise
that the effectivity of this body is dependent on its freedom from the tentacles of politics. In a similar
manner, the deliberations of the 1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards insulating the Commission on Audit from
political pressure."165

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the
Ombudsman, as well as that of the foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:

[T]he independent constitutional commissions have been consistently intended by the framers to be
independent from executive control or supervision or any form of political influence. At least insofar as
these bodies are concerned, jurisprudence is not scarce on how the "independence" granted to these
bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the
Constitutional Commissions, which have been characterized under the Constitution as "independent,"
are not under the control of the President, even if they discharge functions that are executive in nature.
The Court declared as unconstitutional the President's act of temporarily appointing the respondent in
that case as Acting Chairman of the [Commission on Elections] "however well-meaning" it might have
been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure
of the commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is
similar in degree and kind - to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican democracy
that are crucial to its existence and proper functioning.166 (Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[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," partially unconstitutional insofar as it subjected the
Deputy Ombudsman to the disciplinary authority of the President for violating the principle of
independence. Meanwhile, the validity of Section 8 (2), RA 6770 was maintained insofar as the Office of
the Special Prosecutor was concerned since said office was not considered to be constitutionally within
the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under
the Constitution.167

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless the
Constitution itself allows, or an amendment thereto is made;cralawlawlibrary

Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use
or dispose of [its] funds for purposes germane to [its] functions;168hence, its budget cannot be
strategically decreased by officials of the political branches of government so as to impair said functions;
and

Third: insulation from executive supervision and control, which means that those within the ranks of the
office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the Ombudsman from
political harassment and pressure, so as to free it from the "insidious tentacles of politics."169

That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate
the Ombudsman from judicial power constitutionally vested unto the courts. Courts are apolitical bodies,
which are ordained to act as impartial tribunals and apply even justice to all. Hence, the Ombudsman's
notion that it can be exempt from an incident of judicial power - that is, a provisional writ of injunction
against a preventive suspension order - clearly strays from the concept's rationale of insulating the office
from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the

Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it remains that
the first paragraph of Section 14, RA 6770 textually prohibits courts from extending provisional injunctive
relief to delay any investigation conducted by her office. Despite the usage of the general phrase "[n]o
writ of injunction shall be issued by any court," the Ombudsman herself concedes that the prohibition
does not cover the Supreme Court.170 As support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I would just
like to inquire for the record whether below the Supreme Court, it is understood that there is no
injunction policy against the Ombudsman by lower courts. Or, is it necessary to have a special paragraph
for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction against
the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest constitutional
bodies, is to subject this only to certiorari to the Supreme Court. I think an injunction from the Supreme
Court is, of course, in order but no lower courts should be allowed to interfere. We had a very bad
experience with even, let us say, the Forestry Code where no injunction is supposed to be issued against
the Department of Natural Resources. Injunctions are issued right and left by RTC judges all over the
country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987 Constitution,
acts of the Ombudsman, including interlocutory orders, are subject to the Supreme Court's power of
judicial review As a corollary, the Supreme Court may issue ancillary mjunctive writs or provisional
remedies in the exercise of its power of judicial review over matters pertaining to ongoing investigations
by the Office of the Ombudsman. Respecting the CA, however, the Ombudsman begs to differ.172
With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14, RA
6770 insofar as it prohibits all courts, except this Court, from issuing provisional writs of injunction to
enjoin an Ombudsman investigation. That the constitutionality of this provision is the lis mota of this
case has not been seriously disputed. In fact, the issue anent its constitutionality was properly raised and
presented during the course of these proceedings.173 More importantly, its resolution is clearly
necessary to the complete disposition of this case.174

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the
"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive,
the legislative[,] and the judicial departments of the government."176 The constitutional demarcation of
the three fundamental powers of government is more commonly known as the principle of separation of
powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the Court held that "there is a
violation of the separation of powers principle when one branch of government unduly encroaches on
the domain of another."178 In particular, "there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of another department's functions."179

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court
and all such lower courts:

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.

This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa Bilang (BP)
129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals,181 the Regional
Trial Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts183 were established. Later, through the passage of RA 1125,184 and Presidential Decree No. (PD)
1486,185 the Court of Tax Appeals, and the Sandiganbayan were respectively established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987 Constitution
empowers Congress to define, prescribe, and apportion the jurisdiction of all courts, except that it may
not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5186 of the same
Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.

x x x xChanRoblesVirtualawlibrary
Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an
action. In The Diocese ofBacolod v. Commission on Elections,187 subject matter jurisdiction was defined
as "the authority 'to hear and determine cases of the general class to which the proceedings in question
belong and is conferred by the sovereign authority which organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this
Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and the trial
courts, through the passage of BP 129, as amended.

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition for certiorari
in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrent with
the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme Court (under
Section 5, Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts'
jurisdiction over petitions for certiorari, the doctrine of hierarchy of courts should be followed. In People
v. Cuaresma,188 the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and
should also serve as a general determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of Appeals.189

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said
court may then exercise its jurisdiction acquired over that case, which is called judicial power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined
as the "totality of powers a court exercises when it assumes jurisdiction and hears and decides a
case."190 Under Section 1, Article VIII of the 1987 Constitution, it 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."

In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the 1987
Constitution:
The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents a
broadening of f judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because they are tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the judiciary.192

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired over a
particular case conforms to the limits and parameters of the rules of procedure duly promulgated by this
Court. In other words, procedure is the framework within which judicial power is exercised. In Manila
Railroad Co. v. Attorney-General,193 the Court elucidated that "[t]he power or authority of the court
over the subject matter existed and was fixed before procedure in a given cause began. Procedure does
not alter or change that power or authority; it simply directs the manner in which it shall be fully and
justly exercised. To be sure, in certain cases, if that power is not exercised in conformity with the
provisions of the procedural law, purely, the court attempting to exercise it loses the power to exercise it
legally. This does not mean that it loses jurisdiction of the subject matter."194

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the protection
and enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs
exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected to a power-
sharing scheme with Congress.198 As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying in one body
the Court's rule-making powers, in line with the Framers' vision of institutionalizing a "[s]tronger and
more independent judiciary."199
The records of the deliberations of the Constitutional Commission would show200 that the Framers
debated on whether or not the Court's rule-making powers should be shared with Congress. There was
an initial suggestion to insert the sentence "The National Assembly may repeal, alter, or supplement the
said rules with the advice and concurrence of the Supreme Court", right after the phrase "Promulgate
rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to
the underprivileged^" in the enumeration of powers of the Supreme Court. Later, Commissioner Felicitas
S. Aquino proposed to delete the former sentence and, instead, after the word "[underprivileged," place
a comma (,) to be followed by "the phrase with the concurrence of the National Assembly." Eventually, a
compromise formulation was reached wherein (a) the Committee members agreed to Commissioner
Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said
rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino
agreed to withdraw his proposal to add "the phrase with the concurrence of the National Assembly." The
changes were approved, thereby leading to the present lack of textual reference to any form of
Congressional participation in Section 5 (5), Article VIII, supra. The prevailing consideration was that
"both bodies, the Supreme Court and the Legislature, have their inherent powers."201

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning
pleading, practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also
r granted for the first time the power to disapprove rules of procedure of special courts and quasi-
judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal,
alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate
rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with
the Executive.202 (Emphasis and underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure, among
others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural remedies
needed for the reasonable exercise of every court's judicial power, the provisional remedies of
temporary restraining orders and writs of preliminary injunction were thus provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary measures
availed of during the pendency of the action. They are, by nature, ancillary because they are mere
incidents in and are dependent upon the result of the main action. It is well-settled that the sole object
of a temporary restraining order or a writ of preliminary injunction, whether prohibitory or mandatory, is
to preserve the status quo203 until the merits of the case can be heard. They are usually granted when it
is made to appear that there is a substantial controversy between the parties and one of them is
committing an act or threatening the immediate commission of an act that will cause irreparable injury
or destroy the status quo of the controversy before a full hearing can be had on the merits of the case. In
other words, they are preservative remedies for the protection of substantive rights or interests, and,
hence, not a cause of action in itself, but merely adjunct to a main suit.204 In a sense, they are
regulatory processes meant to prevent a case from being mooted by the interim acts of the parties.

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a
WPI. A preliminary injunction is defined under Section 1,205 Rule 58, while Section 3206 of the same
Rule enumerates the grounds for its issuance. Meanwhile, under Section 5207 thereof, a TRO may be
issued as a precursor to the issuance of a writ of preliminary injunction under certain procedural
parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to
issue all auxiliary writs, processes, and other means necessary to carry its acquired jurisdiction into
effect under Section 6, Rule 135 of the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, f processes and other means necessary to carry it into effect may be
employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction
is not specifically pointed out by law208 or by these rules, any suitable process or mode of proceeding
may be adopted which appears comfortable to the spirit of the said law or
rules.ChanRoblesVirtualawlibrary

In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or jurisdiction
of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction"210 over
"decisions, orders or resolutions of the RTCs in local tax cases originally decided or resolved by them in
the exercise of their original or appellate jurisdiction,"211 the Court ruled that said power "should
coexist with, and be a complement to, its appellate jurisdiction to review, by appeal, the final orders and
decisions of the RTC, in order to have complete supervision over the acts of the latter:"212

A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it
effectively, to make all orders that ; will preserve the subject of the action, and to give effect to the final
determination of the appeal. It carries with it the power to protect that jurisdiction and to make the
decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has authority to
control all auxiliary and incidental matters necessary to the efficient and proper exercise of that
jurisdiction. For this purpose, it may, when necessary, prohibit or restrain the performance of any act
which might interfere with the proper exercise of its rightful jurisdiction in cases pending before it.213
(Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are necessary to
enable it to act effectively within such jurisdiction. These should be regarded as powers which are
inherent in its jurisdiction and the court must possess them in order to enforce its rules of practice and
to suppress any abuses of its process and to t defeat any attempted thwarting of such process.
x x x x cralawlawlibrary

Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as
are necessary for the ordinary and efficient exercise of jurisdiction; or are essential to the existence,
dignity and functions of the courts, as well as to the due administration of justice; or are directly
appropriate, convenient and suitable to the execution of their granted powers; and include the power to
maintain the court's jurisdiction and render it effective in behalf of the litigants.214 (Emphases and
underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional
principle, articulated way back in the 1936 case of Angara, that "where a general power is conferred or
duty enjoined, every particular power necessary for the exercise of the one or the performance of the
other is also conferred."215

In the United States, the "inherent powers doctrine refers to the principle, by which the courts deal with
diverse matters over which they are thought to have intrinsic authority like procedural [rule-making] and
general judicial housekeeping. To justify the invocation or exercise of inherent powers, a court must
show that the powers are reasonably necessary to achieve the specific purpose for which the exercise is
sought. Inherent powers enable the judiciary to accomplish its constitutionally mandated functions."216

In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which prohibited
courts from enjoining the enforcement of a revocation order of an alcohol beverage license pending
appeal,218 the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably necessary for
the administration of justice within the scope of their jurisdiction. x x x [W]e said while considering the
rule making power and the judicial power to be one and the same that ". . . the grant of judicial power
[rule making power] to the courts by the constitution carries with it, as a necessary incident, the right to
make that power effective in the administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of

the court's inherent power, and to this end, stated that any attempt on the part of Congress to interfere
with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having obtained
jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent power
to do all things reasonably necessary to the administration of justice in the case before it. In the exercise
of this power, a court, when necessary in order to protect or preserve the subject matter of the litigation,
to protect its jurisdiction and to make its judgment effective, may grant or issue a temporary injunction
in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this particular instance the injunction, is exclusively
within the constitutional realm of the courts. As such, it is not within the purview of the legislature to
grant or deny the power nor is it within the purview of the legislature to shape or fashion circumstances
under which this inherently judicial power may be or may not be granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature to
interfere with or to inhibit the performance of constitutionally granted and inherently provided judicial
functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a cause
of action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably
necessary f to the administration of justice in the case before it. . ." This includes the inherent power to
issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislature's authority to provide a right to appeal in the statute does
not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right to
encroach upon the constitutionally granted powers of the judiciary. Once the administrative action has
ended and the right to appeal arises the legislature is void of any right to control a subsequent appellate
judicial proceeding. The judicial rules have come into play and have preempted the field.219 (Emphasis
supplied)

With these considerations in mind, the Court rules that when Congress passed the first paragraph of
Section 14, RA 6770 and, in so doing, took away from the courts their power to issue a TRO and/or WPI
to enjoin an investigation conducted by the Ombudsman, it encroached upon this Court's constitutional
rule-making authority. Clearly, these issuances, which are, by nature, provisional reliefs and auxiliary
writs created under the provisions of the Rules of Court, are matters of procedure which belong
exclusively within the province of this Court. Rule 58 of the Rules of Court did not create, define, and
regulate a right but merely prescribed the means of implementing an existing right220 since it only
provided for temporary reliefs to preserve the applicant's right in esse which is threatened to be violated
during the course of a pending litigation. In the case of Fabian,211 it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.ChanRoblesVirtualawlibrary

Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative power,
to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The National Power Corporation
from Payment of Filing/ Docket Fees;222 (b) Re: Petition for Recognition of the Exemption of the
Government Service Insurance System (GSIS) from Payment of Legal Fees;223 and (c) Baguio Market
Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes224 While these cases involved
legislative enactments exempting government owned and controlled corporations and cooperatives from
paying filing fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of procedure225
solely belongs to the Court, to the exclusion of the legislative and executive branches of government. On
this score, the Court described its authority to promulgate rules on pleading, practice, and procedure as
exclusive and "[o]ne of the safeguards of [its] institutional independence."226

That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of
the various courts under Section 2, Article VIII supra, as well as to create statutory courts under Section
1, Article VIII supra, does not result in an abnegation of the Court's own power to promulgate rules of
pleading, practice, and procedure under Section 5 (5), Article VIII supra. Albeit operatively interrelated,
these powers are nonetheless institutionally separate and distinct, each to be preserved under its own
sphere of authority. When Congress creates a court and delimits its jurisdiction, the procedure for which
its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first paragraph of
Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman misconceives,227 because
it does not define, prescribe, and apportion the subject matter jurisdiction of courts to act on certiorari
cases; the certiorari jurisdiction of courts, particularly the CA, stands under the relevant sections of BP
129 which were not shown to have been repealed. Instead, through this provision, Congress interfered
with a provisional remedy that was created by this Court under its duly promulgated rules of procedure,
which utility is both integral and inherent to every court's exercise of judicial power. Without the Court's
consent to the proscription, as may be manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there thus, stands to be a violation of the
separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions,
such as in the first paragraph of Section 14, RA 6770, does not only undermine the constitutional
allocation of powers; it also practically dilutes a court's ability to carry out its functions. This is so since a
particular case can easily be mooted by supervening events if no provisional injunctive relief is extended
while the court is hearing the same. Accordingly, the court's acquired jurisdiction, through which it
exercises its judicial power, is rendered nugatory. Indeed, the force of judicial power, especially under the
present Constitution, cannot be enervated due to a court's inability to regulate what occurs during a
proceeding's course. As earlier intimated, when jurisdiction over the subject matter is accorded by law
and has been acquired by a court, its exercise thereof should be undipped. To give true meaning to the
judicial power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of
procedure should therefore remain unabridged, this, even by statute. Truth be told, the policy against
provisional injunctive writs in whatever variant should only subsist under rules of procedure duly
promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) and
the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing
observations:
JUSTICE LEONEN:

Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:

58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the
rubric of what is called provisional remedies, our resident expert because Justice Peralta is not here so
Justice Bersamin for a while. So provisional remedy you have injunction, x x x.

xxxx

JUSTICE LEONEN:

Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if you
have a copy of the Constitution, can you please read that provision? Section 5, Article VIII the Judiciary
subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice
and procedure in all courts..."

JUSTICE LEONEN:

Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all courts.
This is the power, the competence, the jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:

The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already been
discussed with you by my other colleagues, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an
ordinary case?

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:

In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

In order to preserve the power of a court so that at the end of litigation, it will not be rendered moot
and academic, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

JUSTICE LEONEN.

What about bill [of] particulars, can Congress say, no Court shall have the power to issue the
supplemental pleading called the bill of t particular [s]? It cannot, because that's part of procedure...

ACTING SOLICITOR GENERAL HILBAY:

That is true.

JUSTICE LEONEN

...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:

So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was
created by Congress. In the absence of jurisdiction... (interrupted)

JUSTICE LEONEN:

No, writ of injunction does not attach to a court. In other words, when they create a special agrarian
court it has all procedures with it but it does not attach particularly to that particular court, is that not
correct?

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:

Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule of
procedure and the Rules of Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:

And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular
injunction in a court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that "[i]t is through the
Constitution that the fundamental powers of government are established, limited and defined, and by
which these powers are distributed among the several departments. The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer." It would then follow that laws that do not conform to the Constitution
shall be stricken down for being unconstitutional.230

However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious
to the policy considerations behind the first paragraph of Section 14, RA 6770, as well as other statutory
provisions of similar import. Thus, pending deliberation on whether or not to adopt the same, the Court,
under its sole prerogative and authority over all matters of procedure, deems it proper to declare as
ineffective the prohibition against courts other than the Supreme Court from issuing provisional
injunctive writs to enjoin investigations conducted by the Office of the Ombudsman, until it is adopted as
part of the rules of procedure through an administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph of
Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the authority to
issue the questioned injunctive writs enjoining the implementation of the preventive suspension order
against Binay, Jr. At the risk of belaboring the point, these issuances were merely ancillary to the exercise
of the CA's certiorari jurisdiction conferred to it under Section 9 (1), Chapter I of BP 129, as amended,
and which it had already acquired over the main CA-G.R. SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in
issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a persisting
objection to the validity of said injunctive writs. For its proper analysis, the Court first provides the
context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure. In Quimbo v.
Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its purpose is to
prevent the official to be suspended 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:

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.

Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary

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:chanRoblesvirtualLawlibrary

Section 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.232 (Emphases supplied)ChanRoblesVirtualawlibrary

The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt
is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the
service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman
but not more than six (6) months, without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case
the period of such delay shall not be counted in computing the period of suspension herein provided.
(Emphasis and underscoring supplied)
In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an
order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first requirement:chanRoblesvirtualLawlibrary

(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of
duty;cralawlawlibrary

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against
him.233ChanRoblesVirtualawlibrary

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's
non-compliance with the requisites provided in Section 24, RA 6770 was not the basis for the issuance of
the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the
case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were
established in the CA that the acts subject of the administrative complaint were indeed committed
during petitioner [Garcia's] prior term, then, following settled jurisprudence, he can no longer be
administratively charged."235 Thus, the Court, contemplating the application of the condonation
doctrine, among others, cautioned, in the said case, that "it would have been more prudent for [the
appellate court] to have, at the very least, on account of the extreme urgency of the matter and the
seriousness of the issues raised in the certiorari petition, issued a TRO x x x"236 during the pendency of
the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was based on
the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that Binay, Jr. has an
ostensible right to the final relief prayed for, i.e., the nullification of the preventive suspension order,
finding that the Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-
election in 2013 as City Mayor of Makati condoned any administrative liability arising from anomalous
activities relative to the Makati Parking Building project from 2007 to 2013.238 Moreover, the CA
observed that although there were acts which were apparently committed by Binay, Jr. beyond his first
term , i.e., the alleged payments on July 3, 4, and 24, 2013,239 corresponding to the services of
Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable therefor based on the cases
of Salalima v. Guingona, Jr.,240 and Mayor Garcia v. Mojica,241 wherein the condonation dobtrine was
applied by the Court although the payments were made after the official's election, reasoning that the
payments were merely effected pursuant to contracts executed before said re-election.242
The Ombudsman contends that it was inappropriate for the CA to have considered the condonation
doctrine since it was a matter of defense which should have been raised and passed upon by her office
during the administrative disciplinary proceedings.243 However, the Court agrees with the CA that it was
not precluded from considering the same given that it was material to the propriety of according
provisional injunctive relief in conformity with the ruling in Governor Garcia, Jr., which was the subsisting
jurisprudence at that time. Thus, since condonation was duly raised by Binay, Jr. in his petition in CA-G.R.
SP No. 139453,244 the CA did not err in passing upon the same. Note that although Binay, Jr. secondarily
argued that the evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453,245
it appears that the CA found that the application of the condonation doctrine was already sufficient to
enjoin the implementation of the preventive suspension order. Again, there is nothing aberrant with this
since, as remarked in the same case of Governor Garcia, Jr., if it was established that the acts subject of
the administrative complaint were indeed committed during Binay, Jr.'s prior term, then, following the
condonation doctrine, he can no longer be administratively charged. In other words, with condonation
having been invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, the CA deemed it
unnecessary to determine if the evidence of guilt against him was strong, at least for the purpose of
issuing the subject injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court
now proceeds to determine if the CA gravely abused its discretion in applying the condonation doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense."246

The condonation doctrine - which connotes this same sense of complete extinguishment of liability as
will be herein elaborated upon - is not based on statutory law. It is a jurisprudential creation that
originated from the 1959 case of Pascual v. Hon. Provincial Board ofNueva Ecija,247 (Pascual), which was
therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime in
November 1951, and was later re-elected to the same position in 1955. During his second term, or on
October 6, 1956, the Acting Provincial Governor filed administrative charges before the Provincial Board
of Nueva Ecija against him for grave abuse of authority and usurpation of judicial functions for acting on
a criminal complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense, Arturo Pascual
argued that he cannot be made liable for the acts charged against him since they were committed during
his previous term of office, and therefore, invalid grounds for disciplining him during his second term.
The Provincial Board, as well as the Court of First Instance of Nueva Ecija, later decided against Arturo
Pascual, and when the case reached this Court on appeal, it recognized that the controversy posed a
novel issue - that is, whether or not an elective official may be disciplined for a wrongful act committed
by him during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to American
authorities and "found that cases on the matter are conflicting due in part, probably, to differences in
statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the
question of whether the subsequent election or appointment condones the prior
misconduct."248Without going into the variables of these conflicting views and cases, it proceeded to
state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove one from
office because of misconduct during a prior term, to which we fully subscribe.249 (Emphasis and
underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation, which, in
the words of Pascual, theorizes that an official's re-election denies the right to remove him from office
due to a misconduct during a prior term. In fact, as pointed out during the oral arguments of this case, at
least seventeen (17) states in the US have abandoned the condonation doctrine.250 The Ombudsman
aptly cites several rulings of various US State courts, as well as literature published on the matter, to
demonstrate the fact that the doctrine is not uniformly applied across all state jurisdictions. Indeed, the
treatment is nuanced:

(1) For one, it has been widely recognized that the propriety of removing a public officer from his current
term or office for misconduct which he allegedly committed in a prior term of office is governed by the
language of the statute or constitutional provision applicable to the facts of a particular case (see In Re
Removal of Member of Council Coppola).251 As an example, a Texas statute, on the one hand, expressly
allows removal only for an act committed during a present term: "no officer shall be prosecuted or
removed from office for any act he may have committed prior to his election to office" (see State ex rel.
Rowlings v. Loomis).252 On the other hand, the Supreme Court of Oklahoma allows removal from office
for "acts of commission, omission, or neglect committed, done or omitted during a previous or preceding
term of office" (see State v. Bailey)253 Meanwhile, in some states where the removal statute is silent or
unclear, the case's resolution was contingent upon the interpretation of the phrase "in office." On one
end, the Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance
of malfeasance in office" and thereby declared that, in the absence of clear legislative language making,
the word "office" must be limited to the single term during which the offense charged against the public
officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga County)254 Similarly, the Common
Pleas Court of Allegheny County, Pennsylvania decided that the phrase "in office" in its state constitution
was a time limitation with regard to the grounds of removal, so that an officer could not be removed for
misbehaviour which occurred; prior to the taking of the office (see Commonwealth v. Rudman)255 The
opposite was construed in the Supreme Court of Louisiana which took the view that an officer's inability
to hold an office resulted from the commission of certain offenses, and at once rendered him unfit to
continue in office, adding the fact that the officer had been re-elected did not condone or purge the
offense (see State ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New York, Apellate
Division, Fourth Department, the court construed the words "in office" to refer not to a particular term
of office but to an entire tenure; it stated that the whole purpose of the legislature in enacting the
statute in question could easily be lost sight of, and the intent of the law-making body be thwarted, if an
unworthy official could not be removed during one term for misconduct for a previous one (Newman v.
Strobel).257

(2) For another, condonation depended on whether or not the public officer was a successor in the same
office for which he has been administratively charged. The "own-successor theory," which is recognized
in numerous States as an exception to condonation doctrine, is premised on the idea that each term of a
re-elected incumbent is not taken as separate and distinct, but rather, regarded as one continuous term
of office. Thus, infractions committed in a previous term are grounds for removal because a re-elected
incumbent has no prior term to speak of258 (see Attorney-General v. Tufts;259State v.
Welsh;260Hawkins v. Common Council of Grand Rapids;261Territory v. Sanches;262 and Tibbs v. City of
Atlanta).263

(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases
where the condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the public
officer charged with malversation of public funds was denied the defense of condonation by the
Supreme Court of Minnesota, observing that "the large sums of money illegally collected during the
previous years are still retained by him." In State ex rel. Beck v. Harvey265 the Supreme Court of Kansas
ruled that "there is no necessity" of applying the condonation doctrine since "the misconduct continued
in the present term of office[;] [thus] there was a duty upon defendant to restore this money on demand
of the county commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme
Court of Kansas held that "insofar as nondelivery and excessive prices are concerned, x x x there remains
a continuing duty on the part of the defendant to make restitution to the country x x x, this duty extends
into the present term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a
"weight of authority" in the US on the condonation doctrine. In fact, without any cogent exegesis to
show that Pascual had accounted for the numerous factors relevant to the debate on condonation, an
outright adoption of the doctrine in this jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-making.
"[They] are not relied upon as precedents, but as guides of interpretation."267 Therefore, the ultimate
analysis is on whether or not the condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal norms. Note that the doctrine of stare
decisis does not preclude this Court from revisiting existing doctrine. As adjudged in the case of Belgica,
the stare decisis rule should not operate when there are powerful countervailing considerations against
its application.268 In other words, stare decisis becomes an intractable rule only when circumstances
exist to preclude reversal of standing precedent.269 As the Ombudsman correctly points out,
jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic creature that develops and
devolves along with the society within which it thrives.270 In the words of a recent US Supreme Court
Decision, "[w]hat we can decide, we can undecide."271

In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal
landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution,
which dated provisions do not reflect the experience of the Filipino People under the 1973 and 1987
Constitutions. Therefore, the plain difference in setting, including, of course, the sheer impact of the
condonation doctrine on public accountability, calls for Pascual's judicious re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer was
elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause for
removal and this is especially true where the constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office, and disqualification from holding office for the
term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d.
401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d. 237;
Board of Com'rs of Kingfisher County vs. Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147
A. 67; State vs. Ward, 43 S.W. 2d. 217).

The underlying theory is that each term is separate from other terms x x x.272

Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting
the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the
extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184
Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.273 (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and character of
candidates, of their right to elect officers:

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —

The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with knowledge of his life and character,
and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for
the court, by reason of such faults or misconduct to practically overrule the will of the people.274
(Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation doctrine,
thereby quoting the above-stated passages from Pascual in verbatim.
(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the condonation
doctrine does not apply to a criminal case. It was explained that a criminal case is different from an
administrative case in that the former involves the People of the Philippines as a community, and is a
public wrong to the State at large; whereas, in the latter, only the populace of the constituency he serves
is affected. In addition, the Court noted that it is only the President who may pardon a criminal offense.

(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987 Constitution
wherein the condonation doctrine was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo
although his re-election merely supervened the pendency of, the proceedings.

(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the condonation
doctrine by stating that the same is justified by "sound public policy." According to the Court,
condonation prevented the elective official from being "hounded" by administrative cases filed by his
"political enemies" during a new term, for which he has to defend himself "to the detriment of public
service." Also, the Court mentioned that the administrative liability condoned by re-election covered the
execution of the contract and the incidents related therewith.279

(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the doctrine
was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged for his
involvement in an anomalous contract for the supply of asphalt for Cebu City, executed only four (4) days
before the upcoming elections. The Court ruled that notwithstanding the timing of the contract's
execution, the electorate is presumed to have known the petitioner's background and character,
including his past misconduct; hence, his subsequent re-election was deemed a condonation of his prior
transgressions. More importantly, the Court held that the determinative time element in applying the
condonation doctrine should be the time when the contract was perfected; this meant that as long as
the contract was entered into during a prior term, acts which were done to implement the same, even if
done during a succeeding term, do not negate the application of the condonation doctrine in favor of the
elective official.

(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein the Court
explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation rule
was applied even if the administrative complaint was not filed before the reelection of the public official,
and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not
distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was
committed during the prior term, the precise timing or period of which Garcia did not further
distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed
prior to the date of reelection.282 (Emphasis supplied)ChanRoblesVirtualawlibrary

The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation doctrine would
not apply to appointive officials since, as to them, there is no sovereign will to disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it
would have been prudent for the appellate court therein to have issued a temporary restraining order
against the implementation of a preventive suspension order issued by the Ombudsman in view of the
condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, and
Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions
directing the issuance of the assailed injunctive writs - would show that the basis for condonation under
the prevailing constitutional and statutory framework was never accounted for. What remains apparent
from the text of these cases is that the basis for condonation, as jurisprudential doctrine, was - and still
remains - the above-cited postulates of Pascual, which was lifted from rulings of US courts where
condonation was amply supported by their own state laws. With respect to its applicability to
administrative cases, the core premise of condonation - that is, an elective official's re-election cuts qff
the right to remove him for an administrative offense committed during a prior term - was adopted
hook, line, and sinker in our jurisprudence largely because the legality of that doctrine was never tested
against existing legal norms. As in the US, the propriety of condonation is - as it should be -dependent on
the legal foundation of the adjudicating jurisdiction. Hence, the Court undertakes an examination of our
current laws in order to determine if there is legal basis for the continued application of the doctrine of
condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the land;284 thus,
the unbending rule is that every statute should be read in light of the Constitution.285 Likewise, the
Constitution is a framework of a workable government; hence, its interpretation must take into account
the complexities, realities, and politics attendant to the operation of the political branches of
government.286

As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability, or of the nature
of public office being a public trust. The provision in the 1935 Constitution that comes closest in dealing
with public office is Section 2, Article II which states that "[t]he defense of the State is a prime duty of
government, and in the fulfillment of this duty all citizens may be required by law to render personal
military or civil service."287 Perhaps owing to the 1935 Constitution's silence on public accountability,
and considering the dearth of jurisprudential rulings on the matter, as well as the variance in the policy
considerations, there was no glaring objection confronting the Pascual Court in adopting the
condonation doctrine that originated from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a
significant change. The new charter introduced an entire article on accountability of public officers,
found in Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that "[p]ublic
office is a public trust." Accordingly, "[p]ublic officers and employees shall serve with the highest degree
of responsibility, integrity, loyalty and efficiency, and shall remain accountable to the people."
After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that "[t]he
State shall maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."288 Learning how unbridled power could corrupt public servants under the
regime of a dictator, the Framers put primacy on the integrity of the public service by declaring it as a
constitutional principle and a State policy. More significantly, the 1987 Constitution strengthened and
solidified what has been first proclaimed in the 1973 Constitution by commanding public officers to be
accountable to the people at all times:

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 and act with
patriotism and justice, and lead modest lives.ChanRoblesVirtualawlibrary

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the people's trust. The notion of a public trust connotes accountability x x
x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary

The same mandate is found in the Revised Administrative Code under the section of the Civil Service
Commission,290 and also, in the Code of Conduct and Ethical Standards for Public Officials and
Employees.291

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective local
official from office are stated in Section 60 of Republic Act No. 7160,292 otherwise known as the "Local
Government Code of 1991" (LGC), which was approved on October 10 1991, and took effect on January
1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or
removed from office on any of the r following grounds:chanRoblesvirtualLawlibrary

(a) Disloyalty to the Republic of the Philippines;cralawlawlibrary

(b) Culpable violation of the Constitution;cralawlawlibrary

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;cralawlawlibrary

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor;cralawlawlibrary

(e) Abuse of authority;cralawlawlibrary

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the
sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang
barangay;cralawlawlibrary

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of
another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by order of the
proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from office as a
result of an administrative case shall be disqualified from running for any elective local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from service
carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits,
perpetual disqualification from holding public office, and bar from taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as he meets
the qualifications required for the office. Note, however, that the provision only pertains to the duration
of the penalty and its effect on the official's candidacy. Nothing therein states that the administrative
liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision. - x x x.

xxxx
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court to the
conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term of
office, or even another elective post. Election is not a mode of condoning an administrative offense, and
there is simply no constitutional or statutory basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any administrative liability arising from an offense
done during a prior term. In this jurisdiction, liability arising from administrative offenses may be
condoned bv the President in light of Section 19, Article VII of the 1987 Constitution which was
interpreted in Llamas v. Orbos293 to apply to administrative offenses:

The Constitution does not distinguish between which cases executive clemency may be exercised by the
President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may
be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following
petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the
same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President cannot grant
executive clemency in administrative cases. It is Our considered view that if the President can grant
reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more
reason can she grant executive clemency in administrative cases, which are clearly less serious than
criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated therein
cannot anymore be invoked against an elective local official to hold him administratively liable once he is
re-elected to office. In fact, Section 40 (b) of the LGC precludes condonation since in the first place, an
elective local official who is meted with the penalty of removal could not be re-elected to an elective
local position due to a direct disqualification from running for such post. In similar regard, Section 52 (a)
of the RRACCS imposes a penalty of perpetual disqualification from holding public office as an accessory
to the penalty of dismissal from service.

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the
doctrine of condonation of administrative liability was supported by either a constitutional or statutory
provision stating, in effect, that an officer cannot be removed by a misconduct committed during a
previous term,294 or that the disqualification to hold the office does not extend beyond the term in
which the official's delinquency occurred.295 In one case,296 the absence of a provision against the re-
election of an officer removed - unlike Section 40 (b) of the LGC-was the justification behind
condonation. In another case,297 it was deemed that condonation through re-election was a policy
under their constitution - which adoption in this jurisdiction runs counter to our present Constitution's
requirements on public accountability. There was even one case where the doctrine of condonation was
not adjudicated upon but only invoked by a party as a ground;298 while in another case, which was not
reported in full in the official series, the crux of the disposition was that the evidence of a prior
irregularity in no way pertained to the charge at issue and therefore, was deemed to be
incompetent.299 Hence, owing to either their variance or inapplicability, none of these cases can be
used as basis for the continued adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the
unexpired portion of the elective local official's prior term, and likewise allows said official to still run for
re-election This treatment is similar to People ex rel Bagshaw v. Thompson300 and Montgomery v.
Novell301 both cited in Pascual, wherein it was ruled that an officer cannot be suspended for a
misconduct committed during a prior term. However, as previously stated, nothing in Section 66 (b)
states that the elective local official's administrative liability is extinguished by the fact of re-election.
Thus, at all events, no legal provision actually supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts would be
depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an individual to
hold a public office. In this jurisdiction, there is, again, no legal basis to conclude that election
automatically implies condonation. Neither is there any legal basis to say that every democratic and
republican state has an inherent regime of condonation. If condonation of an elective official's
administrative liability would perhaps, be allowed in this jurisdiction, then the same should have been
provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present,
by no means has it been shown that such a law, whether in a constitutional or statutory provision, exists.
Therefore, inferring from this manifest absence, it cannot be said that the electorate's will has been
abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed
to have done so with knowledge of his life and character, and that they disregarded or forgave his faults
or misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists in any
statute or procedural rule.302 Besides, it is contrary to human experience that the electorate would have
full knowledge of a public official's misdeeds. The Ombudsman correctly points out the reality that most
corrupt acts by public officers are shrouded in secrecy, and concealed from the public. Misconduct
committed by an elective official is easily covered up, and is almost always unknown to the electorate
when they cast their votes.303 At a conceptual level, condonation presupposes that the condoner has
actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey Supreme Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done in a
preceding term of office are reasoned out on the theory of condonation. We cannot subscribe to that
theory because condonation, implying as it does forgiveness, connotes knowledge and in the absence of
knowledge there can be no condonation. One cannot forgive something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings
way back in 1959 and thus, out of touch from - and now rendered obsolete by - the current legal regime.
In consequence, it is high time for this Court to abandon the condonation doctrine that originated from
Pascual, and affirmed in the cases following the same, such as Aguinaldo, Salalima, Mayor Garcia, and
Governor Garcia, Jr. which were all relied upon by the CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine should be
prospective in application for the reason that judicial decisions applying or interpreting the laws or the
Constitution, until reversed, shall form part of the legal system of the Philippines.305 Unto this Court
devolves the sole authority to interpret what the Constitution means, and all persons are bound to
follow its interpretation. As explained in De Castro v. Judicial Bar Council.306

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.307

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance thereupon
should be respected. The landmark case on this matter is People v. Jabinal,308 wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on
the faith thereof.

Later, in Spouses Benzonan v. CA,309 it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of
the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall
have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim
lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy
to perceive. The retroactive application of a law usually divests rights that have already become vested
or impairs the obligations of contract and hence, is unconstitutional.310ChanRoblesVirtualawlibrary

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal
anchorage was able to endure in our jurisprudence for a considerable length of time, this Court, under a
new membership, takes up the cudgels and now abandons the condonation doctrine.

E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.311 It has also been held that "grave abuse of discretion arises when a lower court or tribunal
patently violates the Constitution, the law or existing jurisprudence."312

As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed
injunctive writs were all hinged on cases enunciating the condonation doctrine. To recount, the March
16, 2015 Resolution directing the issuance of the subject TRO was based on the case of Governor Garcia,
Jr., while the April 6, 2015 Resolution directing the issuance of the subject WPI was based on the cases of
Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled
precedents on the condonation doctrine, which at that time, unwittingly remained "good law," it cannot
be concluded that the CA committed a grave abuse of discretion based on its legal attribution above.
Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition for
certiorari in CA-G.R. SP No. 139453 on the merits. However, considering that the Ombudsman, on
October 9, 2015, had already found Binay, Jr. administratively liable and imposed upon him the penalty
of dismissal, which carries the accessory penalty of perpetual disqualification from holding public office,
for the present administrative charges against him, the said CA petition appears to have been
mooted.313 As initially intimated, the preventive suspension order is only an ancillary issuance that, at
its core, serves the purpose of assisting the Office of the Ombudsman in its investigation. It therefore has
no more purpose - and perforce, dissolves - upon the termination of the office's process of investigation
in the instant administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the
validity of the preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained in Belgica, '"the
moot and academic principle' is not a magical formula that can automatically dissuade the Court in
resolving a case. The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review."314 All of these scenarios obtain in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not
to abandon the condonation doctrine now that its infirmities have become apparent. As extensively
discussed, the continued application of the condonation doctrine is simply impermissible under the
auspices of the present Constitution which explicitly mandates that public office is a public trust and that
public officials shall be accountable to the people at all times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of
elective officials to escape administrative liability. It is the first time that the legal intricacies of this
doctrine have been brought to light; thus, this is a situation of exceptional character which this Court
must ultimately resolve. Further, since the doctrine has served as a perennial obstacle against exacting
public accountability from the multitude of elective local officials throughout the years, it is indubitable
that paramount public interest is involved.

Third, the issue on the validity of the condonation doctrine clearly requires the formulation of controlling
principles to guide the bench, the bar, and the public. The issue does not only involve an in-depth
exegesis of administrative law principles, but also puts to the forefront of legal discourse the potency of
the accountability provisions of the 1987 Constitution. The Court owes it to the bench, the bar, and the
public to explain how this controversial doctrine came about, and now, its reasons for abandoning the
same in view of its relevance on the parameters of public office.

And fourth, the defense of condonation has been consistently invoked by elective local officials against
the administrative charges filed against them. To provide a sample size, the Ombudsman has informed
the Court that "for the period of July 2013 to December 2014 alone, 85 cases from the Luzon Office and
24 cases from the Central Office were dismissed on the ground of condonation. Thus, in just one and a
half years, over a hundred cases of alleged misconduct - involving infractions such as dishonesty,
oppression, gross neglect of duty and grave misconduct - were placed beyond the reach of the
Ombudsman's investigatory and prosecutorial powers."315 Evidently, this fortifies the finding that the
case is capable of repetition and must therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to uphold
and defend the Constitution, revoke it notwithstanding supervening events that render the subject of
discussion moot.chanrobleslaw

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue
on whether or not the CA's Resolution316 dated March 20, 2015 directing the Ombudsman to comment
on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the
subject of a charge for indirect contempt317 because this action is criminal in nature and the penalty
therefor would result in her effective removal from office.318 However, a reading of the aforesaid March
20, 2015 Resolution does not show that she has already been subjected to contempt proceedings. This
issuance, in? fact, makes it clear that notwithstanding the directive for the Ombudsman to comment, the
CA has not necessarily given due course to Binay, Jr.'s contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita Carpio
Morales, in her capacity as the Ombudsman, and the Department of Interior and Local Government] are
hereby DIRECTED to file Comment on the Petition/Amended and Supplemental Petition for Contempt
(CA-G.R. SP No. 139504) within an inextendible period of three (3) days from receipt hereof. (Emphasis
and underscoring supplied)ChanRoblesVirtualawlibrary

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may
properly raise her objections to the contempt proceedings by virtue of her being an impeachable officer,
the CA, in the exercise of its sound judicial discretion, may still opt not to give due course to Binay, Jr.'s
contempt petition and accordingly, dismiss the same. Sjmply put, absent any indication that the
contempt petition has been given due course by the CA, it would then be premature for this Court to
rule on the issue. The submission of the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court resolves as
follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while
the policy against the issuance of provisional injunctive writs by courts other than the Supreme Court to
enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court adopts the same as part of the rules of procedure
through an administrative circular duly issued therefor;cralawlawlibrary

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;cralawlawlibrary

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.)
petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the Ombudsman's supervening
issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr. administratively liable in the six (6)
administrative complamts, docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-
C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is DIRECTED to
resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost dispatch.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez, Reyes, and Leonen, JJ., concur.

Velasco, Jr., Peralta, and Jardeleza, JJ., no part.

Brion, J., no part/ on leave.

Mendoza, J., on leave.

Bersamin, J., please see my concurring & dissenting opinion.

Endnotes:

1 "The Works of Jeremy Bentham, published under the superintendence of his executor, John Bowring."
Vol. II, Chapter IV, p. 423, London (1843).
2 With urgent prayer for the issuance of a TRO and/or a WPI. Rollo, Vol. 1, pp. 6-36.

3 Id. at 43-47. Penned by Associate Justice Jose C. Reyes, Jr. with Associate Justices Francisco P. Acosta
and Eduardo B. Peralta, Jr. concurring.

4 Id. at 53-65. Issued by petitioner Ombudsman Conchita Carpio Morales.

5 Id. at 50-51.

6 Dated March 18, 2015. Id. at 362-373.

7 Id. at 613-627.

8 Id. at 629-630. Signed by Division Clerk, of Court Miriam Alfonso Bautista.

9 For certiorari and prohibition with prayer for the issuance of a TRO and/or WPI. Id. at 606-611

10 See rollo, Vol. II, pp. 749-757.

11 RA 7080, entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER" (approved on Julv
12, 1991).

12 Approved on August 17, 1960.

13Rollo, Vol. II, pp. 647.

14 Id.

15 Through Ombudsman Office Order No. 546, which was later on amended through Officer Order No.
546-A dated November 18, 2014. Id. at 758-759.

16 Dated March 3, 2015. Rollo, Vol. I, pp. 66-100.

17 Docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-

15-0062, and OMB-C-A-15-0063. See id. at 53-58.

18 Docketed as OMB-C-C-15-0059, OMB-C-C-15-0060, OMB-C-C-15-0061, OMB-C-C-15-0062, OMB-C-C-

15-0063, and OMB-C-C-15-0064. See id. at 66. See also rollo, Vol. II, p. 674.

19 As for Binay, Jr., only four (4) administrative cases and four (4) criminal cases were filed against him,
particularly: (a) for administrative cases (1) OMB-C-A-15-0058, (2) OMB-C-A-15-0061, (3) OMB-C- A-15-
0062, and (4) OMB-C-A-15-0063; and (b) for criminal cases (1) OMB-C-C-15-0059, for violation of Section
3 (e) of RA 3019 and Malversation of Public Funds involving the design, architectural, and engineering
services of MANA Architecture & Interior Design Co. covering the Makati Parking Building project, (2)
OMB-C-C-15-0062, for violation of Section 3 (e) of RA 3019 and two (2) counts of Falsification of Public
Documents under Article 171 of the Revised Penal Code in connection with Phase III of the Makati
Parking Building project involving Hilmarc's, (3) OMB-C-C-15-0063, for violation of Section 3 (e) of RA
3019 and two (2) counts of Falsification of Public Documents in connection with Phase IV of the Makati
Parking Building project involving Hilmarc's, and (4) OMB- C-C-1 5-0064, for violation of Section 3 (e) of
RA 3019 and two (2) counts of Falsification of Public Documents in connection with Phase V of the
Makati Parking Building project involving Hilmarc's. (Rollo, Vol. I, p. 12; rollo, Vol. II, p. 647.)

20 Specific period covered by his first term is from Noon of June 30, 2010 to Noon of June 30, 2013.

21Rollo, Vol. I, p. 247.

22 Id. at 248-250.

23 The original contract amount was P599,395,613.34. Due to a change order, this was later increased to
P599,994,021.05. See Disbursement Voucher; id. at 284.

24 Id. at 86-87.

25 See Disbursement Voucher for 26% completion of Phase III; id. at 270.

26 See Disbursement Voucher for 52.49% completion of Phase III; id. at 273.

27 See Disbursement Voucher for 69% completion of Phase III; id. at 276.

28 See Disbursement Voucher for 79.17% completion of Phase III; id. at 278.

29 See Disbursement Voucher for 86.45% completion of Phase III; id. at 281.

30 See Disbursement Voucher for 100% completion of Phase III; id. at 284.

31 Id. at 312.

32 Id. at 290-292.

33 The original contract amount was f 649,275,681.73. This was later increased to f 649,934,440.96. See
Disbursement Voucher; id. at 320.
34 Id. at 88.

35 See Disbursement Voucher for 33.53% completion of Phase IV; id. at 315.

36 See Disbursement Voucher for 63.73% completion of Phase IV; id. at 316.

37 See Disbursement Voucher for 76.94% completion of Phase IV; id. at 317.

38 See Disbursement Voucher for 87.27% completion of Phase IV; id. at 318.

39 See Disbursement Voucher for 100% completion of Phase IV; id. at 320.

40 Id. at 334.

41 Id. at 323-325.

42 The original contract amount was P141,649,366.00. Due to a change order, this was later increased to
P143,806,161.00. See Disbursement Voucher; id. at 349

43 Id. at 91.

44 See Disbursement Voucher for 27.31% completion of Phase V; id. at 340. See also id. at 337-339.

45 See Disbursement Voucher for 52.76% completion of Phase V; id. at 344. See also id. at 341-343.

46 Specific period covered by his second term is from Noon of June 30, 2013 to Noon of June 30, 2016.
47 See Disbursement Voucher for 100% completion of Phase V; rollo, p. 349. See also id. at 346-349.

48 For the contract amount of PI 1,974,900.00. Dated November 28,2007. Id. at 108-113.

49 See Disbursement Voucher for 100% completion of the MANA contract; id. at 126.

50 Through Ombudsman Office Order No. 178, which was later on amended through Office Order No.
180 dated March 9, 2015. See rollo, Vol. II, pp. 647-648.

52 Rollo, Vol. II, p. 648.

51 Not attached to the rollos.

53 See rollo, Vol. I, pp. 62 and 480.

54 Id. at 61.

55 Id.

56 See id. at 63 and 480. See also Ombudsman's Indorsement letter dated March 11, 2015; id. at 351.

57 See Personal Delivery Receipt; id. at 350. See also id. at 12.

58 See Binay, Jr.'s Comment/Opposition dated April 6, 2005; id. at 481. See also Binay, Jr.'s Memorandum
dated May 21, 2015; rollo, Vol. 11, p. 806. The Ombudsman, however, claims that the said petition was
filed on March 12, 2015; see rollo, Vol II p 648
59Rollo, Vol. I, pp. 403-427.

60 See id. at 425-426.

61 Id. at 404.

62 Id. at 404-405.

63 Id. at 424-425.

64 See id. at 12-13. See also Director Brion's Memorandum dated March 16, 2015; id. at 352-353.

65 Id. at 43-47.

66 Id. at 47.

67 Id. at 13.

68 604 Phil. 677 (2009).

69Rollo, Vol. I, p. 46.

70 Which directive the Ombudsman complied with on March 30, 2015 (rollo, Vol. II, p. 650). See also
rollo, Vol. I, p. 47.
71 See Manifestation dated March 17, 2015; rollo, Vol. I, pp. 357-360.

72 Id. at 358.

73 Not attached to the rollos.

74 Rollo, Vol. I, p. 14; rollo, Vol. II, p. 649.

75 Dated March 18, 2015. Rollo, Vol. I, pp. 362-373.

76 Id.

77 See id. at 370.

78 Id. at 50-51.

79 Which the Ombudsman complied with on March 26, 2015 (rollo, Vol. II, p. 650). See also rollo, Vol I, p.
50.

80 The CA heard oral arguments with respect to Binay, Jr.'s application for a WP1 on March 30, 2015. On
the other hand, the CA heard oral arguments with respect to Binay, Jr.'s petition for contempt on March
31, 2015 (see rollo, Vol. II, p. 650). See also rollo, Vol. I, p. 51

81Rollo, Vol. II, p. 650.

82 Entitled "AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES," approved on November 17 1989.
85 See rollo, Vol. I, pp. 17-21.

84 See id. at 21-24.

85 See Comment/Opposition dated April 6, 2015; id. at 477-522.

86 See id. at 478-479.

87 See id. at 492-493.

88 See id. at 497-505.

89 Id. at 511.

90 Id. at 613-627.

91 Id. at 615.

92 G.R. No. 94115, August 21, 1992, 212 SCRA 768.

93Rollo, Vol. I, p. 619.

94 All of which pertains to the payment of Phase V. See id. at 346-349. See also id. at 623.
95 326 Phil. 847(1996).

96 372 Phil. 892(1999).

97 See rollo, Vol. I, pp. 619-620.

98 See id. at 623.

99 Id. at 606-611.

100 Id. at 609.

101 See Court Resolutions dated April 7, 2015 (id. at 524-525) and April 14, 2015 (id. at 634-638).

102 See April 21, 2015; id. at 639-640

103 Rollo, Vol. 11, pp. 646-745.

104 Dated May 21,2015. Id. at 803-865.

105 Id. at 951-952.

106 See Ombudsman's Comment to Binay, Jr.'s Memorandum dated July 3, 2015; id. at 1109-1161. See
also Binay, Jr.'s Comment (to Petitioners' Memorandum) dated July 3, 2015; id. at 2203-2240.

107 Id. at 959-960.

108Id. at 959. See also Manifestation dated May 14, 2015; id. at 641.

109See discussions on the condonation doctrine in the Ombudsman's Memorandum, rollo, Vol. II, pp.
708-733 and in the Ombudsman's Comment to Binay, Jr.'s Memorandum, rollo, Vol. II pp 1144-
1149,1153-1155, and 1158-1159.

110 See Republic v. Bayao, G.R. No. 179492, June 5, 2013, 697 SCRA 313, 322-323.

111 See Bordomeo v. CA, G.R. No. 161596, February 20, 2013, 691 SCRA 269, 286, citing Heirs of Spouses
Reterta v. Spouses Mores, 671 Phil. 346, 359 (2011).

112 See AFP Mutual Benefit Association, Inc. v. Solid Homes, Inc., 658 Phil. 68, 19 (2011); citing Diamond
Builders Conglomeration v. Country Bankers Insurance Corporation, 564 Phil 756 769-770 (2007).

113Republic v. Bayao, supra note 110, at 323, citing Siok Ping Tang v. Subic Bay Distribution Inc., 653 Phil.
124, 136-137(2010).

114 See Ombudsman's Memorandum dated May 14, 2015; rollo, Vol. II, pp. 661-669.

115 Francel Realty Corporation v. Sycip, 506 Phil. 407,415 (2005).

116 See Court Resolution dated June 16, 2015; rollo, Vol. II, pp. 951-952.

117 Id. at 2203-2240.

118 See id. at 662-666 and 98.

119 As the Ombudsman herself concedes; see Main Petition, rollo, Vol. 1, pp. 17-18; See also
Ombudsman's Memorandum, rollo, Vol. II, pp. 661-666.

120 Bacolod City Water District v. Labayen, 487 Phil. 335, 346 (2004).

121 Section 21, RA 6770 states:chanRoblesvirtualLawlibrary

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of Jthe 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.

122 Section 22, RA 6770 states:chanRoblesvirtualLawlibrary

Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power to investigate any
serious misconduct in office allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a private person, the
Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation
and proceed against such private person as the evidence may warrant. The officer or employee and the
private person shall be tried jointly and shall be subject to the same penalties and liabilities.

123 See Alejandro v. Office of the Ombudsman Fact-Finding and Intelligence Bureau, G.R. No. 173121,
April 3, 2013, 695 SCRA 35, 44-46. t

124Molina v. Rafferty, 38 Phil. 167, 169 (1918).

125 See National Police Commission v. De Guzman, Jr., G.R. No. 106724, February 9, 1994, 229 SCRA,
801-807.

126 See Espino v. Cleofe, 152 Phil. 80, 87 (1973).

127 Records of the Senate, Vol. II, No. 6, August 2, 1998, pp. 174-187. As cited also in Ombudsman's
Memorandum, rollo, Vol. II, p. 662.

128 Records of the Senate, Vol. II, No. 10, August 9, 1988, pp. 282-286 (full names of the senators in
brackets supplied). See also Ombudsman's Memorandum, rollo, Vol. II, pp. 662-665, emphases and
underscoring in the original.

129 See Associate Justice Francis H. Jardeleza's interpellation; TSN of the Oral Arguments April 14 2015,
p. 7.

130 Approved on November 17, 1989.

131 Effective July 1, 1997.

132 Effective January 1, 1964.

133 "The word 'or' x x x is a disjunctive term signifying disassociation and independence of one thing
from the other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily
implies, as a disjunctive word." (Dayao v. Commission on Elections, G.R. Nos. 193643 and 193704
January 29, 2013, 689 SCRA 412,428-429.)

134 Black's Law Dictionary, 8th Ed., p. 1720.

135Bagatsing v. Ramirez, 165 Phil. 909, 914-915 (1976).

136 Section 1, Rule 45 of the 1997 Rules of Procedure states that a "party desiring to appeal by certiorari
from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari." (Emphasis and underscoring supplied)

This is consistent with Item (e), Section 5 (2), Article VIII of the 1987 Constitution which reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari , as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

(e) All cases in which only an error or question of law is involved.

137 356 Phil. 787(1998).

138 Note that "[o]ur ruling in the case of Fabian vs. Desierto invalidated Section 27 of Republic Act "No.
6770 and Section 7, Rule 111 of Administrative Order No. 07 and any other provision of law
implementing the aforesaid Act only insofar as they provide for appeals in administrative disciplinary
cases from the Office of the Ombudsman to the Supreme Court. The only provision affected by the
Fabian ruling is the designation of the Court of Appeals as the proper forum and of Rule 43 of the Rules
of Court as the proper mode of appeal. All other matters included In said section 27, including the
finality or non-finality of decisions, are not affected and still stand." (Lapid v. CA, 390 Phil. 236, 248
[2000]).

139Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advice and concurrence.

140 587 Phil. 100(2008).

141 Id. at 111-112.

142 For ease of reference, the provision is re-stated:

"In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman
may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court."

143 There should be no statement on the Court's lack of advice and concurrence with respect to the
second paragraph of Section 14, RA 6770 since the deliberations are, in fact, silent on the said provision.

144 See Ombudsman's Memorandum, rollo, Vol. II, pp. 666-667. Note that nowhere does the fourth
paragraph of Section 27 delimit the phrase "orders, directives or decisions" to those rendered by the
Ombudsman at the conclusion of the administrative proceedings, as the Ombudsman submits.

145 See Philippine Economic Zone Authority v. Green Asia Construction and Development Corporation,
675 Phil. 846, 857(2011).

146 See Black's Law Dictionary, 8th Ed., p. 615.

147 Fabian supra note 137, at 800-801.

148 A preventive suspension is a mere preventive measure, and not a penalty (see Quimbo v. Gervacio,
503 Phil. 886, 891 [2005]); and hence, interlocutory in nature since it "does not terminate or finally
dismiss or finally dispose of the case, but leaves something to be done by [the adjudicating body] before
the case is finally decided on the merits." (Metropolitan Bank & Trust Company v. CA, 408 Phil. 686, 694
[2001]; see also Banares II v. Balising, 384 Phil. 567, 577 [2000]).
149Gomales v. CA, 409 Phil. 684, 689 (2001).

150 Includes interlocutory orders, such as preventive suspension orders, as well as final and
unappealable decisions or orders under Section 27, RA 6770 which states that "[a]ny order, directive or
decision imposing the penalty of public censure or reprimand, suspension of not more than one (1)
month's salary shall be final and unappealable."

151 G.R. No. 201643, March 12, 2014, 719 SCRA 209.

152 Id. at 219.

153 G.R. No. 184083, November 19, 2013, 709 SCRA 681.

154 Id. at 693.

155 411 Phil. 204(2001).

156 Supra note 140.

157Rollo, Vol. 1, p. 18.

158 Id.

159 Id.

160 G.R. Nos. 196231 and 196232, January 28, 2014, 714 SCRA 611.
161 Id. at 639-641.

162 Id. at 641-642.

163 Id. at 643 (emphases supplied).

164 Id. at 644, citing Bengzon v. Drilon, G.R. No. 103524, April 15, 1992, 208 SCRA 133, 150 (emphasis
supplied).

165 Id. at 644-645 (emphases supplied).

166 Id. at 646-648.

167 See id. at 648-657.

168 See Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the
Retired Chief/Associate Justices of the Supreme Court, A.M. No. 11-7-10-SC July 31 2012 678 SCRA 1, 13.

169 See Gonzales III, supra note 160, at 650, citing the Record of the Constitutional Commission Vol 2
July 26, 1986, p. 294.

170 See rollo, Vol. I, pp. 670-671.

171 Records of the Senate, August 24, 1988, p. 619. See also rollo, Vol. II, pp. 670-671 (emphases and
underscoring in the original).

172Rollo, Vol. II, p. 672.

173 See discussions in Ombudsman's Memorandum, rollo, Vol. 11, pp. 670-678 and Binay, Jr.'s
Memorandum, rollo, Vol. II, pp. 825-833. See also TSN of the Oral Arguments, April 14, 2015, pp. 5-9.

174 See People v. Vera, 65 Phil. 56, 82 (1937), citing McGirr v. Hamilton and Abreu, 30 Phil, 563, 568
(1915); 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.

175 63 Phil. 139(1936).

176 Id. at 157.

177 G.R.Nos. 208566, 208493, and 209251, November 19, 2013, 710 SCRA 1.

178 Id. at 108.

179 Id.

180 Entitled "AN ACT REORGANIZING THE JUDICIARY, APPROPRIATING FUNDS THEREFOR, AND FOR
OTHER PURPOSES" (approved on August 14, 1981).

181 See Section 3, Chapter 1, BP 129.

182 See Section 13, Chapter II, BP 129.

183 See Section 25, Chapter III, BP 129.

184 Entitled "An ACT Creating THE COURT OF TAX APPEALS" (approved on June 16, 1954), which was
later amended by RA 9282 (approved on March 30, 2004) and RA 9503 (approved on June 12, 2008).

185 Entitled "CREATING A SPECIAL COURT TO BE KNOWN AS 'SANDIGANBAYAN' AND FOR OTHER
PURPOSES" (approved on June 11, 1978), which was later amended by PD 1606 (approved on December
10, 1978), RA 7975 (approved on March 30, 1995), and RA 8249 (approved on February 5, 1997).

186 Section 5, Article VIII of the 1987 Constitution provides:

Section 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari , prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari , as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

xxxx

187 See G.R. No. 205728, January 21, 2015, citing Reyes v. Diaz 73 Phil 484, 486 (1941)

188 254 Phil. 418 (1989).

189 Id. at 427.

190 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary,
2009 Ed., p. 959, as cited also in the Ombudsman's Memorandum, rollo, Vol. II, p. 661.

191 G.R. No. 101083, July 30, 1993, 224 SCRA 792.

192 Id. at 810, citing Cruz, Isagani A., Philippine Political Law, 1991 Ed., pp. 226-227.

193 20 Phil. 523(1911).

194 Id. at 530-531.

195 See 361 Phil. 73, 86-91 (1999).

196 Article VIII, Section 13 of the 1935 Constitution provides:chanRoblesvirtualLawlibrary

Section 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice
and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all
courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws
on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Courts,
subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall
have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure,
and the w7 admission to the practice of law in the Philippines. (Emphasis supplied)

197 Article X, Section 5 (5) of the 1973 Constitution provides:

Section 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the Batassing Pambansa. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights. (Emphasis supplied)

198 See Re: Petition for Recognition of the Exemption of the Government Service Insurance System
(GSIS) from Payment of Legal Fees, 626 Phil. 93, 106-109 (2010).

199Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes, 627 Phil.

543,549(2010).

200 See discussions as in the Records of the Constitutional Commission, July 14, 1986, pp. 491-492.

201 Id. at 492.

202 Supra note 195, at 88.

203 "Status quo is the last actual, peaceable and uncontested situation which precedes a controversy."
(See Dolmar Real Estate Dev't. Corp. v. CA, 570 Phil. 434, 439 [2008] and Preysler, Jr. v. CA, 527 Phil. 129,
136 [2006].)

204 See The Incorporators of Mindanao Institute, Inc. v. The United Church of Christ in the Philippines,
G.R. No. 171765, March 21, 2012, 668 SCRA 637, 647.

205 Section 1, Rule 58 of the 1997 Rules of Civil Procedure provides:chanRoblesvirtualLawlibrary

Section 1. Preliminary injunction defined; classes. - A preliminary injunction is an order granted at any
stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency
or a person to refrain from a particular act or acts. It may cilso require the performance of a particular
act or acts, in which case it shall be known as a preliminary mandatory
injunction.ChanRoblesVirtualawlibrary

206 Section 3, Rule 58 of the 1997 Rules of Civil Procedure provides:chanRoblesvirtualLawlibrary

Section. 3. Grounds for issuance of preliminary injunction. — A preliminary injunction may be granted
when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;cralawlawlibrary

(b) That the commission, continuance or non-performance of the act or acts complained of during the
litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation of jthe rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment ineffectual.

207 Section 5, Rule 58 of the 1997 Rules of Civil Procedure provides:

Section 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction
shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall
appear from facts shown by affidavits or by the verified application that great or irreparable injury would
result to the applicant before the matter can be heard on notice, the court to which the application for
preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only
for a period of twenty (20) days from service on the party or person sought to be enjoined, except as
herein provided, x x x.

However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or
the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for
only seventy-two (72) hours from issuance but shall immediately comply with the provisions of the next
preceding section as to service of summons and the documents to be served therewith, x x x.

x x x x (Emphases supplied)

208 Rules of procedure of special courts and quasi-judicial bodies may be specifically pointed out by law
and thus, remain effective unless the Supreme Court disapproves the same pursuant to Section 5 (5),
Article VIII of the 1987 Constitution:

Section 5. The Supreme Court shall have the following powers: cralawlawlibrary

(5) xxx. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court. (Emphasis and underscoring supplied)

209 G.R. No. 175723, February 4, 2014, 715 SCRA 182.

210 Id. at 204.

211 Id. at 197.

212 Id. at 204.

213 Id. at 204-205.

214 Id. at 205.

215 Supra note 175, at 177, citing Cooley, Constitutional Limitations, 8th Ed., Vol. I, pp. 138-139.

216 (last visited July 27, 2015). See also Black's Law Dictionary, 8th Ed., p. 798.

217 672 S.W.2d 62 (1984).

218 The particular statute [KRS 243.580(2) and (3)] reads:chanRoblesvirtualLawlibrary

(2) If a license is revoked or suspended by an order of the board, the licensee shall at once suspend all
operations authorized under his license, except as provided by KRS 243.540, though he files an appeal in
the Franklin Circuit Court from the order of revocation of suspension.

(3) No court may enjoin the operation of an order of revocation or suspension pending an appeal. If
upon appeal to the Franklin Circuit Court an order of suspension or revocation is upheld, or if an order
refusing to suspend or revoke a license is reversed, and an appeal is taken to the Court of Appeals, no
court may enjoin the operation of the judgment of the Franklin Circuit Court pending the appeal. (See
Smothers, id.; emphasis supplied.)

219 See id.

220 "Substantive law is that part of the law which creates, defines and regulates rights, or which
regulates the right and duties which give rise to a cause of action; that part of the law which courts are
established to administer; as opposed to adjective or remedial law, which prescribes the method of
enforcing rights or obtain redress for their invasions." (Primicias v. Ocampo, 93 Phil. 446, 452 [1953],
citing Bustos v. Lucero, [46 Off. Gaz., January Supp., pp. 445, 448], further citing 36 C. J. 27; 52 C. J. S.
1026); See also Fabian, supra note 137.
221 Fabian, id. at 809.

222 629 Phil. 1 (2010).

223 Supra note 198.

224 Supra note 199.

225Neypes v. CA, 506 Phil. 613, 626 (2005).

226BAMARVEMPCO v. Cabato-Cortes, supra note 199, at 550.

227 See Ombudsman's Memorandum, rollo, Vol. II, pp. 668-669.

228 TSN of the Oral Arguments, April 14, 2015, pp. 64-68.

229 651 Phil. 374, 427(2010).

230 See 2 335 Phil. 82, 114 (1997).

231 503 Phil. 886 (2005).

232 Id. at 891-892.

233The Ombudsman v. Valeroso, 548, Phil. 688, 695 (2007).

234 Supra note 68. See also rollo, Vol. I, p. 45.

235Rollo, Vol. I, p. 46.

236Governor Garcia, Jr. supra note 68, at 690.

237 Supra note 92.

238Rollo, Vol. I, p. 619

239 All of which Pertains to the payment of Phase V. See id. at 346-349. See also id. at 623.

240 Supra note 95.

241 Supra note 96.

242 242 Id. at 619-620.

243 See Ombudsman's Memorandum, rollo, Vol. II, p. 703-704.

244 See rollo, Vol. I, pp. 410-415.

243 See id. at 415-422.

246 Black's Law Dictionary, 8th Ed., p. 315.

247 106 Phil. 466 (1959).

248 Id. at 471.

249 Id.

250 See Chief Justice Maria Lourdes P. A. Sereno's (Chief Justice Sereno) Interpellation, TSN of the Oral
Arguments, April 21, 2015, p. 191.

251 155 Ohio St. 329; 98 N.E.2d 807 (1951); cited in Goger, Thomas, J.D., Removal of public officers for
misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015), p.

252 Tex Civ App 29 SW 415 (1895), cited in Goger, Thomas, J.D., Removal of public officers for
misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015), p. 16,
and in Silos, Miguel U., A Re-examination of the Doctrine of Condonation of Public Officers, 84 Phil. L.J.
22, 33 (2009).

253 1956 OK 338; 305 P.2d 548 (1956); cited in Goger, Thomas, J.D., Removal of public officers for
misconduct during previous term, 42 A.L.R3d 691 (1972), published by Thomson Reuters (2015), p. 15.

254 22 Ohio St. 2d 120; 258 N.E.2d 594 (1970); cited in Goger, Thomas, J.D., Removal of public officers
for misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015), pp.
11 and 22.
255 1946 Pa. Dist. & Cnty.; 56 Pa. D. & C. 393 (1946); cited in Goger, Thomas, J.D., Removal of public
officers for misconduct during previous term, 42 A.L.R3d 691 (1972), published by Thomson Reuters
(2015), pp. 11.

256 45 La Ann 1350, 14 So 28 (1893); cited in Goger, Thomas, J.D., Removal of public officers for
misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015), pp. 26.

257 236 App Div 371, 259 NYS 402 (1932); cited in Goger, Thomas, J.D., Removal of public officers for
misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015), pp. 27.

258 See Ombudsman's Memorandum p. 70, rollo, Vol. II, p. 715, citing Silos, Miguel U., A Re-examination
of the Doctrine of Condonation of Public Officers, 84, Phil. LJ 22, 69 (2009).

259 239 Mass. 458; 132 N.E. 322(1921)

260 109 Iowa 19; 79 N.W. 369(1899).

261 192 Mich. 276; 158 N.W. 953 (1916).

262 14 N.M. 493; 1908-NMSC-022 (1908).

263 125 Ga. 18; 53 S.E. 811 (1906)

264 85 Minn. 41; 88 N.W. 412 (1901), cited in Silos, Miguel U., A Re-examination of the Doctrine of
Condonation of Public Officers, 84, Phil. LJ 22, 69 (2009).

265 148 Kan. 166; 80 P.2d 1095 (1938); cited in Silos, Miguel U., A Re-examination of the Doctrine of
Condonation of Public Officers, 84, Phil. LJ 22, 70 (2009).
266 199 Kan. 403; 430 P.2d 304 (1967), applying State ex rel. Beck v. Harvey, id.

267 Southern Cross Cement Corporation v. Cement Manufacturers Association of the Philippines, 503
Phil. 485 (2005).

268 Supra note 177.

269 See Ombudsman Memorandum, rollo, Vol. II, p. 718, citing Cardozo, Benjamin N., The Nature of the
Judicial Process 149 (1921), cited in Christopher P. Banks, Reversal of Precedent and Judicial Policy-
Making: How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change, 32
Akron L. Rev. 233(1999).

270 Id. at 722-723.

271Kimble v. Marvel Entertainment, L.L.C., 135 S. Ct. 2401; 192 L. Ed.; 192 L. Ed. 2d 463 (2015).

272 Pascual, supra note 247, at 471.

273 Id. at 471-472.

274 Id. at 472.

275 123 Phil. 916(1966).

276 129 Phil. 553 (1967). See also Luciano v. The Provincial Governor, 138 Phil. 546 (1967) and Oliveros v.
Villaluz, 156 Phil. 137 (1974).
277 Supra note 92.

278 Supra note 95.

279 Id. at 921.

280 Supra note 96.

281 633 Phil. 325(2010).

282 Id. at 335

283 577 Phil. 52, 72 (2008).

284Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 607.

285Teehankee v. Rovira, 75 Phil. 634, 646 (1945), citing 11 Am. Jur., Constitutional Law, Section 96.

286Philippine Constitution Association v. Enriquez, G.R. Nos. 113105, 113174, 113766 and 113888
August 19, 1994, 235 SCRA 506, 523.

287 See Silos, Miguel U., A Re-examination of the Doctrine of Condonation of Public Officers, 84, Phil. LJ
22, 69 (2009), pp. 26-27.

288 Section 27, Article II.

289 Belgica, supra note 177, at 131, citing Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic
of the Philippines: A Commentary, 2003 Ed., p. 1108.

290 Section 1. Declaration of Policy. - The State shall insure and promote the Constitutional mandate
that appointments in the Civil Service shall be made only according to merit and fitness; that the Civil
Service Commission, as the central personnel agency of the Government shall establish a career service,
adopt measures to promote morale, efficiency, integrity, responsiveness, and courtesy in the civil service,
strengthen the merit and rewards system, integrate all human resources development programs for all
levels and ranks, and institutionalize a management climate conducive to public accountability; that
public office is a public trust and public officers and employees must at all times be accountable to the
people; and that personnel functions shall be decentralized, delegating the corresponding authority to
the departments, offices and agencies where such functions can be effectively performed. (Section 1,
Book V, Title I, subtitle A of the Administrative Code of 1987; emphasis supplied).

291 Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard of ethics in
public service. Public officials and employees shall at all times be accountable to the people and shall
discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism
and justice, lead modest lives, and uphold public interest over personal interest. (Emphasis supplied) See
Section 2, RA 6713 (approved on February 20, 1989).

292 Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991" (approved on October 10
1991).

293 279 Phil. 920, 937(1991)

294 In Fudula's Petition (297 Pa. 364; 147 A. 67 [1929]), the Supreme Court of Pennsylvania cited (a) 29
Cyc. 1410 which states: "Where removal may be made for cause only, the cause must have occurred
during the present term of the officer. Misconduct prior to the present term even during a preceding
term will not justify a removal": and (b) "x x x Penal Code [Cal.], paragraph 772, providing for the removal
of officers for violation of duty, which states "a sheriff cannot be removed from office, while serving his
second term, for offenses committed during his first term." (Emphases supplied)
ln Board of Commissioners of Kingfisher County v. Shutler (139 Okla. 52; 281 P. 222 [1929]), the Supreme
Court of Oklahoma held that "[u]nder section 2405, C. O. S. 1921, the only judgment a court can render
on an officer being convicted of malfeasance or misfeasance in office is removal from office and an
officer cannot be removed from office under said section for acts committed by him while holding the
same office in a previous term." (Emphases supplied)

295 In State v. Blake (138 Okla. 241; 280 P. 833 [1929]), the Supreme Court of Oklahoma cited State ex
rel. Hill, County Attorney, v. Henschel, 175 P. 393, wherein it was said: "Under the Ouster Law (section
7603 of the General Statutes of 1915-Code Civ. Proc. 686a-), a public officer who is guilty of willful
misconduct in office forfeits his right to hold the office for the term of his election or appointment; but
the disqualification to hold the office does not extend beyond the term in which his official delinquency
occurred." (Emphases supplied)

296 In Rice v. State (204 Ark. 236; 161 S.W.2d 401 [1942]), the Supreme Court of Arkansas cited (a)
Jacobs v. Parham, 175 Ark. 86,298 S.W. 483, which quoted a headnote, that "Under Crawford Moses'
Dig., [(i.e., a digest of statutes in the jurisdiction of Arkansas)] 10335, 10336, a public officer is not
subject to removal from office because of acts done prior to his present term of office in view of Const.,
art. 7, 27, containing no provision against re-election of officer removed for any of the reasons named
therein." (Emphases supplied)

297 In State ex rel. Brlckell v. Hasty (184 Ala. 121; 63 So. 559 [1913]), the Supreme Court of Alabama
held: "x x x If an officer is impeached and removed, there is nothing to prevent his being elected to the
identical office from which he was removed for a subsequent term, and, this being true, a re election to
the office would operate as a condonation under the Constitution of the officer's conduct during the
previous term, to the extent of cutting off the right to remove him from subsequent term for said
conduct during the previous term. It seems to be the policy of our Constitution to make each term
independent of the other, and to disassociate the conduct under one term from the qualification or right
to fill another term, at least, so far as the same may apply to impeachment proceedings, and as
distinguished from the right to indict and convict an offending official." (Eijnphasis supplied)

298 In State Ex Rel. V. Ward (163 Tenn. 265; 43 S.W.2d. 217 [1931]), decided by the Supreme Court of
Tennessee, Knoxville, it appears to be erroneously relied upon in Pascual, since the proposition "[tjhat
the Acts alleged in paragraph 4 of the petition involved contracts made by defendant prior to his present
term for which he cannot now be removed from office" was not a court ruling but an argument raised by
the defendant in his demurrer.
299 In Conant v. Grosan (6 N.Y.S.R. 322 [1887]), which was cited in Newman v. Strobel (236 A.D. 371; 259
N.Y.S. 402 [1932]; decided by the Supreme Court of New York, Appellate Division) reads: "Our attention is
called to Conant v. Grogan (6 N.Y. St. Repr. 322; 43 Hun, 637) and Matter of King (25 N.Y. St. Repr. 792; 53
Hun, 631), both of which decisions are of the late General Term, and neither of which is reported in full
in the official series. While there are expressions in each opinion which at first blush might seem to
uphold respondent's theory, an examination of the cases discloses the fact that the charge against each
official related to acts performed during his then term of office, and evidence of some prior irregularity
was offered which in no way pertained to the charge in issue. It was properly held that such evidence
was incompetent. The respondent was not called upon to answer such charge, but an entirely separate
and different one." (Emphases supplied)

300 In People ex rel. Basshaw v. Thompson (55 Cal. App. 2d 147; 130 P.2d.237 [1942]), the Court of
Appeal of California, First Appellate District cited Thurston v. Clark, (107 Cal. 285, 40 P. 435), wherein it
was ruled: "The Constitution does not authorize the governor to suspend an incumbent of the office of
county commissioner for an act of malfeasance or misfeasance in office committed by him prior to the
date of the beginning of his current term of office as such county commissioner." (Emphasis supplied)

301Montgomery v. Nowell, (183 Ark. 1116; 40 S.W.2d 418 [1931]; decided by the Supreme Court of
Arkansas), the headnote reads as follows: "Crawford & Moses' Dig., 10, 335, providing for suspension of
an officer on presentment or indictment for certain causes including malfeasance, in office does not
provide for suspension of an officer on being indicted for official misconduct during a prior term of
office." (Emphasis supplied)

302 See Chief Justice Maria Lourdes P. A. Sereno's interpellation, TSN of the Oral Arguments, April 14,
2015, p. 43.

303 See Ombudsman's Memorandum, rollo, Vol. 11, p. 716, citing Silos, Miguel U., A Re-examination of
the Doctrine of Condonation of Public Officers, 84, Phil. LJ 22, 69 (2009), p. 67.

304 117 N.J.L. 64; 186 A. 818(1936).

305 See Article 8 of the Civil Code.

306 632 Phil. 657(2010).

307 Id. at 686.

308 154 Phil. 565 (1974).

309 G.R. Nos. 97973 and 97998, January 27, 1992, 205 SCRA 515.

310 Id. at 527.

311 Yu v. Reyes-Carpio, 667 Phil. 474, 481-482 (2011).

312Tagolino v. House of Representatives Electoral Tribunal, G.R. No. 202202, March 19 2013 693 SCRA
574, 599-600.

313 See Press Release dated October 9, 2015 of the Office of the Ombdusman, (visited November 9,
2015).

314 Supra note 177, at 93.

315 See Ombudsman's Memorandum, rollo, Vol II p 85.

316Rollo, Vol. I, pp. 50-51.

317 See Amended and Supplemental Petition for Contempt dated March 18, 2015 wherein private
respondent Binay, Jr. charged, inter alia, the Ombudsman for acts constituting indirect contempt under
Section 3 (b), (c), and (d) of Rule 71 of the Rules of Court; id. at 362-375.
318 See rollo, Vol. II, pp. 734-743.

319Rollo, Vol. I, p. 50.

CONCURRING AND DISSENTING OPINION

BERSAMIN, J.:

I am writing this separate opinion to memorialize my concurrence with the declaration of the
ineffectiveness of the first paragraph of Section 14 of Republic Act No. 6770, and of the
unconstitutionality of the second paragraph thereof. The main opinion has been written well by our
esteemed colleague, Associate Justice Estela M. Perlas-Bernabe, who has exhibited her scholarly bent
once again. But let me assure my colleagues in the Majority that if I submit this concurrence, I do not
mean to diminish in any way or degree the forcefulness and correctness of the justification for the
declaration. I simply want to underscore that Section 14 of Republic Act No. 6770 should be struck down
for authorizing the undue interference with the prerogatives of the courts of law to adopt whatever
means were allowed by law and procedure to exercise their jurisdiction in the cases properly cognizable
by them.

My dissent focuses on the main opinion's re-examination of the doctrine of condonation. This
controversy does not call for the revisit of the doctrine, and does not warrant its eventual abandonment.
For the Court to persist in the re-examination, as it does now, and to announce its abandonment of the
doctrine despite the lack of the premise of justiciability is to indulge in conjecture or in unwarranted
anticipation of future controversies. We should refrain from the re-examination.

The Ombudsman's supplemental petition raised condonation for the first time but only to support her
insistence that the CA could not validly rely on the doctrine of condonation to justify its issuance of the
injunction. She maintained then that condonation was a matter of defense to be properly raised only in
the appropriate administrative proceeding, viz:

6. It must be further emphasized that the condonation doctrine is irrelevant in the Ombudsman's
determination of whether the evidence of guilt is strong in issuing preventive suspension orders. Said
doctrine does not go into the heart of subject-matter jurisdiction. Neither can it oust the Ombudsman of
her jurisdiction which she has already acquired. Private respondent's claim of condonation doctrine is
equally a matter of defense which, like any other defense, could be raised in the proper pleading, could
be rebutted, and could be waived.

As a defense, condonation should be passed upon after a decision on the administrative proceedings,
not this early in the proceeding.

7. The condonation doctrine, however, cannot abate the issuance of a preventive suspension order,
precisely because an order of preventive suspension does not render a respondent administratively
liable. A respondent may be preventively suspended, yet may be exonerated in the end.

8. At all events, there is no condonation because private respondent committed the acts subject of the
complaint after his re-election in 2013, as was argued by petition in public respondent Court of Appeals.

9. As mentioned earlier, there is no condonation. The assailed act (i.e. payment), by private respondent's
own admission during the proceedings before public respondent Court of Appeals, took place during the
period of June and July 2013, which was after his re-election in May 2013.1

The Ombudsman again discussed the doctrine of condonation at some length in her Memorandum as
the fourth and last argument presented on the issue of the propriety of the temporary restraining order
and the writ of preliminary injunction.2 She reiterated, however, that the doctrine was only a matter of
defense that was relevant only in imposing an administrative penalty on the respondent public elective
official, to wit:

165. Thus, in deciding that the evidence of respondent Binay's guilt is strong, petitioner did not take into
consideration the so-called "condonation doctrine" the way respondent Court of Appeals did in its Third
Resolution. The condonation doctrine is applicable and relevant only to the imposition of an
administrative penalty, not to the issuance of a preventive suspension, the latter being merely a
preliminary step in an administrative investigation.

166. Since a preventive suspension does not hold a public officer liable, it will not be affected by any
"condonation" that the electorate may extend to the public officer. Verily, for purposes of aiding an
investigation, a public officer may be preventively suspended even as, ultimately, he or she will be
exonerated from administrative liability due to the condonation doctrine. CONDONATION IS A MATTER
OF DEFENSE - to be positively alleged and to be weighed according to the evidence - during the
administrative proceedings, and not at the very preliminary stage thereof.3

I agree with the Ombudsman. The question of grave abuse of discretion on the part of the CA could be
settled not by re-examining and overturning the doctrine of condonation but by reference to Section 24
of the Republic Act No. 6770. It would be plain error for us to determine whether the Court of Appeals
(CA) gravely abused its discretion or not on the basis of the doctrine of condonation.

The general investigatory power of the Ombudsman is decreed by Section 13 (1), Article XI of the 1987
Constitution,4 while her statutory mandate to act on administrative complaints is founded on Section 19
of Republic Act No. 6770, viz.:

Section 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;cralawlawlibrary

2. Are unreasonable, unfair, oppressive or discriminatory;cralawlawlibrary

3. Are inconsistent with the general course of an agency's functions, though in accordance with
law;cralawlawlibrary

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

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

6. Are otherwise irregular, immoral or devoid of justification.ChanRoblesVirtualawlibrary

In line with the power to investigate administrative cases, the Ombudsman is vested with the authority
to preventively suspend respondent public officials and employees pursuant to Section 24 of Republic
Act No. 6770, which provides:

Section 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt
is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the
service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman
but not more than six (6) 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.

It is important to note, however, that the Ombudsman has no authority to issue the preventive
suspension order in connection with criminal investigations of government officials or employees
because such authority rests in the courts in which the criminal cases are filed.5

Under Section 24, supra, two requisites must concur to render the preventive suspension order valid.
The first requisite is unique because it can be satisfied in only one way, which is that the evidence of guilt
is strong in the judgment of the Ombudsman or the Deputy Ombudsman. But the second requisite may
be satisfied in three different ways, namely: (1) that the offense charged involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty; or (2) the charge would warrant removal
from the service; or (3) the respondent's continued stay in office may prejudice the case filed against him
or her.6

Respondent Jejomar Erwin S. Binay, Jr., along with other officers and employees of the City of Makati,
were administratively charged in the Office of the Ombudsman with grave misconduct, serious
dishonesty, and conduct prejudicial to the best interest of the service.7 In her joint order dated March
10, 2015, the Ombudsman stated that the requisites for the issuance of the preventive suspension order
against Binay, Jr. and his corespondents were satisfied, specifically:

The first requisite is present in these cases, as shown by the supporting evidence attached as Annexes to
the Complaint. These Annexes include, among other things, sworn statements of alleged losing bidders
and of some members of the Makati City BAC attesting to the irregularities in the subject procurement;
documents negating the purported publication of bids; and disbursement vouchers, checks, and official
receipts showing disbursement of public funds by the city government.

As regard the second requisite, all the circumstances enumerated therein are likewise present. The
Complaint charges respondents with Grave Misconduct, Serious Dishonesty and Conduct Prejudicial to
the Best Interest of the Service. If proven true, they constitute grounds for removal from public service
under the Revised Rules on Administrative Cases in the Civil Service. Moreover, since the respondents'
respective positions give them access to public records and influence on possible witnesses,
respondents' continued stay in office may prejudice the cases filed against them. Thus, their preventive
suspension without pay for a period of six (6) months is in order.

When he assailed the preventive suspension order by petition for certiorari in the CA, Binay, Jr. alleged
that the preventive suspension order was illegal and issued with grave abuse of discretion because: (1) it
contravened well-settled jurisprudence applying the doctrine of condonation; and (2) evidence of his
guilt was not strong. He prayed that a temporary restraining order or writ of preliminary injunction be
issued to enjoin the implementation of the preventive suspension order.

The CA heeded Binay, Jr.'s prayer for injunctive reliefs chiefly on the basis of the doctrine of condonation.
In the resolution promulgated on March 16, 2015, the CA, citing the pronouncement in Garcia, Jr. v.
Court of Appeals,8 granted Binay, Jr.'s application for the temporary restraining order, holding as follows:

In Garcia v. Court of Appeals (GR No. 185132, April 24, 2009), the Supreme Court held that suspension
from office of an elective official, whether as a preventive measure or as a penalty will undeservedly
deprive the electorate of the services of the person they have conscientiously chosen and voted into
office.
The Supreme Court in said case likewise found serious and urgent the question, among other matters, of
whether the alleged acts were committed in the previous term of office of petitioner therein. This is
because if it were established that the acts subject of the administrative complaint were indeed
committed during petitioner's prior term, then following settled jurisprudence, he can no longer be
administratively charged. It further declared imperative on the part of the appellate court, as soon as it
was apprised of the said considerable grounds, to issue an injunctive writ so as not to render moot,
nugatory and ineffectual the resolution of the issues in the certiorari petition. (Garcia, supra)

The Supreme Court also declared that it would have been more prudent on the part of the CA, on
account of the extreme urgency of the matter and the seriousness of the issues raised in the certiorari
petition, to issue a TRO while it awaits the respective comments of the respondents and while it
judiciously contemplates on whether or not to issue a writ of preliminary injunction. It pointed out that
the basic purpose of a restraining order is to preserve the status quo until the hearing of the application
for preliminary injunction. That, it is a preservative remedy for the protection of substantive rights and
interests. (Garcia, supra)

In view of the seriousness of the issues raised in the Petition for Certiorari and the possible
repercussions on the electorate who will unquestionably be affected by suspension of their elective
official, the Court resolves to grant petitioner's prayer for a Temporary Restraining Order for a period of
sixty (60) days from notice hereof, conditioned upon the posting by petitioner of a bond in the amount
of FIVE HUNDRED THOUSAND PESOS (P500,000.00)9

In ultimately granting the writ of preliminary injunction through its April 6, 2015 resolution, the CA,
relying on the doctrine of condonation adopted in Garcia, Jr.; Joson III v. Court of Appeals;10Aguinaldo v.
Santos;11 and Salalima v. Guingona, Jr.,12 explained:

Garcia was simply an echo of teachings in Joson v. Cowl of Appeals (G.R. No. 160652, February 13, 2006)
where the High Court declared that suspension from office of an elective official would deprive the
electorate of the services of the person they have voted into office.

Along this line, the concept of condonation, as advocated by petitioner and opposed by public
respondent Ombudsman, will assume resonance.
Premised on Aguinaldo, Salalima and Garcia, petitioner asserted that the public respondent Ombudsman
can hardly impose preventive suspension of petitioner, given his election in 2010 and re-election in 2013
as Makati City Mayor, relative to his perceived illegal participation in anomalous activities for the Makati
City Hall Building II project from 2007 to 2013.

xxxx

To reiterate, there was no disagreement that petitioner was elected in 2010 and re-elected as City Mayor
of Makati in 2013. The acts constitutive of the charges in the Complaint pertained to events from
November 8, 2007, when City Ordinance No. 2007-A-015 appropriated P1,240,000,000.00 as
supplemental budget for 2007. From this budget, P400,000,000.00 was allocated for the parking
building. It was allegedly during this time that a Negotiated Contract for the architectural and
engineering services were negotiated and approved. Disbursements allegedly favored Hilmarc and
MANA amidst irregularities in the bidding process during the term of petitioner as City Mayor of Makati.

Yet, to subscribe to public respondent Ombudsman's submission that condonation can only be
appreciated by the investigating body after it is ventilated as an exculpation by petitioner and considered
solely by public respondent, following the exercise of its investigatory power, will ignore the Court's
constitutional power and duty to evaluate the factual and legal foundations for, nay, impediments to, a
preventive suspension in an administrative case.13

In my view, however, the CA erroneously banked on the pronouncements in Garcia, Jr., Joson III,
Aguinaldo, and Salalima to espouse the doctrine of condonation as the basis to issue the injunctive writs
under its resolutions promulgated on March 16, 2015 and April 6, 2015. In both Aguinaldo and Salalima,
the Court applied the doctrine of condonation to avoid the imposition of administrative liability upon re-
elected public officials. Specifically, the Court held in Aguinaldo that:

Petitioner's re-election to the position of Governor of Cagayan has rendered the administrative case
pending before Us moot and academic. It appears that after the canvassing of votes, petitioner garnered
the most number of votes among the candidates for governoer of Cagayan province, xxx

xxxx
Clearly then, the rule is that a public official cannot be removed for administrative misconduct
committed during a prior term, since his reelection to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioner for acts he may have
committed during the failed coup.14

while in Salalima, the Court maintained that:

xxx [A]ny administrative liability which petitioner Salalima might have incurred in the execution of the
retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6
March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in
O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronozed
elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng
Albay,who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract
in question and who were reelected in the 1992 elections. This is, however, without prejudice to the
institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances,
xxx15

It is clear to me that, based on the language and the factual milieu of Aguinaldo and Salalima, which
both cited Pascual v. Provincial Board of Nueva Ecija,16 and of other akin rulings,17 condonation shall
apply only in case of the re-election of a public officer who is sought to be permanently removed from
office as a result of his misconduct, not while such public officer is undergoing investigation.
Condonation necessarily implies that the condoned act has already been found to have been committed
by the public officer. Hence, condonation applies to the penalty or punishment imposed after the
conduct of an administrative investigation. Under the circumstances, the pronouncements in Aguinaldo,
Salalima and the others could not be applicable to the preventive suspension order issued to Binay, Jr.
pending his administrative investigation because preventive suspension pending the conduct of an
investigation was not yet a penalty in itself, but a mere measure of precaution to enable the disciplining
authority to investigate the charges by precluding the respondent from influencing the witnesses against
him.18

It is worth emphasis that preventive suspension is distinct from the penalty of suspension. The former is
imposed on a public official during the investigation while the latter, as a penalty, is served after the final
disposition of the case.19 The former is not a punishment or penalty for misconduct in office, but a
merely preventive measure, or a preliminary step in the administrative investigation.20
As I see it, the CA misconstrued the milieu in Garcia, Jr. and Joson III as an application of the doctrine of
condonation. The Court notably stated in Garcia, Jr. and Joson III that "suspension from office of an
elective official would deprive the electorate of the services of the person they voted into office" in the
context of determining the propriety of the issuance of the preventive suspension order. In other words,
the statement only served to remind the Ombudsman to issue the preventive suspension orders with
utmost caution in view of the gravity of the effects of suspending an incumbent elective local official.
Hence, Garcia, Jr. and Joson III did not apply the doctrine of condonation.

I further underscore that the CA was then only resolving Binay, Jr.'s application for injunctive reliefs
against the preventive suspension order issued by the Ombudsman. At that point, the CA's application of
the doctrine of condonation was irrelevant and unnecessary.

A preliminary injunction is an order granted at any stage of an action prior to the judgment or final order
requiring a party or a court, agency or a person to refrain from a particular act or acts.21 The
requirements for the issuance of a writ of preliminary injunction or temporary restraining ordern are
clearly set forth in Section 3, Rule 58 of the Rules of Court.22 The sole objective of the writ of
preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. The
writ of preliminary injunction is generally based solely on initial and incomplete evidence;23 hence, it
should not determine the merits of a case, or decide controverted facts, for, being a preventive remedy,
it only seeks to prevent threatened wrong, further injury, and irreparable harm or injustice until the
rights of the parties can be settled.24 As held in Saulog v. Court of Appeals25 it is sufficient that:

x x x for the court to act, there must be an existing basis of facts affording a present right which is
directly threatened by an act sought to be enjoined. And while a clear showing of the right claimed is
necessary, its existence need not be conclusively established. In fact, the evidence to be submitted to
justify preliminary injunction at the hearing thereon need not be conclusive or complete but need only
be a sampling intended merely to give the court an idea of the justification for the preliminary injunction
pending the decision of the case on the merits. This should really be so since our concern here involves
only the proprietary of the preliminary injunction and not the merits of the case still pending with the
trial court.

Thus, to be entitled to the writ of preliminary injunction, the private respondent needs only to show that
it has the ostensible right to the final relief prayed for in its complaint x x x. (bold emphasis supplied.)
By relying on the doctrine of condonation, therefore, the CA went beyond the parameters for
determining whether or not to issue the injunctive writ. To recall, Binay, Jr. had filed his petition for
certiorari in the CA primarily to assail the validity of the preventive suspension order. What was raised
for the CA to determine was whether or not the Ombudsman satisfactorily complied with the requisites
imposed by Section 24 of Republic Act No. 6770 to establish that Binay, Jr. and his co-respondents had
the ostensible right to the final relief prayed for in their petition, which was the nullification or lifting of
the preventive suspension order. In this regard, the CA plainly exceeded its jurisdiction.

In the meanwhile, the Ombudsman found Binay, Jr. administratively liable, and dismissed him from the
service. By such dismissal, the questions raised against the CA's issuance of the writ of preliminary
injunction against the Ombudsman were rendered moot and academic. I join the Majority in saying that
the preventive suspension order, being an ancillary issuance, was dissolved upon the Ombudsman's
resolution of the administrative charges on the merits. Thus, to dwell on the preventive suspension of
Binay, Jr. and his co-respondents any further would be superfluous, for, as the Court said in Philippine
Savings Bank v. Senate Impeachment Court:26

It is a rule of universal application that courts of justice constituted to pass upon substantial rights will
not consider questions in which no actual interests are involved; they decline jurisdiction of moot cases.
And where the issue has become moot and academic, there is no justiciable controversy, so that a
declaration thereon would be of no practical use or value. There is no actual substantial relief to which
petitioners would be entitled and which would be negated by the dismissal of the petition.

In short, the Court should excuse itself from exercising jurisdiction because the main case, the
administrative proceeding against the respondents, has already been decided by the Ombudsman on the
merits.

IN VIEW OF THE FOREGOING, I VOTE to PARTIALLY GRANT the petition for certiorari and prohibition, and,
accordingly, SET ASIDE the Resolution promulgated on April 6, 2015 by the Court of Appeals.

I further VOTE to DISSOLVE the writ of preliminary injunction issued on April 8, 2015 in C.A.-G.R. SP No.
139453; and to AFFIRM the Resolution promulgated on March 20, 2015 in C.A.-G.R. SP No. 139504.