[G.R. No.
 127553. November 28, 1997.] true. The Court rejected petitioners' allegation that their admission is
EDDIE MANUEL, ROMEO BANA, ROGELIO PAGTAMA,
JR. and JOEL REA,  petitioners,vs.N.C.
CONSTRUCTION SUPPLY, JOHNNY LIM, ANITA SY
and NATIONAL LABOR RELATIONS COMMISSION
(SECOND DIVISION),  respondents.
J.S. Torregoza & Associates Law Office for petitioners.
Ramon P. Reyes for private respondents.
SYNOPSIS
Petitioners were employed as drivers by private respondent N.C.
Construction Supply. Aurelio Guevarra, a company driver, and Jay Calso, his
helper, were caught taking out of the company premises two rolls of electrical
wire worth P500.00 without authority. During the investigation, Calso named
seven other employees who were allegedly involved in a series of thefts at
respondent company, among them the petitioners. After being positively
identified by Calso, petitioners admitted their guilt and offered to resign in
exchange for withdrawal of any criminal charge against them. Respondent
company's legal counsel accepted petitioners' resignation. Thereafter,
petitioners filed a complaint against private respondents for illegal dismissal.
They alleged that they were not informed of the charge against them nor
were given the opportunity to dispute the same and that their admission
made at the Pasig Police Station were not voluntary but were obtained by
private respondent's lawyer by threat and intimidation. The Labor Arbiter
ruled in favor of the petitioners and found their dismissal illegal, and also
declared that petitioners' admission regarding their involvement in the theft
was inadmissible as it was taken in violation of Section 12, Article III of
the 1987 Constitution. On appeal, the NLRC reversed the decision of the
Labor Arbiter. The NLRC held that petitioners failed to adduce competent
evidence to show a vitiation of their admission and that such admission may
be admitted in evidence because Section 12, Article III of
the Constitution applies only to criminal proceedings but not to administrative
proceedings. Hence, the present petition.
The Supreme Court affirmed the decision of the NLRC. The Court
ruled that petitioners' culpability was sufficiently proved by private
respondents. Jay Calso, an employee of respondent company who has
personal knowledge about the series of thefts, positively identified petitioners
as among the perpetrators of the theft. Petitioners have not shown any ill
motive on the part of Calso to implicate them in the offense, unless it was
inadmissible in evidence as against them under Section 12, Article III of
the 1987 Constitution. The right to counsel under the Bill of Rights is meant
to protect a suspect in a criminal case under custodial investigation. In the
case at bar, the admission was made by petitioners during the course of the
investigation conducted by private respondents' counsel to determine
whether there is sufficient ground to terminate their employment. Petitioners
were not under custodial investigation as they were not accused by the
police of committing a crime. The investigation was merely administrative,
not criminal. The fact that the investigation was conducted at the police
station did not necessarily put petitioners under custodial investigation as the
venue of the investigation was merely incidental.
SYLLABUS
1. LABOR AND SOCIAL LEGISLATION; TERMINATION OF
EMPLOYMENT; REQUISITES OF A VALID DISMISSAL. — An employer
has a right to terminate the services of an employee subject to both
substantive and procedural limitations. This means that (1) the dismissal
must be for a just or authorized cause provided in the Labor Code, and (2)
the employee must be accorded due process before his employment is
terminated. The validity of the dismissal hinges on the employer's compliance
with these two requirements.
2. ID.;ID.;LOSS OF TRUST AND CONFIDENCE. — In the case at
bar, petitioners who were employed as drivers at respondent company were
found guilty of stealing company property consisting of electrical wire,
welding rod, G.I. sheet, steel bar and plywood. Article 282 of the Labor Code
authorizes an employer to terminate the services of an employee for loss of
trust and confidence, provided that the loss of confidence arises from
particular proven facts.
3. ID.;ID.;ID.;SUBSTANTIAL EVIDENCE IS SUFFICIENT IN
TERMINATION CASES; PETITIONERS' CULPABILITY IN THE INSTANT
CASE WAS SUFFICIENTLY PROVED. — The law does not require proof
beyond reasonable doubt of the employee's misconduct. Substantial
evidence is sufficient. Substantial evidence has been defined as such
relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion. Petitioners' culpability in the instant case was sufficiently
proved by private respondents. Jay Calso, an employee of respondent
company who has personal knowledge about the series of thefts that has
been going on at respondent company, positively identified petitioners as
among the perpetrators of the theft. Petitioners have not shown any ill motive
on the part of Calso to implicate them in the offense, unless it was true. In
addition, petitioners admitted their participation in the theft during an
investigation conducted by private respondents' lawyer.
 4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF A
PERSON UNDER CUSTODIAL INVESTIGATION; EXCLUSIONARY RULE;
APPLIES ONLY TO ADMISSIONS MADE IN A CRIMINAL INVESTIGATION
BUT NOT TO THOSE MADE IN AN ADMINISTRATIVE INVESTIGATION. —
We reject petitioners' argument that said admission is inadmissible as
evidence against them under Section 12, Article III of the 1987 Constitution.
The right to counsel under Section 12 of the Bill of Rights is meant to protect
a suspect in a criminal case under custodial investigation. Custodial
investigation is the stage where the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular
suspect who had been taken into custody by the police to carry out a process
of interrogation that lends itself to elicit incriminating statements. It is when
questions are initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way. The right to counsel attaches only upon the start of such
investigation. Therefore, the exclusionary rule under paragraph (3), Section
12 of the Bill of Rights applies only to admissions made in a criminal
investigation but not to those made in an administrative investigation.
5. ID.;ID.;ID.;ID.;ID.;PETITIONERS WERE NOT UNDER
CUSTODIAL INVESTIGATION AS THEY WERE NOT YET ACCUSED BY
THE POLICE OF COMMITTING A CRIME; THE FACT THAT THE
INVESTIGATION WAS CONDUCTED AT THE POLICE STATION DID NOT
NECESSARILY PUT PETITIONERS UNDER CUSTODIAL INVESTIGATION
AS THE VENUE OF THE INVESTIGATION WAS MERELY INCIDENTAL. —
In the case at bar, the admission was made by petitioners during the course
of the investigation conducted by private respondents' counsel to determine
whether there is sufficient ground to terminate their employment. Petitioners
were not under custodial investigation as they were not yet accused by the
police of committing a crime. The investigation was merely an administrative
investigation conducted by the employer, not a criminal investigation. The
questions were propounded by the employer's lawyer, not by police officers.
The fact that the investigation was conducted at the police station did not
necessarily put petitioners under custodial investigation as the venue of the
investigation was merely incidental. Hence, the admissions made by
petitioners during such investigation may be used as evidence to justify their
dismissal. IcHEaA
6. ID.;ID.;RIGHT TO DUE PROCESS; REQUIRED WRITTEN
NOTICES BEFORE TERMINATION OF EMPLOYMENT BE VALIDLY
EFFECTED; NOT OBSERVED BY EMPLOYER IN CASE AT BAR; AS A
CONSEQUENCE THEREOF, THE EMPLOYER MUST INDEMNIFY THE
DISMISSED EMPLOYEES. — Private respondents failed to observe due
process in terminating the employment of petitioners. Due process demands
that the employer should furnish the worker whose employment is sought to
be terminated a written notice containing a statement of the cause(s) for
termination and afford him ample opportunity to be heard and to defend
himself with the assistance of a representative if he so desires. Specifically,
the employer must furnish the worker with two written notices before
termination of employment can be legally effected: (1) notice which apprises
the employee of the particular acts or omissions for which his dismissal is
sought, and (2) the subsequent notice which informs the employee of the
employer's decision to dismiss him. There is no showing in this case that
private respondents furnished petitioners with such notices. Private
respondents, through their counsel, Atty. Reyes, immediately terminated
petitioners' services upon conclusion of the investigation. Private
respondents must therefore indemnify petitioners for failure to observe due
process before dismissing them from work. AaEcDS
DECISION
PUNO,  J p:
This special civil action for certiorari seeks to review the decision of
the National Labor Relations Commission (NLRC) dated June 27, 1996 in
NLRC-NCR-00-07-04925-95 entitled Eddie Manuel, Romeo Bana, Rogelio
Pagtama, Jr. and Joel Rea v. N.C. Construction Supply, Johnny Lim and
Anita Sy. 1
Petitioners Eddie Manuel, Romeo Bana, Rogelio Pagtama, Jr. and
Joel Rea were employed as drivers at N.C. Construction Supply owned by
private respondents Johnny Lim (a.k.a. Lao Ching Eng) and Anita Sy. prLL
On June 3, 1995, the security guards of respondent company caught
Aurelio Guevara, a company driver, and Jay Calso, his helper ("pahinante"),
taking out from the company premises two rolls of electrical wire worth
P500.00 without authority. Calso was brought to the Pasig Police station for
questioning. During the investigation, Calso named seven other employees
who were allegedly involved in a series of thefts at respondent company,
among them petitioners Manuel, Bana, Pagtama, Jr. and Rea. 2
On June 5, 1995, petitioners received separate notices from
respondent company informing them that they were positively identified by
their co-worker, Jay Calso, as perpetrators of the series of thefts committed
at respondent company. They were thus invited to the Pasig police station for
investigation regarding their alleged involvement in the offense.
Atty. Ramon Reyes, private respondents' counsel conducted in their
behalf an investigation regarding petitioners' involvement in the theft. Atty.
Reyes interrogated the petitioners on their alleged participation in the series
of thefts committed at respondent company. Petitioners initially denied the
charge. However, after being positively identified by Jay Calso, petitioners
admitted their guilt and offered to resign in exchange for the withdrawal of
any criminal charge against them. 3 Petitioners Bana and Rea filed separate
resignation letters while petitioners Manuel and Pagtama, Jr. tendered their
resignations orally. Petitioner Bana's resignation letter 4 reads:
 Hunyo 6, 1995
Dear Bong,
Sa ganitong sitwasyon nagpapasalamat rin ako na
humantong sa ganito para hindi na tumagal ang masama
naming gawain. Piro lubos rin ako nagpapasalamat sa
iyong pagpapatawad sa akin, at ang masasabi ko lang na
I'm very, very sorry na lang. Kasi alam mo naman na
kapos na kapos talaga ako. Kaya alam mo halos hindi na
nga ako nag-a-absent dahil sa sahod ko lang kapos pa sa
pamilya ko. Kaya sana sa pag-resign ko sana mabigyan
mo man lang ako nang kaunti para makapamasahi man
lang pau-wi sa Mindanao kasama ang mga anak ko. Yon
lang. ..
Gumagalang,
Boy
Petitioner Rea's resignation letter, 5 on the other hand, states:
Hunyo 6, 1995
Boss,
Dahil sa hindi maganda ang aking naging
performance sa inyo sa loob ng NC Construction Supply
sa nakakahiya na aking nasangkutan magreresign na ho
ako, magsisimula Hunyo 6, 1995. Siguro naman Boss
alam naman ninyo ang totoo nakikisama lang ako sa mga
dati ninyong tauhan dahil kailangan ko talaga ng trabaho
kahit labag man sa aking kalooban ang gumawa ng hindi
maganda.
Boss, kahit paano sana maintindihan mo ako,
tatanggalin nyo na ho ako sana bigyan nyo na lang ako ng
kahit pamasahe namin pauwing probinsya para
makapagbagong buhay na ako.
Salamat po.
Sumasainyo,
Joel Rea
Atty. Reyes accepted petitioners' resignation effective June 5, 1995.
On July 17, 1995, petitioners filed a complaint against private
respondents for illegal dismissal. Petitioners alleged that they were not
informed of the charge against them nor were they given an opportunity to
dispute the same. They also alleged that their admission made at the Pasig
police station regarding their involvement in the theft as well as their
resignation were not voluntary but were obtained by private respondents'
lawyer by means of threat and intimidation. dctai
Labor Arbiter Manuel R. Caday ruled in favor of petitioners and found
their dismissal to be illegal. He held that private respondents failed to show a
just cause for the termination of petitioners' services. He declared that
petitioners' admission regarding their involvement in the theft was
inadmissible in evidence as it was taken without the assistance of counsel, in
violation of Section 12 Article III of the 1987 Constitution. 6 He also held that
petitioners were not afforded due process before their services were
terminated. Hence, Labor Arbiter Caday ordered private respondents to
reinstate petitioners to their former position without loss of seniority rights
and to pay them full backwages. He also ordered private respondents to pay
petitioners their service incentive leave benefits plus attorney's fees. 7
On appeal, the NLRC reversed the decision of the Labor Arbiter. It
ruled that petitioners were dismissed for a just cause. It held that petitioners
failed to adduce competent evidence to show a vitiation of their admission
regarding their participation in the theft. It further stated that such admission
may be admitted in evidence because Section 12 Article III of the 1987
Constitution applies only to criminal proceedings but not to administrative
proceedings. The NLRC, however, agreed with the Labor Arbiter that
petitioners were denied due process. Hence, it ordered private respondents
to pay petitioners the amount of P1,000.00 as indemnity. The dispositive
portion of the decision reads:
WHEREFORE, premises duly considered, the
decision appealed from is hereby reversed and set aside.
A new one is hereby entered ordering respondents to pay
to the complainants the amount of P1,000.00 each as and
for indemnity for failure of the respondents to observe due
process.
SO ORDERED. 8
Petitioners filed the instant petition on the following grounds:
1. The National Labor Relations Commission committed
grave abuse of discretion in declaring the
dismissal legal;
2. The National Labor Relations Commission committed
grave abuse of discretion in declaring that the
admission of petitioners is admissible in evidence
despite the fact that it was obtained in a hostile
environment and without the presence or
assistance of counsel;
 3. The National Labor Relations Commission committed
grave abuse of discretion in finding that
respondents N.C. Construction Supply et. al. are
right in withdrawing their trust and confidence with
petitioners without any valid and legal basis. 9
We affirm the decision of the NLRC.
An employer has a right to terminate the services of an employee
subject to both substantive and procedural limitations. This means that (1)
the dismissal must be for a just or authorized cause provided in the Labor
Code, 10 and (2) the employee must be accorded due process before his
employment is terminated. The validity of the dismissal hinges on the
employer's compliance with these two requirements. 11
In the case at bar, petitioners who were employed as drivers at
respondent company were found guilty of stealing company property
consisting of electrical wire, welding rod, G.I. sheet, steel bar and plywood.
Article 282 of the Labor Code authorizes an employer to terminate the
services of an employee for loss of trust and confidence, provided that the
loss of confidence arises from particular proven facts. The law does not
require proof beyond reasonable doubt of the employee's misconduct.
Substantial evidence is sufficient. 12 Substantial evidence has been defined
as such relevant evidence which a reasonable mind might accept as
adequate to justify a conclusion. 13
Petitioners' culpability in the instant case was sufficiently proved by
private respondents. Jay Calso, an employee of respondent company who
has personal knowledge about the series of thefts that has been going on at
respondent company, positively identified petitioners as among the
perpetrators of the theft. Petitioners have not shown any ill motive on the part
of Calso to implicate them in the offense, unless it was true. In addition,
petitioners admitted their participation in the theft during an investigation
conducted by private respondents' lawyer. LLpr
We are not convinced by petitioners' allegation that such admission
was obtained by means of threat or intimidation as such allegation is
couched in general terms and is unsupported by evidence.
We also reject petitioners' argument that said admission is
inadmissible as evidence against them under Section 12 Article III of
the 1987 Constitution. The right to counsel under Section 12 of the Bill of
Rights is meant to protect a suspect in a criminal case under custodial
investigation. Custodial investigation is the stage where the police
investigation is no longer a general inquiry into an unsolved crime but has
begun to focus on a particular suspect who had been taken into custody by
the police to carry out a process of interrogation that lends itself to elicit
incriminating statements. It is when questions are initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. The right to counsel
attaches only upon the start of such investigation. 14 Therefore, the
exclusionary rule under paragraph (3) Section 12 of the Bill of Rights applies
only to admissions made in a criminal investigation but not to those made in
an administrative investigation.
In the case at bar, the admission was made by petitioners during the
course of the investigation conducted by private respondents' counsel to
determine whether there is sufficient ground to terminate their employment.
Petitioners were not under custodial investigation as they were not yet
accused by the police of committing a crime. The investigation was merely
an administrative investigation conducted by the employer, not a criminal
investigation. The questions were propounded by the employer's lawyer, not
by police officers. The fact that the investigation was conducted at the police
station did not necessarily put petitioners under custodial investigation as the
venue of the investigation was merely incidental. Hence, the admissions
made by petitioners during such investigation may be used as evidence to
justify their dismissal.
Private respondents, however, failed to observe due process in
terminating the employment of petitioners. Due process demands that the
employer should furnish the worker whose employment is sought to be
terminated a written notice containing a statement of the cause(s) for
termination and afford him ample opportunity to be heard and to defend
himself with the assistance of a representative if he so desires. Specifically,
the employer must furnish the worker with two written notices before
termination of employment can be legally effected: (1) notice which apprises
the employee of the particular acts or omissions for which his dismissal is
sought, and (2) the subsequent notice which informs the employee of the
employer's decision to dismiss him. 15 There is no showing in this case that
private respondents furnished petitioners with such notices. Private
respondents, through their counsel, Atty. Reyes, immediately terminated
petitioners' services upon conclusion of the investigation. Private
respondents must therefore indemnify petitioners for failure to observe due
process before dismissing them from work.
IN VIEW WHEREOF, the petition is DISMISSED. The assailed
decision is hereby AFFIRMED. No costs. aisadc
SO ORDERED.

[G.R. Nos. 170384-85. March 9, 2007.]
LORNA DISING PUNZAL,  petitioner, vs. ETSI
TECHNOLOGIES, INC., WERNER GEISERT, and
CARMELO D. REMUDARO,
Labor Law; Management Prerogative; It is settled that it is the prerogative of
management to regulate, according to its discretion and judgment, all aspects of
employment.—Petitioner sent the e-mail message in reaction to Geisert’s decision
which he had all the right to make. That it has been a tradition in ETSI to celebrate
occasions such as Christmas, birthdays, Halloween, and others does not remove
Geisert’s prerogative to approve or disapprove plans to hold such celebrations in
office premises and during company time. It is settled that x x x it is the prerogative
of management to regulate, according to its discretion and judgment, all aspects of
employment. This flows from the established rule that labor law does not authorize
the substitution of the judgment of the employer in the conduct of its business.
Such management prerogative may be availed of without fear of any liability so long
as it is exercised in good faith for the advancement of the employers’ interest and
not for the purpose of defeating or circumventing the rights of employees under
special laws or valid agreement and are not exercised in a malicious, harsh,
oppressive, vindictive or wanton manner or out of malice or spite.
Same; Same; Given the reasonableness of Geisert’s decision that provoked
petitioner to send the second e-mail message, the observations of the Court of
Appeals that the “message resounds of subversion and undermines the authority
and credibility of management” and that petitioner “displayed a tendency to act
without management’s approval, and even against management’s will” are well
taken.—Given the reasonableness of Geisert’s decision that provoked petitioner to
send the second e-mail message, the observations of the Court of Appeals that “the
message x x x resounds of subversion and undermines the authority and credibility
of management” and that petitioner “displayed a tendency to act without
management’s approval, and even against management’s will” are well taken.
Same; Employer-Employee Relationship; This Court found that the misconduct
committed was not related with the employee’s work as the offensive remarks
were verbally made during an informal Christmas gathering of the employees, an
occasion “where tongues are more often that not loosened by liquor or other
alcoholic beverages” and “it is to be expected that employees freely express their
grievances and gripes against their employers.”—Petitioner’s reliance on Samson is
misplaced. First, in that case, this Court found that the misconduct committed was
not related with the employee’s work as the offensive remarks were verbally made
during an informal Christmas gathering of the employees, an occasion “where
tongues are more often than not loosened by liquor or other alcoholic beverages”
and “it is to be expected x x x that employees freely express their grievances and
gripes against their employers.”
Same; Same; Dismissal of Employees; In Autobus Worker’s Union (AWU) v. NLRC
[291 SCRA 219 (1998)], where dismissal was held to be an appropriate penalty for
uttering insulting remarks to the supervisor.—In Samson, this Court found that
unlike in Autobus Workers’ Union (AWU) v. NLRC, 291 SCRA 219 (1998), where
dismissal was held to be an appropriate penalty for uttering insulting remarks to the
supervisor, Samson uttered the insulting words against EDT in the latter’s absence.
In the case at bar, while petitioner did not address her e-mail message to Geisert,
she circulated it knowing—or at least, with reason to know—hat it would reach
him. As ETSI notes, “[t]hat [petitioner] circulated this e-mail message with the
knowledge that it would reach the eyes of management may be reasonably
concluded given that the first e-mail message reached her immediate supervisor’s
attention.”
Same; Same; Same; Lack of urgency on the part of the respondent company in
taking any disciplinary action against [the employee] negates its charge that the
latter’s misbehavior constituted serious misconduct.—In Samson, this Court found
that the “lack of urgency on the part of the respondent company in taking any
disciplinary action against [the employee] negates its charge that the latter’s
misbehavior constituted serious misconduct.” In the case at bar, the management
acted 14 days after petitioner circulated the quoted e-mail message.
Same; Same; This Court has held, however, that the longer an employee stays in the
service of the company, the greater is his responsibility for knowledge and
compliance with the norms of conduct and the code of discipline in the company.—
Petitioner asks that her 12 years of service to ETSI during which, so she claims, she
committed no other offense be taken as a mitigating circumstance. This Court has
held, however, that “the longer an employee stays in the service of the company,
the greater is his responsibility for knowledge and compliance with the norms of
conduct and the code of discipline in the company.”
Same; Dismissal of Employees; Reinstatement; Petitioner, having been dismissed
for just cause, is neither entitled to reinstatement nor to backwages.—In fine,
petitioner, having been dismissed for just cause, is neither entitled to reinstatement
nor to backwages.
Same; Same; Damages; Following Agabon, et al. v. National Labor Relations
Commission [442 SCRA 240 (2004)], the violation of petitioner’s statutory due
process right entitles her to an award of nominal damage, which this Court fixes at
P30,000.—Following Agabon, et al. v. National Labor Relations Commission, 442
SCRA 240 (2004), the violation of petitioner’s statutory due process right entitles
her to an award of nominal damage, which this Court fixes at P30,000.
PETITION for review on certiorari of a decision of the Court of Appeals.
DECISION
CARPIO-MORALES, J  p:
Petitioner, Lorna Dising Punzal, had been working for respondent,
ETSI Technologies, Inc. (ETSI), for 12 years prior to the termination of her
services on November 26, 2001 on which date she was holding the position
of Department Secretary.
On October 30, 2001, petitioner sent an electronic mail (e-mail)
message to her officemates announcing the holding of a Halloween party
that was to be held in the office the following day. The e-mail message
read verbatim:
Dear ETSI-JMT Colleagues,
Good day!
As you all know, tomorrow is the day before
HALLOWEEN. And many of our kids will go around
"TRICK OR TREATING". We will be dressing them up in
costumes of all sorts, from cute to outrageous, from wild to
"scary." aAHSEC
What we want to have is a similar activity here in
the office. So we invite you to participate in this effort. You
can also dress your kids up in funny costumes. Also the
kids will then go around the office Trick or Treating. So, we
ask you to prepare your Treats, like candies, biscuits,
cookies, etc., (Cash is also welcome for parents like
me . . . he he he)
Why are we doing this? Well, we just want the kids
to have a good time. Kung gusto ninyo, mag-costume din
kayo.
Alright! See you tomorrow morning, [October 31,
2001]. 1 (Underscoring supplied)
Petitioner's immediate superior, respondent Carmelo Remudaro
(Remudaro), who was one of those to whom the e-mail message was sent,
advised petitioner to first secure the approval of the Senior Vice President,
respondent Werner Geisert (Geisert), for the holding of the party in the
office. TDESCa
Petitioner soon learned that Geisert did not approve of the plan to
hold a party in the office. She thereupon sent also on October 30, 2001
another e-mail message to her officemates, reading verbatim:
Sorry for the mail that I sent you, unfortunately the
SVP of ETSI Technologies, Inc. did not agree to our idea
to bring our children in the office for the TRICK or
TREATING. He was so unfair. . . para bang palagi siyang
iniisahan sa trabaho. . . bakit most of the parents na mag-
joined ang anak ay naka-VL naman. Anyway, solohin na
lang niya bukas ang office.
Anyway, to those parents who would like to bring
their Kids in Megamall there will be Trick or Treating at Mc
Donalds Megamall Bldg. A at 10:00 AM tomorrow and let's
not spoil the fun for our kids. 2 (Underscoring supplied)
Remudaro and Arnold Z. David (David), the Assistant Vice President
of Human Resources/TQM of ETSI, later informed petitioner, by letter of
November 13, 2001, that Geisert got a copy of her e-mail message and that
he required her to explain in writing within 48 hours why she
. . . should not be given disciplinary action for
committing Article IV, No. 5 & 8 Improper conduct or
acts of discourtesy or disrespect and Making
malicious statements concerning Company Officer,
whereby such offenses may be subject to suspension to
termination depending upon the gravity of the offense/s as
specified in our  ETSI's Code of Conduct and
Discipline. 3 (Emphasis in the original)
Petitioner replied by letter of November 14, 2001 that she had no
malicious intention in sending the second e-mail message and that she
"never expected such kind of words can be called as 'acts of discourtesy or
disrespect.'" 4 aECSHI
On November 19, 2001, Geisert and Remudaro conferred with
petitioner to give her a chance to explain her side. 5
David and Remudaro subsequently sent petitioner a letter on
November 26, 2001, finding her explanation "not acceptable" and terminating
her services, effective immediately, "for committing Article IV, No[s]. 5 & 8,
Improper conduct or act of discourtesy or disrespect and making malicious
statements concerning company officer." 6
On February 11, 2002, petitioner filed before the National Labor
Relations Commission (NLRC) a complaint 7 for illegal dismissal against
ETSI, Geisert, and Remudaro.
By Order of November 26, 2002, the Labor Arbiter dismissed
petitioner's complaint, finding that she was legally dismissed for serious
misconduct, and that she was afforded due process. 8 IHaSED
On petitioner's appeal, the NLRC, by Resolution 9 dated October 27,
2003, found that while she was indeed guilty of misconduct, the penalty of
dismissal was disproportionate to her infraction. 10 The NLRC thus ordered
that petitioner was entitled to reinstatement which, however, was no longer
feasible due to strained relations. The NLRC thus ordered that petitioner be
awarded separation pay equivalent to one month pay for every year of
service, a period of at least six months to be considered one whole year. 11
Noting that petitioner was not entirely faultless, the NLRC denied her
prayer for backwages 12 as well as her prayer for exemplary and moral
damages and attorney's fees in the absence of the legal conditions justifying
their award. 13
Both parties filed their respective motions for
reconsideration 14 which the NLRC denied. 15 Both parties thereupon filed
their respective petitions for certiorari 16 with the Court of Appeals. ATcEDS
In the petition of petitioner, docketed as CA-G.R. SP No. 83296, she
questioned the denial of her prayer for backwages. 17 Upon the other hand,
in the petition of respondent ETSI, et al., docketed as CA-G.R. SP No.
83205, they questioned the finding of illegal dismissal, the grant of separation
pay, and the imputation of liability to Geisert and Remudaro. 18
In her comment to the petition of ETSI, et al. in CA-G.R. SP No.
83205, petitioner raised the issue of due process, alleging that her employer
did not inform her of her right to be assisted by counsel during the
conference with respondents Geisert and Remudaro. 19
By Decision 20 of May 13, 2005, the Court of Appeals, which priorly
consolidated the petitions of both parties, held that petitioner's dismissal was
in order: 21
The gravity of Punzal's infraction is borne by the
fact that her e-mail message to the workers of
ETSI tended to cast scorn and disrespect toward a senior
vice president of the company. The message
itself resounds of subversion and undermines the authority
and credibility of management.
xxx xxx xxx
Also, this message was not a mere expression of
dissatisfaction privately made by one person to another,
but was circulated to everyone in the work area. The
message was sent close at the heels of SVP Geisert's
disapproval of Punzal's plan to hold a Halloween affair in
the office, because the said event would disrupt the
operations and peace and order in the office. Punzal
therefore displayed a tendency to act without
management's approval, and even against management's
will, as she invited her co-workers to join a trick or treating
activity at another venue during office hours. aEAIDH
The message also comes across as an
encouragement to ignore SVP Geisert's authority, and
portrayed him as unworthy of respect because of his
unpopular personality. THEDCA
This is in clear violation of Article IV, Section 5 of
the company's Code of Conduct and Discipline, which
clearly imposes the penalty of "suspension to dismissal,
depending upon the gravity of the offense" in cases where
an employee displays "improper conduct or acts of
discourtesy or disrespect to fellow employees, visitors,
guests, clients, at any time."
The imposition of the penalty of dismissal is
proper, because of the gravity of Punzal's misconduct, as
earlier pointed out, and considering that:
(1) Punzal's statements were discourteous and
disrespectful not only to a mere co-
employee, but to a high ranking executive
official of the company;
(2) Punzal's statements tended to ridicule and
undermine the credibility and authority of
SVP Geisert, and even encouraged
disobedience to the said officer;
(3) Punzal's message was sent to a great number
of employees of ETSI, which tended to
sow dissent and disrespect to
management among a great number of
employees of ETSI;
(4) Punzal's message could not have been made
in good faith, because the message itself
 used language that placed SVP Geisert in
ridicule and portrayed him as an object of
scorn, betraying the sender's bad
faith. CSaHDT
Given these circumstances, the fact that Punzal's
infraction occurred only once should be largely
insignificant. The gravity and publicity of the offense as
well as its adverse impact in the workplace is more than
sufficient to place the same in the level of a serious
misconduct. 22 (Underscoring supplied)
Contrary to petitioner's contention, the Court of Appeals also found
that due process was observed in her dismissal. 23
The Court of Appeals thus reinstated the Labor Arbiter's Order. Thus
it disposed:
WHEREFORE, premises considered, the petition
filed by Lorna Dising Punzal in CA-G.R. SP No. 83296 is
hereby DISMISSED, while the petition filed by ETSI,
Werner Geisert and Carmelo D. Remudaro is hereby
GRANTED. The assailed Resolutions, dated October 27,
2003 and January 28, 2004, of the respondent National
Labor Relations Commission are hereby SET ASIDE. In
lieu thereof, the Decision of Labor Arbiter Joel S. Lustria,
dated November 26, 2002, dismissing the complaint filed
by Lorna Dising Punzal is hereby REINSTATED. DAETcC
SO ORDERED. 24 (Underscoring supplied)
Hence, petitioner's present Petition for Review
on Certiorari, 25 faulting the appellate court to have erred
. . . WHEN IT RULED THAT PETITIONER'S STATEMENT
WAS DISCOURTEOUS AND DISRESPECTFUL
CONSTITUTING GROSS DISRESPECT AND SERIOUS
MISCONDUCT;
. . . WHEN IT FOUND THAT DUE PROCESS WAS
ACCORDED THE PETITIONER;
. . . WHEN IT FAILED TO AWARD THE PETITIONER
HER RIGHT TO REINSTATEMENT AND
BACKWAGES. 26
Petitioner posits that her second e-mail message was merely an
exercise of her right to freedom of expression without any malice on her
part. 27 EaCDAT
On the other hand, ETSI, et al. maintain that petitioner's second e-
mail message was tainted with bad faith and constituted a grave violation of
the company's code of discipline. 28
In Philippines Today, Inc. v. NLRC, 29 this Court, passing on the
attitude or respect that an employee is expected to observe towards an
employer, held:
Alegre's choice of words and way of expression
betray his allegation that the memorandum was simply an
"opportunity to open the eyes of (Petitioner) Belmonte to
the work environment in petitioner's newspaper with the
end in view of persuading (her) to take a hand at improving
said environment." Apprising his employer (or top-level
management) of his frustrations in his job and differences
with his immediate superior is certainly not done in an
abrasive, offensive, and disrespectful manner. A cordial or,
at the very least, civil attitude, according due deference to
one's superiors, is still observed, especially among high-
ranking management officers. The Court takes judicial
notice of the Filipino values
of pakikisama and paggalang which are not only prevalent
among members of a family and community but within
organizations as well, including work sites. An employee is
expected to extend due respect to management, the
employer being the "proverbial hen that lays the golden
egg," so to speak. An aggrieved employee who wants to
unburden himself of his disappointments and frustrations
in his job or relations with his immediate superior would
normally approach said superior directly or otherwise ask
some other officer possibly to mediate and discuss the
problem with the end in view of settling their differences
without causing ferocious conflicts. No matter how [much]
the employee dislikes the employer professionally, and
even if he is in a confrontational disposition, he cannot
afford to be disrespectful and dare to talk with an
unguarded tongue and/or with a bileful
pen. 30 (Underscoring supplied)
A scrutiny of petitioner's second e-mail message shows that her
remarks were not merely an expression of her opinion about Geisert's
decision; they were directed against Geisert himself, viz: "He was so unfair . .
.  para bang palagi siyang iniisahan sa trabaho. . . Anyway, solohin na
lang niya bukas ang office." (Emphasis supplied) 31
As the Court of Appeals noted, petitioner, in her closing statement —
"Anyway, to those parents who would like to bring their Kids in Megamall
there will be Trick or Treating at Mc Donalds . . . tomorrow and let's not spoil
the fun for our kids" 32 — even invited her co-workers to join a trick or
treating activity at another venue during office hours 33 (10:00 AM), October
31, 2001 being a Wednesday and there is no showing that it was declared a
holiday, encouraging them to ignore Geisert's authority. SIcCTD
Additionally, petitioner sent the e-mail message in reaction to
Geisert's decision which he had all the right to make. That it has been a
tradition in ETSI to celebrate occasions such as Christmas, birthdays,
Halloween, and others 34 does not remove Geisert's prerogative to approve
or disapprove plans to hold such celebrations in office premises and during
company time. It is settled that
. . . it is the prerogative of management to
regulate, according to its discretion and judgment, all
aspects of employment. This flows from the established
rule that labor law does not authorize the substitution of
the judgment of the employer in the conduct of its
business. Such management prerogative may be availed
of without fear of any liability so long as it is exercised in
good faith for the advancement of the employers' interest
and not for the purpose of defeating or circumventing the
rights of employees under special laws or valid agreement
and are not exercised in a malicious, harsh, oppressive,
vindictive or wanton manner or out of malice or
spite. 35 (Underscoring supplied) DEcTCa
In the case at bar, the disapproval of the plan to hold the Halloween party
on October 31, 2001 may not be considered to have been actuated by
bad faith. As the Labor Arbiter noted:
It may not be ignored that holding a trick or treat
party in the office premises of respondent ETSI would
certainly affect the operations of the office, since children
will be freely roaming around the office premises, things
may get misplaced and the noise in the office will simply
be too hard to ignore. Contrary to complainant's position, it
is immaterial if the parents of the children who will
participate in the trick or treat will be on vacation leave,
since it is the work of the employees who will not be on
leave and who will be working on that day which will be
disrupted, possibly resulting in the disruption of the
operations of the company. 36 (Underscoring supplied)
Given the reasonableness of Geisert's decision that provoked
petitioner to send the second e-mail message, the observations of the Court
of Appeals that "the message . . . resounds of subversion and undermines
the authority and credibility of management" 37 and that petitioner "displayed
a tendency to act without management's approval, and even against
management's will" are well taken. 38
Moreover, in circulating the second e-mail message, petitioner
violated Articles III (8) and IV (5) of ETSI's Code of Conduct on "making false
or malicious statements concerning the Company, its officers and employees
or its products and services " 39 and "improper conduct or acts of
discourtesy or disrespect to fellow employees, visitors, guests, clients, at any
time." 40
Petitioner invokes Samson v. National Labor Relations
Commission 41 where this Court held that the dismissal of the therein
petitioner was too harsh a penalty for uttering "Si EDT  [Epitacio D. Titong,
the General Manager and President of the employer], bullshit yan," "sabihin
mo kay EDT yan" and "sabihin mo kay EDT, bullshit yan," while making the
"dirty finger" gesture, and warning that the forthcoming national sales
conference of the company would be a "very bloody one."
Petitioner's reliance on Samson is misplaced. First, in that case, this
Court found that the misconduct committed was not related with the
employee's work as the offensive remarks were verbally made during an
informal Christmas gathering of the employees, an occasion "where tongues
are more often than not loosened by liquor or other alcoholic
beverages" 42 and "it is to be expected . . . that employees freely express
their grievances and gripes against their employers." 43
In petitioner's case, her assailed conduct was related to her work. It
reflects an unwillingness to comply with reasonable management
directives. IDAaCc
While in Samson, Samson was held to be merely expressing his
dissatisfaction over a management decision, 44 in this case, as earlier
shown, petitioner's offensive remarks were directed against Geisert.
Additionally, in Samson, this Court found that unlike in  Autobus
Workers' Union (AWU) v. NLRC 45 where dismissal was held to be an
appropriate penalty for uttering insulting remarks to the
supervisor, 46 Samson uttered the insulting words against EDT in the latter's
absence. 47 In the case at bar, while petitioner did not address her e-mail
message to Geisert, she circulated it knowing — or at least, with reason to
know — that it would reach him. As ETSI notes, "[t]hat [petitioner] circulated
this e-mail message with the knowledge that it would reach the eyes of
management may be reasonably concluded given that the first e-mail
message reached her immediate supervisor's attention." 48
Finally, in Samson, this Court found that the "lack of urgency on the
part of the respondent company in taking any disciplinary action against [the
employee] negates its charge that the latter's misbehavior constituted serious
misconduct." 49 In the case at bar, the management acted 14 days after
petitioner circulated the quoted e-mail message. 50 TSIDaH
Petitioner asks that her 12 years of service to ETSI during which, so
she claims, she committed no other offense be taken as a mitigating
circumstance. 51 This Court has held, however, that "the longer an employee
stays in the service of the company, the greater is his responsibility for
knowledge and compliance with the norms of conduct and the code of
discipline in the company." 52
In fine, petitioner, having been dismissed for just cause, is neither
entitled to reinstatement nor to backwages.
Petitioner's contention that she was denied due process is well-taken
however, as the records do not show that she was informed of her right to be
represented by counsel during the conference with Geisert and
Remudaro. ASTcaE
The protestations of ETSI, et al. that the right to be informed of the
right to counsel does not apply to investigations before administrative bodies
and that law and jurisprudence merely give the employee the option to
secure the services of counsel in a hearing or conference 53 fall in light of
the clear provision of Article 277 (b) of the Labor Code that
the employer . . . shall afford [the worker whose
employment is sought to be terminated] ample opportunity
to be heard and to defend himself with the assistance of
his representatives if he so desires in accordance with
company rules and regulations pursuant to guidelines set
by the Department of Labor and Employment,
and this Court's explicit pronouncement that "[a]mple opportunity
connotes every kind of assistance that management must accord the
employee to enable him to prepare adequately for his defense including
legal representation." 54
Following Agabon, et al. v. National Labor Relations
Commission, 55 the violation of petitioner's statutory due process right
entitles her to an award of nominal damage, which this Court fixes at
P30,000. 56
WHEREFORE, the petition is in part GRANTED. The questioned
decision is AFFIRMED with the MODIFICATION that respondent ETSI
Technologies, Inc. is ordered to pay petitioner, Lorna Punzal, nominal
damages in the amount of P30,000. aSTECI
SO ORDERED.
[G.R. No. 191008. April 11, 2011.]
QUIRICO LOPEZ,  petitioner, vs. ALTURAS GROUP OF
COMPANIES and/or MARLITO UY,  respondents.
Syllabi:
1. Labor Law;  Termination of Employment;  Due Process; Dismissals
have two facets: the legality of the act of dismissal, which constitutes
substantive due process, and the legality of the manner of dismissal which
constitutes procedural due process.-
—Dismissals have two facets: the legality of the act of dismissal, which
constitutes substantive due process, and the legality of the manner of
dismissal which constitutes procedural due process. As to substantive due
process, the Court finds that respondent company’s loss of trust and
confidence arising from petitioner’s smuggling out of the scrap iron,
conpounded by his past acts of unauthorized selling cartons belonging to
respondent company, constituted just cause for terminating his services.
2. Same;  Same;  Right to Counsel;  The right to counsel and the assistance
of one in investigations involving termination cases is neither indispensable
nor mandatory, except when the employee himself requests for one or that
he manifests that he wants a formal hearing on the charges against him.-
—The right to counsel and the assistance of one in investigations involving
termination cases is neither indispensable nor mandatory, except when the
employee himself requests for one or that he manifests that he wants a
formal hearing on the charges against him. In petitioner’s case, there is no
showing that he requested for a formal hearing to be conducted or that he be
assisted by counsel. Verily, since he was furnished a second notice
informing him of his dismissal and the grounds therefor, the twin-notice
requirement had been complied with to call for a deletion of the appellate
court’s award of nominal damages to petitioner.
DECISION
CARPIO MORALES, J  p:
Quirico Lopez (petitioner) was hired by respondent Alturas
Group of Companies in 1997 as truck driver. Ten years later or sometime
in November 2007, he was dismissed after he was allegedly caught by
respondent's security guard in the act of attempting to smuggle out of the
company premises 60 kilos of scrap iron worth P840 aboard
respondents' Isuzu Cargo Aluminum Van with Plate Number PHP271
that was then assigned to him. When questioned, petitioner allegedly
admitted to the security guard that he was taking out the scrap iron
consisting of lift springs out of which he would make axes.
Petitioner, in compliance with the Show Cause Notice 1 dated
December 5, 2007 issued by respondent company's Human Resource
Department Manager, denied the allegations by a handwritten
explanation written in the Visayan dialect.
Finding petitioner's explanation unsatisfactory, respondent
company terminated his employment by Notice of Termination 2 effective
December 14, 2007 on the grounds of loss of trust and confidence, and
of violation of company rules and regulations. In issuing the Notice,
respondent company also took into account the result of an investigation
showing that petitioner had been smuggling out its cartons which he had
sold, in conspiracy with one Maritess Alaba, for his own benefit to thus
prompt it to file a criminal case for Qualified Theft 3 against him before
the Regional Trial Court (RTC) of Bohol. It had in fact earlier filed another
criminal case for Qualified Theft 4 against petitioner arising from the theft
of the scrap iron.
Petitioner thereupon filed a complaint against respondent
company for illegal dismissal and underpayment of wages. He claimed
that the smuggling charge against him was fabricated to justify his illegal
dismissal; that the filing of the charge came about after he reported the
loss of the original copy of his pay slip, which report, he went on to claim,
respondent company took to mean that he could use the pay slip as
evidence for filing a complaint for violation of labor laws; and that on
account of the immediately stated concern of respondent, it forced him
into executing an affidavit that if the pay slip is eventually found, it could
not be used in any proceedings between them. DEICTS
By Decision 5 of June 30, 2008, the Labor Arbiter, holding that
the pendency of the criminal case involving the scrap iron did not warrant
the suspension of the proceedings before him, held that petitioner's
dismissal was justified, for he, a truck driver, held a position of trust and
confidence, and his act of stealing company property was a violation of
the trust reposed upon him.
Respecting the charge of underpayment of wages, the Labor
Arbiter noted that on the basis of the records, petitioner had been paid
the correct wages and benefits mandated by law.
The Labor Arbiter accordingly dismissed petitioner's complaint.
On appeal, the National Labor Relations Commission's (NLRC)
Fourth Division (Cebu City) set aside the Labor Arbiter's Decision by
Decision 6 dated December 22, 2008, finding that respondent's evidence
did not suffice to warrant the termination of petitioner's services; and that
petitioner's alleged admission of taking the scrap iron was belied by his
vehement denial, as even the security guard, one Gerardo Luega, who
allegedly witnessed the asportation and before whom the alleged
admission was made, did not even execute an affidavit in support
thereof.
Citing Salaw v. NLRC, 7 the NLRC went on to hold that petitioner
should have been afforded, or at least advised of the right to counsel. It
thus held that "any evaluation which was based only on the explanation
to the show-cause letter and any so-called investigation but without
confrontation of the vital witnesses, do[es] not suffice."
Respondent company's motion for reconsideration was denied
by Resolution 8 of April 30, 2009, hence, it appealed to the Court of
Appeals.
By Report 9 of December 18, 2009, the appellate
court reversed the NLRC ruling. It held that respondent company was
justified in terminating petitioner's employment on the ground of loss of
trust and confidence, his alleged act of smuggling out the scrap iron
having been sufficiently established through the affidavits of Patrocinio
Borja and Zalde Tare, supervisor and junior supervisor, respectively, of
its Supermarket Motorpool.
The appellate court further held that "the evidence supporting the
criminal charge, found after preliminary investigation are [sic] sufficient to
show prima facie guilt, which constitutes just cause for [petitioner's
dismissal] based on loss of trust and confidence"; and that petitioner's
subsequent acquittal in the criminal case "did not automatically preclude
a determination that he is guilty of acts inimical to the employer's interest
resulting in loss of trust and confidence."
Albeit the appellate court found that petitioner's dismissal was for
a just cause, it held that due process was not observed when respondent
company failed to give him a chance to defend his side in a proper
hearing. Following Agabon v. NLRC, 10 the appellate court thus ordered
respondent to pay nominal damages of P30,000.
Thus the appellate court disposed: AHCaED
WHEREFORE, in view of the foregoing, the
Decision of the NLRC dated December 22, 2008 is
hereby MODIFIED. Private respondent's dismissal from
employment is upheld on the ground of loss of trust and
confidence, a just cause for termination. However, for
failure to comply fully with the procedural due
 process, petitioner is ORDERED to pay private respondent
the amount of P30,000.00 as nominal
damages. 11 (underscoring supplied)
Hence, the present petition for review on certiorari.
Dismissals have two facets: the legality of the act  of dismissal,
which constitutes substantive due process, and the legality of
the manner  of dismissal which constitutes procedural due process. 12
As to substantive due process, the Court finds that respondent
company's loss of trust and confidence arising from petitioner's
smuggling out of the scrap iron, compounded by his past acts of
unauthorized selling cartons belonging to respondent company,
constituted just cause for terminating his services.
Loss of trust and confidence as a ground for dismissal of
employees covers employees occupying a position of trust who are
proven to have breached the trust and confidence reposed on
them.  Apropos  is Cruz v. Court of Appeals 13 which explains the basis
and quantum of evidence of loss of trust and confidence, viz.:
In addition, the language of Article 282(c) of the Labor
Code states that the loss of trust and confidence must be based
on willful breach of the trust reposed in the employee by his
employer. Such breach is willful if it is done intentionally,
knowingly, and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly,
heedlessly or inadvertently. Moreover, it must be based
on substantial evidence and not on the employer's whims or
caprices or suspicions otherwise, the employee would eternally
remain at the mercy of the employer. Loss of confidence must
not be indiscriminately used as a shield by the employer against
a claim that the dismissal of an employee was arbitrary. And, in
order to constitute a just cause for dismissal, the act
complained of must be work-related and shows that the
employee concerned is unfit to continue working for the
employer. In addition, loss of confidence as a just cause for
termination of employment is premised on the fact that the
employee concerned holds a position of responsibility, trust
and confidence or that the employee concerned is entrusted with
confidence with respect to delicate matters, such as
the handling or care and protection of the property and
assets of the employer. The betrayal of this trust is the essence
of the offense for which an employee is penalized. (emphasis
and underscoring supplied)
Petitioner, a driver assigned with a specific vehicle, was
entrusted with the transportation of respondent company's goods and
property, and consequently with its handling and protection, hence, even
if he did not occupy a managerial position, he can be said to be holding a
position of responsibility. As to his act — principal ground for his
dismissal — his attempt to smuggle out the scrap iron belonging to
respondent company, the same is undoubtedly work-related. HIAcCD
Respondent company's charge against petitioner was amply
proven by substantial evidence consisting of the affidavits of various
employees of respondent. Contrary to the NLRC's observation, the
security guard who apprehended petitioner, Gerardo Luega, actually
executed a statement 14 relative to the smuggling out of scrap iron,
which was attached to, and served as basis for the filing of, the
corresponding complaint for Qualified Theft. Petitioner's claim that he
was framed up after he allegedly lost his pay slip to draw respondent
company to suspect that he might file a labor complaint for
underpayment does not inspire credence.
It is, however, with respect to the appellate court's finding that
petitioner was not afforded procedural due process that the Court
deviates from. Procedural due process has been defined as giving an
opportunity to be heard before judgment is rendered. 15 In termination
cases,  Perez v. Philippine Telegraph and Telephone
Company, 16 illuminates on the correct proceedings to be followed
therein in order to comply with the due process requirement:
The above rulings are a clear recognition that the
employer may provide an employee with ample opportunity to be
heard and defend himself with the assistance of a representative
or counsel in ways other than a formal hearing. The employee
can be fully afforded a chance to respond to the charges against
him, adduce his evidence or rebut the evidence against him
through a wide array of methods, verbal or written.  
After receiving the first notice apprising him of the
charges against him, the employee may submit a written
explanation (which may be in the form of a letter, memorandum,
affidavit or position paper) and offer evidence in support
thereof, like relevant company records (such as his 201 file and
daily time records) and the sworn statements of his
witnesses. For this purpose, he may prepare his explanation
personally or with the assistance of a representative or
counsel. He may also ask the employer to provide him copy
of records material to his defense. His written explanation
may also include a request that a formal hearing or
conference be held. In such a case, the conduct of a formal
hearing or conference becomes mandatory, just as it is
where there exist substantial evidentiary disputes or where
company rules or practice requires an actual hearing as part
of employment pretermination procedure. (emphasis and
underscoring supplied)
Petitioner was given the opportunity to explain his side when he
was informed of the charge against him and required to submit his
written explanation with which he complied. That there might have been
no hearing is of no moment, for as  Autobus Workers' Union v.
NLRC 17 holds:
This Court has held that there is no violation of due
process even if no hearing was conducted, where the party
was given a chance to explain his side of the controversy.
What is frowned upon is the denial of the opportunity to be heard.
(emphasis supplied) aSTECA
Parenthetically, the Court finds that it was error for the NLRC to
opine that petitioner should have been afforded counsel or advised of the
right to counsel. The right to counsel and the assistance of one in
investigations involving termination cases is neither indispensable nor
mandatory, except when the employee himself requests for one or that
he manifests that he wants a formal hearing on the charges against him.
In petitioner's case, there is no showing that he requested for a formal
hearing to be conducted or that he be assisted by counsel. Verily, since
he was furnished a second notice informing him of his dismissal and the
grounds therefor, the twin-notice requirement had been complied with to
call for a deletion of the appellate court's award of nominal damages to
petitioner.
As for the subsequent dismissal of the criminal cases 18 filed
against petitioner, criminal and labor proceedings are distinct and
separate from each other. Each requires a different quantum of proof,
arising though they are from the same set of facts or circumstances.
As Vergara v. NLRC 19 holds:
An employee's acquittal in a criminal case does
not automatically preclude a determination that he has
been guilty of acts inimical to the employer's interest
resulting in loss of trust and confidence. Corollarily, the
ground for the dismissal of an employee does not require
proof beyond reasonable doubt; as noted earlier, the
quantum of proof required is merely substantial evidence.
More importantly, the trial court acquitted petitioner not
because he did not commit the offense, but merely
because of the failure of the prosecution to prove his guilt
beyond reasonable doubt. In other words, while the
evidence presented against petitioner did not satisfy
the quantum of proof required for conviction in a
criminal case, it substantially proved his culpability
which warranted his dismissal from
employment. (emphasis supplied)
WHEREFORE, the petition is DENIED. The Report dated
December 18, 2009 of the Court of Appeals dismissing petitioner's
complaint is AFFIRMED with MODIFICATION in that the award of
nominal damages in the amount of P30,000 is DELETED.
Costs against petitioner.
SO ORDERED.
|||  (Lopez v. Alturas Group of Companies, G.R. No. 191008, [April 11, 2011],
663 PHIL 121-131)
ARSENIO PASCUAL, JR.,  petitioner-
appellee, vs. BOARD OF MEDICAL
EXAMINERS, respondent-appellant, SALVADOR
GATBONTON and ENRIQUETA
GATBONTON, intervenors-appellants.
Conrado B. Enriquez  for petitioner-appellee.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General
Antonio A. Torres and  Solicitor Pedro A. Ramirez  for respondent-
appellant.
Bausa, Ampil & Suarez  for intervenors-appellants.
SYLLABUS
1. CONSTITUTIONAL LAW; RIGHTS OF AN ACCUSED; RIGHT
AGAINST SELF- INCRIMINATION; APPLICABILITY THEREOF IN
ADMINISTRATIVE PROCEEDINGS. — Where petitioner was the
respondent in the malpractice charge filed against him with the Board of
Medical Examiners, the said Board cannot compel him to take the
witness stand as a witness for the complainants. The principle against
self-incrimination is equally applicable to a proceeding that could possibly
result in the loss of the privilege to practice the medical profession.
2. ID.; ID.; ID.; RIGHT INCLUDES RIGHT TO SILENCE. — The
constitutional guarantee against self-incrimination is not limited to that of
allowing a witness to object to questions the answers to which could lead
to a penal liability being subsequently incurred. The constitutional
guarantee protects as well the right to silence.
 3. ID.; ID.; ID.; ID.; REASON. — Why the constitutional
guarantee against self-incrimination protects as well the right to silence
should be thus is not difficult to discern. The constitutional guarantee,
along with other rights granted an accused, stands for a belief that while
crime should not go unpunished and that the truth must be revealed,
such desirable objectives should not be accomplished according to
means or methods offensive to the high sense of respect accorded the
human personality. More and more in line with the democratic creed, the
deference accorded an individual even those suspected of the most
heinous crimes is given due weight.
4. ID.; ID.; ID.; SAID RIGHT IS IDENTIFIED WITH RIGHT TO
PRIVACY. — It is of interest to note that while earlier decisions stressed
the principle of humanity on which the right against self-incrimination is
predicated, precluding as it does all resort to force or compulsion,
whether physical or mental, current judicial opinion places equal
emphasis on its identification with the right to privacy.
DECISION
FERNANDO, J  p:
The broad, all-embracing sweep of the self-incrimination
clause, 1 whenever appropriately invoked, has been accorded due
recognition by this Court ever since the adoption of the
Constitution. 2 Bermudez v. Castillo, 3 decided in 1937, was quite
categorical. As we there stated: "This Court is of the opinion that in order
that the constitutional provision under consideration may prove to be a
real protection and not a dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it." As phrased by Justice
Laurel in his concurring opinion: "The provision, as doubtless it was
designed, would be construed with the utmost liberality in favor of the
right of the individual intended to be served." 4
Even more relevant, considering the precise point at issue, is the
recent case of Cabal v. Kapunan, 5 where it was held that a respondent
in an administrative proceeding under the Anti-Graft Law 6 cannot be
required to take the witness stand at the instance of the complainant. So
it must be in this case, where petitioner was sustained by the lower court
in his plea that he could not be compelled to be the first witness of
the  complainants, he being the party proceeded against in an
administrative charge for malpractice. That was a correct decision; we
affirm it on appeal.
Arsenio Pascual, Jr., petitioner-appellee, filed on February 1,
1965 with the Court of First Instance of Manila an action for prohibition
with prayer for preliminary injunction against the Board of Medical
Examiners, now respondent-appellant. It was alleged therein that at the
initial hearing of an administrative case 7 for alleged immorality, counsel
for complainants announced that he would present as his first witness
herein petitioner-appellee, who was the respondent in such malpractice
charge. Thereupon, petitioner-appellee, through counsel, made of record
his objection, relying on the constitutional right to be exempt from being a
witness against himself. Respondent-appellant, the Board of Examiners,
took note of such a plea, at the same time stating that at the next
scheduled hearing, on February 12, 1965, petitioner-appellee would be
called upon to testify as such witness, unless in the meantime he could
secure a restraining order from a competent authority.
Petitioner-appellee then alleged that in thus ruling to compel him
to take the witness stand, the Board of Examiners was guilty, at the very
least, of grave abuse of discretion for failure to respect the constitutional
right against self-incrimination, the administrative proceeding against
him, which could result in forfeiture or loss of a privilege, being quasi-
criminal in character. With his assertion that he was entitled to the relief
demanded consisting of perpetually restraining the respondent Board
from compelling him to testify as witness for his adversary and his
readiness or his willingness to put a bond, he prayed for a writ of
preliminary injunction and after a hearing or trial, for a writ of prohibition.
On February 9, 1965, the lower court ordered that a writ of
preliminary injunction issue against the respondent Board commanding it
to refrain from hearing or further proceeding with such an administrative
case, to await the judicial disposition of the matter upon petitioner-
appellee posting a bond in the amount of P500.00.
The answer of respondent Board, while admitting the facts
stressed that it could call petitioner-appellee to the witness stand and
interrogate him, the right against self-incrimination being available only
when a question calling for an incriminating answer is asked of a witness.
It further elaborated the matter in the affirmative defenses interposed,
stating that petitioner-appellee's remedy is to object once he is in the
witness stand, for respondent "a plain, speedy and adequate remedy in
the ordinary course of law," precluding the issuance of the relief sought.
Respondent Board, therefore, denied that it acted with grave abuse of
discretion.
There was a motion for intervention by Salvador Gatbonton and
Enriqueta Gatbonton, the complainants in the administrative case for
malpractice against petitioner-appellee, asking that they be allowed to file
an answer as intervenors. Such a motion was granted and an answer in
intervention was duly filed by them on March 23, 1965 sustaining the
power of respondent Board, which for them is limited to compelling the
witness to take the stand, to be distinguished, in their opinion, from the
power to compel a witness to incriminate himself. They likewise alleged
that the right against self- incrimination cannot be availed of in an
administrative hearing.
 A decision was rendered by the lower court on August 2, 1965,
finding the claim of petitioner-appellee to be well-founded and prohibiting
respondent Board "from compelling the petitioner to act and testify as a
witness for the complainant in said investigation without his consent and
against himself." Hence this appeal both by respondent Board and
intervenors, the Gatbontons. As noted at the outset, we find for the
petitioner-appellee.
1.We affirm the lower court decision on appeal as it does
manifest fealty to the principle announced by us in
Cabal v. Kapunan. 8 In that proceeding for certiorari and prohibition to
annul an order of Judge Kapunan, it appeared that an administrative
charge for unexplained wealth having been filed against petitioner under
the Anti-Graft Act, 9 the complainant requested the investigating
committee that petitioner be ordered to take the witness stand, which
request was granted. Upon petitioner's refusal to be sworn as such
witness, a charge for contempt was filed against him in the sala of
respondent Judge. He filed a motion to quash and upon its denial, he
initiated this proceeding. We found for the petitioner in accordance with
the well-settled principle that "the accused in a criminal case may refuse,
not only to answer incriminatory questions, but, also, to take the witness
stand."
It was noted in the opinion penned by the present Chief Justice
that while the matter referred to an administrative charge of unexplained
wealth, with the Anti-Graft Act authorizing the forfeiture of whatever
property a public officer or employee may acquire, manifestly out of
proportion to his salary and his other lawful income, there is clearly the
imposition of a penalty. The proceeding for forfeiture while administrative
in character thus possesses a criminal or penal aspect. The case before
us is not dissimilar; petitioner would be similarly disadvantaged. He could
suffer not the forfeiture of property but the revocation of his license as
medical practitioner, for some an even greater deprivation.
To the argument that Cabal v. Kapunan could thus be
distinguished, it suffices to refer to an American Supreme Court opinion
highly persuasive in character. 10 In the language of Justice Douglas:
"We conclude .. that the Self-Incrimination Clause of the Fifth
Amendment has been absorbed in the Fourteenth, that it extends its
protection to lawyers as well as to other individuals, and that it should not
be watered down by imposing the dishonor of disbarment and the
deprivation of a livelihood as a price for asserting it." We reiterate that
such a principle is equally applicable to a proceeding that could possibly
result in the loss of the privilege to practice the medical profession.
2.The appeal apparently proceeds on the mistaken assumption
by respondent Board and intervenors-appellants that the constitutional
guarantee against self-incrimination should be limited to allowing a
witness to object to questions the answers to which could lead to a penal
liability being subsequently incurred. It is true that one aspect of such a
right, to follow the language of another American decision, 11 is the
protection against "any disclosures which the witness may reasonably
apprehend could be used in a criminal prosecution or which could lead to
other evidence that might be so used." If that were all there is then it
becomes diluted.
The constitutional guarantee protects as well the right to silence.
As far back as 1905, we had occasion to declare: "The accused has a
perfect right to remain silent and his silence cannot be used as a
presumption of his guilt." 12 Only last year, in Chavez v. Court of
Appeals, 13 speaking through Justice Sanchez, we reaffirmed the
doctrine anew that is the right of a defendant "to forego testimony, to
remain silent, unless he chooses to take the witness stand—with
undiluted, unfettered exercise of his own free genuine will."
Why it should be thus is not difficult to discern. The constitutional
guarantee, along with other rights granted an accused, stands for a belief
that while crime should not go unpunished and that the truth must be
revealed, such desirable objectives should not be accomplished
according to means or methods offensive to the high sense of respect
accorded the human personality. More and more in line with the
democratic creed, the deference accorded an individual even those
suspected of the most heinous crimes is given due weight. To quote from
Chief Justice Warren, "the constitutional foundation underlying the
privilege is the respect a government . . . must accord to the dignity and
integrity of its citizens." 14
It is likewise of interest to note that while earlier decisions
stressed the principle of humanity on which this right is predicated,
precluding as it does all resort to force or compulsion, whether physical
or mental, current judicial opinion places equal emphasis on its
identification with the right to privacy. Thus according to Justice Douglas:
"The Fifth Amendment in its Self-Incrimination clause enables the citizen
to create a zone of privacy which government may not force to surrender
to his detriment." 15 So also with the observation of the late Judge Frank
who spoke of "a right to a private enclave where he may lead a private
life. That right is the hallmark of our democracy." 16
In the light of the above, it could thus clearly appear that no
possible objection could be legitimately raised against the correctness of
the decision now on appeal. We hold that in an administrative hearing
against a medical practitioner for alleged malpractice, respondent Board
of Medical Examiners cannot, consistently with the self-incrimination
clause, compel the person proceeded against to take the witness stand
without his consent.
 WHEREFORE, the decision of the lower court of August 2, 1965
is affirmed. Without pronouncement as to costs.
[G.R. No. 157870. November 3, 2008.]
SOCIAL JUSTICE SOCIETY (SJS), petitioner, vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY (PDEA),  respondents.
[G.R. No. 158633. November 3, 2008.]
ATTY. MANUEL J. LASERNA,
JR., petitioner, vs. DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY, respondents.
[G.R. No. 161658. November 3, 2008.]
AQUILINO Q. PIMENTEL, JR., petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
VELASCO, JR.,  J p:
In these kindred petitions, the constitutionality of Section 36
of Republic Act No. (RA) 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, insofar as it requires mandatory drug
testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and
persons charged before the prosecutor's office with certain offenses,
among other personalities, is put in issue. THEDcS
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing.—Authorized
drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories
accredited and monitored by the DOH to safeguard the
quality of the test results. . . . The drug testing shall
employ, among others, two (2) testing methods, the
screening test which will determine the positive result as
well as the type of drug used and the confirmatory test
which will confirm a positive screening test. . . . The
following shall be subjected to undergo drug testing:
xxx xxx xxx
(c) Students of secondary and tertiary schools.
— Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as
contained in the school's student handbook and with
notice to the parents, undergo a random drug
testing . . .; STIHaE
(d) Officers and employees of public and private
offices. — Officers and employees of public and private
offices, whether domestic or overseas, shall be
subjected to undergo a random drug test as contained in
the company's work rules and regulations, . . . for
purposes of reducing the risk in the workplace. Any
officer or employee found positive for use of dangerous
drugs shall be dealt with administratively which shall be
a ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;
xxx xxx xxx
(f) All persons charged before the prosecutor's
office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years
and one (1) day shall undergo a mandatory drug test;
(g) All candidates for public office whether
appointed or elected both in the national or local
government shall undergo a mandatory drug test.
 In addition to the above stated penalties in this
Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of
this Act. TADIHE
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections
(COMELEC) issued Resolution No. 6486, prescribing the rules and
regulations on the mandatory drug testing of candidates for public office
in connection with the May 10, 2004 synchronized national and local
elections. The pertinent portions of the said resolution read as
follows: aIHSEc
WHEREAS, Section 36 (g) of Republic Act No.
9165 provides:
SEC. 36. Authorized Drug Testing. —. . .
xxx xxx xxx
(g) All candidates for public office . . . both in the
national or local government shall undergo a
mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987
Constitution provides that public officers and employees
must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty and
efficiency;
WHEREAS, by requiring candidates to undergo
mandatory drug test, the public will know the quality of
candidates they are electing and they will be assured
that only those who can serve with utmost responsibility,
integrity, loyalty, and efficiency would be elected . . . .
NOW THEREFORE, The [COMELEC], pursuant
to the authority vested in it under the Constitution, Batas
Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165
and other election laws, RESOLVED to promulgate, as it
hereby promulgates, the following rules and regulations
on the conduct of mandatory drug testing to candidates
for public office[:]
SEC. 1. Coverage. — All candidates for public
office, both national and local, in the May 10, 2004
Synchronized National and Local Elections shall
undergo mandatory drug test in government forensic
laboratories or any drug testing laboratories monitored
and accredited by the Department of Health.
SEC. 3. . . .
On March 25, 2004, in addition to the drug
certificates filed with their respective offices, the
Comelec Offices and employees concerned shall submit
to the Law Department two (2) separate lists of
candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the
second list shall consist of those candidates who failed
to comply . . . .
SEC. 4. Preparation and publication of names of
candidates. — Before the start of the campaign period,
the [COMELEC] shall prepare two separate lists of
candidates. The first list shall consist of those candidates
who complied with the mandatory drug test while the
second list shall consist of those candidates who failed
to comply with said drug test. . . . SCADIT
SEC. 5. Effect of failure to undergo mandatory
drug test and file drug test certificate. — No person
elected to any public office shall enter upon the duties of
his office until he has undergone mandatory drug test
and filed with the offices enumerated under Section 2
hereof the drug test certificate herein required.
(Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic
and a candidate for re-election in the May 10, 2004 elections, 1 filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to
nullify Sec. 36 (g) of RA 9165 and COMELEC Resolution No. 6486 dated
December 23, 2003 for being unconstitutional in that they impose a
qualification for candidates for senators in addition to those already
provided for in the 1987 Constitution; and (2) to enjoin the COMELEC
from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI
of the Constitution, which states:
SEC. 3. No person shall be a Senator unless he
is a natural-born citizen of the Philippines, and, on the
day of the election, is at least thirty-five years of age,
able to read and write, a registered voter, and a resident
of the Philippines for not less than two years immediately
preceding the day of the election.
According to Pimentel, the Constitution only prescribes a
maximum of five (5) qualifications for one to be a candidate for, elected
to, and be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a
senatorial aspirant, among other candidates, to undergo a mandatory
drug test, create an additional qualification that all candidates for senator
must first be certified as drug free. He adds that there is no provision in
the Constitution authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v.
Dangerous Drugs Board and Philippine Drug
Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social
Justice Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement
Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36
of RA 9165 on the ground that they are constitutionally infirm. For one,
the provisions constitute undue delegation of legislative power when they
give unbridled discretion to schools and employers to determine the
manner of drug testing. For another, the provisions trench in the equal
protection clause inasmuch as they can be used to harass a student or
an employee deemed undesirable. And for a third, a person's
constitutional right against unreasonable searches is also breached by
said provisions. ADSTCI
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v.
Dangerous Drugs Board and Philippine Drug
Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer,
also seeks in his Petition for Certiorari and Prohibition under Rule 65
that Sec. 36 (c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to privacy, the
right against unreasonable search and seizure, and the right against self-
incrimination, and for being contrary to the due process and equal
protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench
and the matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to allege
any incident amounting to a violation of the constitutional rights
mentioned in their separate petitions. 2
It is basic that the power of judicial review can only be exercised
in connection with a  bona fide  controversy which involves the statute
sought to be reviewed. 3 But even with the presence of an actual case or
controversy, the Court may refuse to exercise judicial review unless the
constitutional question is brought before it by a party having the requisite
standing to challenge it. 4 To have standing, one must establish that he
or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to
the challenged action; and the injury is likely to be redressed by a
favorable action. 5
The rule on standing, however, is a matter of procedure; hence,
it can be relaxed for non-traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overarching
significance to society, or of paramount public interest. 6 There is no
doubt that Pimentel, as senator of the Philippines and candidate for the
May 10, 2004 elections, possesses the requisite standing since he has
substantial interests in the subject matter of the petition, among other
preliminary considerations. Regarding SJS and Laserna, this Court is
wont to relax the rule on locus standi owing primarily to the
transcendental importance and the paramount public interest involved in
the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36 (g) of RA 9165 and COMELEC Resolution No.
6486 impose an additional qualification for candidates for senator?
Corollarily, can Congress enact a law prescribing qualifications for
candidates for senator in addition to those laid down by the Constitution?
and IECcaA
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA
9165 unconstitutional? Specifically, do these paragraphs violate the right
to privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of
legislative power?
Pimentel Petition (Constitutionality of Sec. 36 [g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36 (g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject to the
provisions on nuisance candidates, a candidate for senator needs only to
meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to
wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates
for senator need not possess any other qualification to run for senator
and be voted upon and elected as member of the Senate. The Congress
cannot validly amend or otherwise modify these qualification standards,
as it cannot disregard, evade, or weaken the force of a constitutional
mandate, 7 or alter or enlarge the Constitution.
 Pimentel's contention is well-taken. Accordingly, Sec. 36 (g)
of RA 9165 should be, as it is hereby declared as, unconstitutional. It is
basic that if a law or an administrative rule violates any norm of
the Constitution, that issuance is null and void and has no effect.
The Constitution is the basic law to which all laws must conform; no act
shall be valid if it conflicts with the Constitution. 8 In the discharge of their
defined functions, the three departments of government have no choice
but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed. 9
Congress' inherent legislative powers, broad as they may be, are
subject to certain limitations. As early as 1927, in  Government v.
Springer, the Court has defined, in the abstract, the limits on legislative
power in the following wise:
Someone has said that the powers of the
legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional
governments, however, as well as governments acting
under delegated authority, the powers of each of the
departments . . . are limited and confined within the four
walls of the constitution or the charter, and each
department can only exercise such powers as are
necessarily implied from the given powers.
The Constitution is the shore of legislative authority
against which the waves of legislative enactment may
dash, but over which it cannot leap. 10 EHSIcT
Thus, legislative power remains limited in the sense that it is
subject to substantive and constitutional limitations which circumscribe
both the exercise of the power itself and the allowable subjects of
legislation. 11 The substantive constitutional limitations are chiefly found
in the Bill of Rights 12 and other provisions, such as Sec. 3, Art. VI of
the Constitution prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of
enforcing and administering election laws or promulgating rules and
regulations to implement Sec. 36 (g), validly impose qualifications on
candidates for senator in addition to what the Constitution prescribes. If
Congress cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be
defeated by unwarranted impositions of requirement not otherwise
specified in the Constitution. 13
Sec. 36 (g) of RA 9165, as sought to be implemented by the
assailed COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution. As
couched, said Sec. 36 (g) unmistakably requires a candidate for senator
to be certified illegal-drug clean, obviously as a pre-condition to the
validity of a certificate of candidacy for senator or, with like effect, a
condition  sine qua non to be voted upon and, if proper, be proclaimed as
senator-elect. The COMELEC resolution completes the chain with the
proviso that "[n]o person elected to any public office shall enter upon the
duties of his office until he has undergone mandatory drug test". Viewed,
therefore, in its proper context, Sec. 36 (g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to
what the 1987 Constitution, at the minimum, requires for membership in
the Senate. Whether or not the drug-free bar set up under the challenged
provision is to be hurdled before or after election is really of no moment,
as getting elected would be of little value if one cannot assume office for
non-compliance with the drug-testing requirement.
It may of course be argued, in defense of the validity of Sec. 36
(g) of RA 9165, that the provision does not expressly state that non-
compliance with the drug test imposition is a disqualifying factor or would
work to nullify a certificate of candidacy. This argument may be accorded
plausibility if the drug test requirement is optional. But the particular
section of the law, without exception, made drug-testing on those
covered mandatory, necessarily suggesting that the obstinate ones shall
have to suffer the adverse consequences for not adhering to the
statutory command. And since the provision deals with candidates for
public office, it stands to reason that the adverse consequence adverted
to can only refer to and revolve around the election and the assumption
of public office of the candidates. Any other construal would reduce the
mandatory nature of Sec. 36 (g) of RA 9165 into a pure jargon without
meaning and effect whatsoever.
While it is anti-climactic to state it at this juncture,
COMELEC Resolution No. 6486 is no longer enforceable, for by its
terms, it was intended to cover only the May 10, 2004 synchronized
elections and the candidates running in that electoral event.
Nonetheless, to obviate repetition, the Court deems it appropriate to
review and rule, as it hereby rules, on its validity as an implementing
issuance.
It ought to be made abundantly clear, however, that the
unconstitutionality of Sec. 36 (g) of RA 9165 is rooted on its having
infringed the constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.
SJS Petition (Constitutionality of Sec. 36 [c], [d], [f], and [g] of RA
9165)
The drug test prescribed under Sec. 36 (c), (d), and (f) of RA
9165 for secondary and tertiary level students and public and private
employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in
the process "the well being of [the] citizenry, particularly the youth, from
the harmful effects of dangerous drugs". This statutory purpose, per the
policy-declaration portion of the law, can be achieved via the pursuit by
the state of "an intensive and unrelenting campaign against the
trafficking and use of dangerous drugs . . . through an integrated system
of planning, implementation and enforcement of anti-drug abuse policies,
programs and projects". 14 The primary legislative intent is not criminal
prosecution, as those found positive for illegal drug use as a result of this
random testing are not necessarily treated as criminals. They may even
be exempt from criminal liability should the illegal drug user consent to
undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this
point: aIAHcE
Sec. 54. Voluntary Submission of a Drug
Dependent to Confinement, Treatment and
Rehabilitation. — A drug dependent or any person who
violates Section 15 of this Act may, by himself/herself or
through his/her parent, [close relatives] . . . apply to the
Board . . . for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall
bring forth the matter to the Court which shall order that
the applicant be examined for drug dependency. If the
examination . . . results in the certification that the
applicant is a drug dependent, he/she shall be ordered
by the Court to undergo treatment and rehabilitation in a
Center designated by the Board . . . .
xxx xxx xxx
Sec. 55. Exemption from the Criminal Liability
Under the Voluntary Submission Program. — A drug
dependent under the voluntary submission program,
who is finally discharged from confinement, shall be
exempt from the criminal liability under Section 15 of this
Act subject to the following conditions:
xxx xxx xxx
School children, the US Supreme Court noted, are most
vulnerable to the physical, psychological, and addictive effects of drugs.
Maturing nervous systems of the young are more critically impaired by
intoxicants and are more inclined to drug dependency. Their recovery is
also at a depressingly low rate. 15
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee against
unreasonable search and seizure 16 under Sec. 2, Art. III 17 of
the Constitution. But while the right to privacy has long come into its own,
this case appears to be the first time that the validity of a state-decreed
search or intrusion through the medium of mandatory random drug
testing among students and employees is, in this jurisdiction, made the
focal point. Thus, the issue tendered in these proceedings is veritably
one of first impression.
US jurisprudence is, however, a rich source of persuasive
jurisprudence. With respect to random drug testing among school
children, we turn to the teachings of Vernonia School District 47J v.
Acton (Vernonia) and  Board of Education of Independent School District
No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of
Education), 18 both fairly pertinent US Supreme Court-decided cases
involving the constitutionality of governmental search. cDSAEI
In Vernonia, school administrators in Vernonia, Oregon wanted
to address the drug menace in their respective institutions following the
discovery of frequent drug use by school athletes. After consultation with
the parents, they required random urinalysis drug testing for the school's
athletes. James Acton, a high school student, was denied participation in
the football program after he refused to undertake the urinalysis drug
testing. Acton forthwith sued, claiming that the school's drug testing
policy violated, inter alia, the Fourth Amendment 19 of the
US Constitution.
The US Supreme Court, in fashioning a solution to the issues
raised in Vernonia, considered the following: (1) schools stand  in loco
parentis over their students; (2) school children, while not shedding their
constitutional rights at the school gate, have less privacy rights; (3)
athletes have less privacy rights than non-athletes since the former
observe communal undress before and after sports events; (4) by joining
the sports activity, the athletes voluntarily subjected themselves to a
higher degree of school supervision and regulation; (5) requiring urine
samples does not invade a student's privacy since a student need not
undress for this kind of drug testing; and (6) there is need for the drug
testing because of the dangerous effects of illegal drugs on the young.
The US Supreme Court held that the policy constituted reasonable
search under the Fourth 20 and 14th Amendments and declared the
random drug-testing policy constitutional.
In Board of Education, the Board of Education of a school in
Tecumseh, Oklahoma required a drug test for high school students
desiring to join extra-curricular activities. Lindsay Earls, a member of the
show choir, marching band, and academic team declined to undergo a
drug test and averred that the drug-testing policy made to apply to non-
athletes violated the Fourth and 14th Amendments. As Earls argued,
unlike athletes who routinely undergo physical examinations and undress
before their peers in locker rooms, non-athletes are entitled to more
privacy.
 The US Supreme Court, citing Vernonia, upheld the
constitutionality of drug testing even among non-athletes on the basis of
the school's custodial responsibility and authority. In so ruling, said court
made no distinction between a non-athlete and an athlete. It ratiocinated
that schools and teachers act in place of the parents with a similar
interest and duty of safeguarding the health of the students. And in
holding that the school could implement its random drug-testing policy,
the Court hinted that such a test was a kind of search in which even a
reasonable parent might need to engage.
In sum, what can reasonably be deduced from the above two
cases and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis  with respect to their students; (2)
minor students have contextually fewer rights than an adult, and are
subject to the custody and supervision of their parents, guardians, and
schools; (3) schools, acting in loco parentis, have a duty to safeguard the
health and well-being of their students and may adopt such measures as
may reasonably be necessary to discharge such duty; and (4) schools
have the right to impose conditions on applicants for admission that are
fair, just, and non-discriminatory.
Guided by Vernonia  and Board of Education, the Court is of the
view and so holds that the provisions of RA 9165 requiring mandatory,
random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require,
as a condition for admission, compliance with reasonable school rules
and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of
prohibited drugs in the country that threatens the well-being of the
people, 21 particularly the youth and school children who usually end up
as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of students in
secondary and tertiary schools is not only acceptable but may even be
necessary if the safety and interest of the student population, doubtless a
legitimate concern of the government, are to be promoted and protected.
To borrow from Vernonia, "[d]eterring drug use by our Nation's
schoolchildren is as important as enhancing efficient enforcement of the
Nation's laws against the importation of drugs"; the necessity for the
State to act is magnified by the fact that the effects of a drug-infested
school are visited not just upon the users, but upon the entire student
body and faculty. 22 Needless to stress, the random testing scheme
provided under the law argues against the idea that the testing aims to
incriminate unsuspecting individual students. TAHCEc
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165 for
officers and employees of public and private offices is justifiable, albeit
not exactly for the same reason. The Court notes in this regard that
petitioner SJS, other than saying that "subjecting almost everybody to
drug testing, without probable cause, is unreasonable, an unwarranted
intrusion of the individual right to privacy", 23 has failed to show how the
mandatory, random, and suspicionless drug testing under Sec. 36 (c)
and (d) of RA 9165 violates the right to privacy and constitutes unlawful
and/or unconsented search under Art. III, Secs. 1 and 2 of
the Constitution. 24 Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious consideration.
Consider what he wrote without elaboration:
The US Supreme Court and US Circuit Courts of
Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school
and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests
violate a citizen's constitutional right to privacy and right
against unreasonable search and seizure. They are
quoted extensively hereinbelow. 25
The essence of privacy is the right to be left alone. 26 In context,
the right to privacy means the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private activities
in such a way as to cause humiliation to a person's ordinary
sensibilities. 27 And while there has been general agreement as to the
basic function of the guarantee against unwarranted search, "translation
of the abstract prohibition against 'unreasonable searches and seizures'
into workable broad guidelines for the decision of particular cases is a
difficult task", to borrow from  C. Camara v. Municipal
Court. 28 Authorities are agreed though that the right to privacy yields to
certain paramount rights of the public and defers to the state's exercise
of police power. 29
As the warrantless clause of Sec. 2, Art III of the Constitution is
couched and as has been held, "reasonableness" is the touchstone of
the validity of a government search or intrusion. 30 And whether a search
at issue hews to the reasonableness standard is judged by the balancing
of the government-mandated intrusion on the individual's privacy interest
against the promotion of some compelling state interest. 31 In the
criminal context, reasonableness requires showing of probable cause to
be personally determined by a judge. Given that the drug-testing policy
for employees –– and students for that matter –– under RA 9165 is in the
nature of administrative search needing what was referred to
in  Vernonia as "swift and informal disciplinary procedures", the probable-
cause standard is not required or even practicable. Be that as it may, the
review should focus on the reasonableness of the challenged
administrative search in question. EcICDT
 The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which effects a
search within the meaning of Sec. 2, Art. III of the Constitution, intrudes.
In this case, the office or workplace serves as the backdrop for the
analysis of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The employees' privacy
interest in an office is to a large extent circumscribed by the company's
work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the
employer to maintain discipline and efficiency in the workplace. Their
privacy expectation in a regulated office environment is, in fine, reduced;
and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is the
scope of the search or intrusion clearly set forth, or, as formulated
in  Ople v. Torres, is the enabling law authorizing a search "narrowly
drawn" or "narrowly focused"? 32
The poser should be answered in the affirmative. For one, Sec.
36 of RA 9165 and its implementing rules and regulations (IRR), as
couched, contain provisions specifically directed towards preventing a
situation that would unduly embarrass the employees or place them
under a humiliating experience. While every officer and employee in a
private establishment is under the law deemed forewarned that he or she
may be a possible subject of a drug test, nobody is really singled out in
advance for drug testing. The goal is to discourage drug use by not
telling in advance anyone when and who is to be tested. And as may be
observed, Sec. 36 (d) of RA 9165 itself prescribes what, in  Ople, is a
narrowing ingredient by providing that the employees concerned shall be
subjected to "random drug test as contained in the company's work rules
and regulations . . . for purposes of reducing the risk in the work place."
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the employee's
privacy and dignity. As to the mechanics of the test, the law specifies that
the procedure shall employ two testing methods,  i.e., the screening test
and the confirmatory test, doubtless to ensure as much as possible the
trustworthiness of the results. But the more important consideration lies
in the fact that the test shall be conducted by trained professionals in
access-controlled laboratories monitored by the Department of Health
(DOH) to safeguard against results tampering and to ensure an accurate
chain of custody. 33 In addition, the IRR issued by the DOH provides that
access to the drug results shall be on the "need to know" basis; 34 that
the "drug test result and the records shall be [kept] confidential subject to
the usual accepted practices to protect the confidentiality of the test
results". 35 Notably, RA 9165 does not oblige the employer concerned to
report to the prosecuting agencies any information or evidence relating to
the violation of the Comprehensive Dangerous Drugs Act  received as a
result of the operation of the drug testing. All told, therefore, the intrusion
into the employees' privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results,
and is relatively minimal. STHAaD
To reiterate, RA 9165 was enacted as a measure to stamp out
illegal drug in the country and thus protect the well-being of the citizens,
especially the youth, from the deleterious effects of dangerous drugs.
The law intends to achieve this through the medium, among others, of
promoting and resolutely pursuing a national drug abuse policy in the
workplace via a mandatory random drug test. 36 To the Court, the need
for drug testing to at least minimize illegal drug use is substantial enough
to override the individual's privacy interest under the premises. The Court
can consider that the illegal drug menace cuts across gender, age group,
and social-economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would
be an investor's dream were it not for the illegal and immoral
components of any of such activities. The drug problem has hardly
abated since the martial law public execution of a notorious drug
trafficker. The state can no longer assume a laid back stance with
respect to this modern-day scourge. Drug enforcement agencies
perceive a mandatory random drug test to be an effective way of
preventing and deterring drug use among employees in private offices,
the threat of detection by random testing being higher than other modes.
The Court holds that the chosen method is a reasonable and enough
means to lick the problem.
Taking into account the foregoing factors,  i.e., the reduced
expectation of privacy on the part of the employees, the compelling state
concern likely to be met by the search, and the well-defined limits set
forth in the law to properly guide authorities in the conduct of the random
testing, we hold that the challenged drug test requirement is, under the
limited context of the case, reasonable and,  ergo, constitutional.
Like their counterparts in the private sector, government officials
and employees also labor under reasonable supervision and restrictions
imposed by the Civil Service law and other laws on public officers, all
enacted to promote a high standard of ethics in the public
service. 37 And if RA 9165 passes the norm of reasonableness for
private employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be
accountable at all times to the people and to serve them with utmost
responsibility and efficiency. 38
Petitioner SJS' next posture that Sec. 36 of RA 9165 is
objectionable on the ground of undue delegation of power hardly
commends itself for concurrence. Contrary to its position, the provision in
question is not so extensively drawn as to give unbridled options to
schools and employers to determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of secondary and
tertiary schools and officers/employees of public/private offices should be
conducted. It enumerates the persons who shall undergo drug testing. In
the case of students, the testing shall be in accordance with the school
rules as contained in the student handbook and with notice to parents.
On the part of officers/employees, the testing shall take into account the
company's work rules. In either case, the random procedure shall be
observed, meaning that the persons to be subjected to drug test shall be
picked by chance or in an unplanned way. And in all cases, safeguards
against misusing and compromising the confidentiality of the test results
are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to
issue, in consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor and
Employment, among other agencies, the IRR necessary to enforce the
law. In net effect then, the participation of schools and offices in the drug
testing scheme shall always be subject to the IRR of RA 9165. It is,
therefore, incorrect to say that schools and employers have unchecked
discretion to determine how often, under what conditions, and where the
drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in
the constitutional landscape. 39 In the face of the increasing complexity
of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its
attention, resort to delegation of power, or entrusting to administrative
agencies the power of subordinate legislation, has become imperative,
as here.
Laserna Petition (Constitutionality of Sec. 36 [c], [d], [f], and [g]
of RA 9165)
Unlike the situation covered by Sec. 36 (c) and (d) of RA 9165,
the Court finds no valid justification for mandatory drug testing for
persons accused of crimes. In the case of students, the constitutional
viability of the mandatory, random, and suspicionless drug testing for
students emanates primarily from the waiver by the students of their right
to privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities. In
the case of private and public employees, the constitutional soundness of
the mandatory, random, and suspicionless drug testing proceeds from
the reasonableness of the drug test policy and requirement. EHaCTA
We find the situation entirely different in the case of persons
charged before the public prosecutor's office with criminal offenses
punishable with six (6) years and one (1) day imprisonment. The
operative concepts in the mandatory drug testing are "randomness" and
"suspicionless". In the case of persons charged with a crime before the
prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are
antithetical to their being made defendants in a criminal complaint. They
are not randomly picked; neither are they beyond suspicion. When
persons suspected of committing a crime are charged, they are singled
out and are impleaded against their will. The persons thus charged, by
the bare fact of being haled before the prosecutor's office and peaceably
submitting themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their right to
privacy. 40 To impose mandatory drug testing on the accused is a
blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in
this case would violate a persons' right to privacy guaranteed under Sec.
2, Art. III of the Constitution. Worse still, the accused persons are
veritably forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No.
161658 and declares Sec. 36 (g) of RA 9165 and COMELEC Resolution No.
6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R.
Nos. 157870 and 158633 by declaring Sec. 36 (c) and (d) of RA
9165 CONSTITUTIONAL, but declaring its Sec. 36 (f) UNCONSTITUTIONAL. All
concerned agencies are, accordingly, permanently enjoined from implementing
Sec. 36 (f) and (g) of RA 9165. No costs. SO ORDERED.
[G.R. No. 181881. October 18, 2011.]
BRICCIO "Ricky" A. POLLO, petitioner, vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID,
DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION,  respondents.
1. Constitutional Law;  Bill of Rights;  Right to Privacy;  The right to privacy has
been accorded recognition as a facet of the right protected by the guarantee against
unreasonable search and seizure under Section 2, Article III of the 1987
Constitution.-
—The right to privacy has been accorded recognition in this jurisdiction as a facet of
the right protected by the guarantee against unreasonable search and seizure under
Section 2, Article III of the 1987 Constitution, which provides: Sec. 2. The right of the
people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.
2. Same;  View that a recognition of the limitations of man as a being needful of some
extent of rest, and of some degree of personal space even during work hours, is most
essential in order to fully maximize the potential by which his services was obtained
in the first place.-
—Although the interests of capital or public service do merit protection, a recognition
of the limitations of man as a being needful of some extent of rest, and of some
degree of personal space even during work hours, is most essential in order to fully
maximize the potential by which his services was obtained in the first place. The job
should not own him the whole time he is in the workplace. Even while he remains in
the workplace, he must be allowed to preserve his own identity, to maintain an inner
self, to safeguard his beliefs, and to keep certain thoughts, judgments and desires
hidden.
3. Same;  View that the ruling about the decreased expectation of privacy in the
workplace may generate an unwanted implication for employers in general to
henceforth consider themselves authorized, without risking a collision with the
Constitutionally-protected right to privacy, to probe and pry into communications
made during work hours by their employees through the use of their computers and
other digital instruments of communication.-
—I apprehend that the ruling about the decreased expectation of privacy in the
workplace may generate an unwanted implication for employers in general to
henceforth consider themselves authorized, without risking a collision with the
Constitutionally-protected right to privacy, to probe and pry into communications
made during work hours by their employees through the use of their computers and
other digital instruments of communication. Thus, the employers may possibly begin
to monitor their employees’ phone calls, to screen incoming and out-going e-mails, to
capture queries made through any of the Internet’s efficient search engines (like
Google), or to censor visited websites (like Yahoo!, Facebook or Twitter) in the
avowed interest of ensuring productivity and supervising use of business resources.
That will be unfortunate.
4. Same;  View that although the right to privacy is referred to as a right to be enjoyed
by the people, the State cannot just sit back and stand aside when, in the exercise of
his right to privacy, the individual perilously tilts the scales to the detriment of the
national interest.-
—I adhere to the principle that every man is believed to be free. Freedom gears a
man to move about unhampered and to speak out from conviction. That is why the
right to privacy has earned its worthy place in the Bill of Rights. However, although
the right to privacy is referred to as a right to be enjoyed by the people, the State
cannot just sit back and stand aside when, in the exercise of his right to privacy, the
individual perilously tilts the scales to the detriment of the national interest.
5. Same;  View that the validity of the seizure of the files should be limited to the need
for determining whether or not the petitioner unjustly utilized official resources of the
Commission for personal purposes, and should not extend to the reading of the files’
contents, which would be violative of his right to privacy.-
—Thus, I vote to uphold the legality of OM No. 10. I hasten to add, to be very clear,
that the validity of the seizure of the files should be limited to the need for determining
whether or not the petitioner unjustly utilized official resources of the Commission for
personal purposes, and should not extend to the reading of the files’ contents, which
would be violative of his right to privacy.
6. Same;  View that the petitioner is entitled to a reasonable expectation of privacy in
respect of the communications created, stored, sent, or received after office hours
through the office computer, as to which he must be protected.-
—I hold, instead, that the petitioner is entitled to a reasonable expectation of privacy
in respect of the communications created, stored, sent, or received after office hours
through the office computer, as to which he must be protected.
7. Same;  View that even without Office Memorandum (OM) No. 10, Series of 2002
being issued by respondent Karina Constantino-David as Chairman of the Civil
Service Commission, the employees of the Commission have a reduced expectation
of privacy in the workplace.-
—Even without Office Memorandum (OM) No. 10, Series of 2002 being issued by
respondent Karina Constantino-David as Chairman of the Civil Service Commission,
the employees of the Commission, including the petitioner, have a reduced
expectation of privacy in the workplace. The objective of the issuance of OM No. 10
has been only to formally inform and make aware the employees of the Commission
about the limitations on their privacy while they are in the workplace and to advise
them that the Commission has legitimate reasons to monitor communications made
by them, electronically or not.
8. Right to Privacy; View that the right to privacy involved herein is the petitioner’s
right to informational privacy in his workplace, specifically his right to work freely
without surveillance or intrusion.-
—At the outset, I state that the right to privacy involved herein is the petitioner’s right
to informational privacy in his workplace, specifically his right to work freely without
surveillance or intrusion.
9. Same;  View that the Civil Service Commission (CSC) office regulation denying
CSC employees privacy expectation in “anything they create, store, send, or receive
in the computer system” is constitutionally infirm insofar as the regulation excludes
from its ambit the three CSC commissioners solely by reason of their rank, and not by
reason of the confidential nature of the electronic data they generate.-
—The CSC office regulation denying CSC employees privacy expectation in
“anything they create, store, send, or receive in the computer system,” although valid
as to petitioner Briccio Pollo, is constitutionally infirm insofar as the regulation
excludes from its ambit the three CSC commissioners solely by reason of their rank,
and not by reason of the confidential nature of the electronic data they generate.
10. Right to Privacy; View that the Civil Service Commission (CSC) regulation
declaring a no-privacy expectation on the use of government-owned computers
logically follows from the statutory rule that government-owned property shall be used
“solely” for a public purpose.-
—Any private use of a government property, like a government-owned computer, is
prohibited by law. Consequently, a government employee cannot expect any privacy
when he uses a government-owned computer because he knows he cannot use the
computer for any private purpose. The CSC regulation declaring a no-privacy
expectation on the use of government-owned computers logically follows from the
statutory rule that government-owned property shall be used “solely” for a public
purpose.
11. Civil Procedure;  Appeals;  Substantial Evidence; Well-settled is the rule that
the findings of fact of quasi-judicial agencies, like the Civil Service Commission
(CSC), are accorded not only respect but even finality if such findings are supported
by substantial evidence.-
—Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the
CSC, are accorded not only respect but even finality if such findings are supported by
substantial evidence. Substantial evidence is such amount of relevant evidence
which a reasonable mind might accept as adequate to support a conclusion, even if
other equally reasonable minds might conceivably opine otherwise.
12. Same;  A search by a government employer of an employee’s office is justified at
inception when there are reasonable grounds for suspecting that it will turn up
evidence that the employee is guilty of work-related misconduct.-
—A search by a government employer of an employee’s office is justified at inception
when there are reasonable grounds for suspecting that it will turn up evidence that
the employee is guilty of work-related misconduct. Thus, in the 2004 case decided by
the US Court of Appeals Eighth Circuit, it was held that where a government agency’s
computer use policy prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and technology, the
government employee had no legitimate expectation of privacy as to the use and
contents of his office computer, and therefore evidence found during warrantless
search of the computer was admissible in prosecution for child pornography. In that
case, the defendant employee’s computer hard drive was first remotely examined by
a computer information technician after his supervisor received complaints that he
was inaccessible and had copied and distributed non-work-related e-mail messages
throughout the office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the express policy of
the agency, his computer tower and floppy disks were taken and examined. A formal
administrative investigation ensued and later search warrants were secured by the
police department. The initial remote search of the hard drive of petitioner’s
computer, as well as the subsequent warrantless searches was held as valid under
the O’Connor ruling that a public employer can investigate work-related misconduct
so long as any search is justified at inception and is reasonably related in scope to
the circumstances that justified it in the first place.
13. Right to Privacy; The Civil Service Commission (CSC) had implemented a
policy that put its employees on notice that they have no expectation of privacy in
anything they create, store, send or receive on the office computers, and that the
CSC may monitor the use of the computer resources using both automated or human
means.-
—The CSC in this case had implemented a policy that put its employees on notice
that they have no expectation of privacy in anything they create, store, send or
receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-the-
spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.
DECISION
VILLARAMA, JR.,  J p:
This case involves a search of office computer assigned to a government
employee who was charged administratively and eventually dismissed from the
service. The employee's personal files stored in the computer were used by the
government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to
reverse and set aside the Decision 1 dated October 11, 2007 and Resolution 2 dated
February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition
for  certiorari  (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to
nullify the proceedings conducted by the Civil Service Commission (CSC) which
found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best
interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized
him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional
Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison
Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the
CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint
addressed to respondent CSC Chairperson Karina Constantino-David which was
marked "Confidential" and sent through a courier service (LBC) from a certain "Alan
San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated
Records Management Office (IRMO) at the CSC Central Office. Following office
practice in which documents marked "Confidential" are left unopened and instead
sent to the addressee, the aforesaid letter was given directly to Chairperson
David. ATDHSC
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New
Year!
As a concerned citizen of my beloved country, I would
like to ask from you personally if it is just alright for an employee
of your agency to be a lawyer of an accused gov't employee
having a pending case in the csc. I honestly think this is a
violation of law and unfair to others and your office.
I have known that a person have been lawyered by one
of your attorny in the region 4 office. He is the chief of the
Mamamayan muna hindi mamaya na division. He have been
helping many who have pending cases in the Csc. The justice in
our govt system will not be served if this will continue. Please
investigate this anomaly because our perception of your clean
and good office is being tainted.
Concerned Govt
employee 3
Chairperson David immediately formed a team of four personnel with
background in information technology (IT), and issued a memo directing them to
conduct an investigation and specifically "to back up all the files in the computers
found in the Mamamayan Muna (PALD) and Legal divisions." 4 After some briefing,
the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City.
Upon their arrival thereat around 5:30 p.m., the team informed the officials of the
CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III
Engelbert Unite (Director Unite) of Chairperson David's directive.
The backing-up of all  files in the hard disk of computers at the PALD and
Legal Services Division (LSD) was witnessed by several employees, together with
Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m.,
Director Unite sent text messages to petitioner and the head of LSD, who were both
out of the office at the time, informing them of the ongoing copying of computer files in
their divisions upon orders of the CSC Chair. The text messages received by
petitioner read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the
PCs of PALD and LSD per instruction of the Chairman. If you
can make it here now it would be better."
"All PCs of PALD and LSD are being backed up per memo of the
chair."
"CO IT people arrived just now for this purpose. We were not
also informed about this.
"We can't do anything about . . . it . . . it's a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill
send a copy of the memo via mms" 5
Petitioner replied also thru text message that he was leaving the matter to
Director Unite and that he will just get a lawyer. Another text message received by
petitioner from PALD staff also reported the presence of the team from CSC main
office:  "Sir may mga taga C.O. daw sa kuarto natin." 6 At around 10:00 p.m. of the
same day, the investigating team finished their task. The next day, all the computers
in the PALD were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of
PALD and LSD computers were turned over to Chairperson David. The contents of
the diskettes were examined by the CSC's Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes containing files copied from the computer
assigned to and being used by the petitioner, numbering about 40 to 42 documents,
were draft pleadings or letters 7 in connection with administrative cases in the CSC
and other tribunals. On the basis of this finding, Chairperson David issued the Show-
Cause Order 8 dated January 11, 2007, requiring the petitioner, who had gone on
extended leave, to submit his explanation or counter-affidavit within five days from
notice. DIEAHc
Evaluating the subject documents obtained from petitioner's personal files,
Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings
or documents that are related to or connected with administrative
cases that may broadly be lumped as pending either in the
CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other
tribunals. It is also of note that most of these draft pleadings are
for and on behalves of parties, who are facing charges as
respondents in administrative cases. This gives rise to the
inference that the one who prepared them was knowingly,
deliberately and willfully aiding and advancing interests adverse
and inimical to the interest of the CSC as the central personnel
agency of the government tasked to discipline misfeasance and
malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such person is
not merely engaged in an isolated practice but pursues it with
seeming regularity. It would also be the height of naivete or
credulity, and certainly against common human experience, to
believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the
retrieved files (item 13 above) appears to insinuate the collection
of fees. That these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the presumption that
he was the one responsible or had a hand in their drafting or
preparation since the computer of origin was within his direct
control and disposition. 9
Petitioner filed his Comment, denying that he is the person referred to in the
anonymous letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he "lawyering" for people with cases in the CSC. He accused
CSC officials of conducting a "fishing expedition" when they unlawfully copied and
printed personal files in his computer, and subsequently asking him to submit his
comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the
letter dated January 8, 2007 in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister, relatives, friends and some
associates and that he is not authorizing their sealing, copying, duplicating and
printing as these would violate his constitutional right to privacy and protection against
self-incrimination and warrantless search and seizure. He pointed out that though
government property, the temporary use and ownership of the computer issued under
a Memorandum of Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases
in the Civil Service (URACC). In view of the illegal search, the files/documents copied
from his computer without his consent is thus inadmissible as evidence, being "fruits
of a poisonous tree." 10
On February 26, 2007, the CSC issued Resolution No.
070382 11 finding  prima facie case against the petitioner and charging him with
Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service
and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees). Petitioner was directed to submit his answer under oath
within five days from notice and indicate whether he elects a formal investigation.
Since the charges fall under Section 19 of the URACC, petitioner was likewise placed
under 90 days preventive suspension effective immediately upon receipt of the
resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or
to Defer) assailing the formal charge as without basis having proceeded from an
illegal search which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court. Petitioner reiterated that he never aided any people with
pending cases at the CSC and alleged that those files found in his computer were
prepared not by him but by certain persons whom he permitted, at one time or
another, to make use of his computer out of close association or friendship. Attached
to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own
files to be kept at petitioner's CPU and Atty. Eric N. Estrellado, the latter being Atty.
Solosa's client who attested that petitioner had nothing to do with the pleadings or bill
for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner.
Petitioner contended that the case should be deferred in view of the prejudicial
question raised in the criminal complaint he filed before the Ombudsman against
Director Buensalida, whom petitioner believes had instigated this administrative case.
He also prayed for the lifting of the preventive suspension imposed on him. In its
Resolution No. 070519 12 dated March 19, 2007, the CSC denied the omnibus
motion. The CSC resolved to treat the said motion as petitioner's answer.   without the latter's consent or participation. The CSC thus turned to relevant rulings of
On March 14, 2007, petitioner filed an Urgent Petition 13 under Rule 65 of
the Rules of Court,docketed as CA-G.R. SP No. 98224, assailing both the January
11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as
having been issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-
RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment
against Director Buensalida. 14
On April 17, 2007, petitioner received a notice of hearing from the CSC
setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he
filed in the CA an Urgent Motion for the issuance of TRO and preliminary
injunction. 15 Since he failed to attend the pre-hearing conference scheduled on April
30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of
petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle
the prosecution to proceed with the formal investigation ex-parte. 16 Petitioner moved
to defer or to reset the pre-hearing conference, claiming that the investigation
proceedings should be held in abeyance pending the resolution of his petition by the
CA. The CSC denied his request and again scheduled the pre-hearing conference on
May 18, 2007 with similar warning on the consequences of petitioner and/or his
counsel's non-appearance. 17 This prompted petitioner to file another motion in the
CA, to cite the respondents, including the hearing officer, in indirect contempt. 18
On June 12, 2007, the CSC issued Resolution No. 071134 19 denying
petitioner's motion to set aside the denial of his motion to defer the proceedings and
to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer
was directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of
the prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420, 20 the dispositive
part of which reads:
WHEREFORE, foregoing premises considered, the
Commission hereby finds Briccio A. Pollo,  a.k.a. Ricky A. Pollo
GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to
the Best Interest of the Service and Violation of Republic Act
6713. He is meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely, disqualification
to hold public office, forfeiture of retirement benefits, cancellation
of civil service eligibilities and bar from taking future civil service
examinations. 21
On the paramount issue of the legality of the search conducted on
petitioner's computer, the CSC noted the dearth of jurisprudence relevant to the
factual milieu of this case where the government as employer invades the private files
of an employee stored in the computer assigned to him for his official use, in the
course of initial investigation of possible misconduct committed by said employee and
the United States Supreme Court, and cited the leading case of O'Connor v.
Ortega 22 as authority for the view that government agencies, in their capacity as
employers, rather than law enforcers, could validly conduct search and seizure in the
governmental workplace without meeting the "probable cause" or warrant
requirement for search and seizure. Another ruling cited by the CSC is the more
recent case of United States v. Mark L. Simons 23 which declared that the federal
agency's computer use policy foreclosed any inference of reasonable expectation of
privacy on the part of its employees. Though the Court therein recognized that such
policy did not, at the same time, erode the respondent's legitimate expectation of
privacy in the office in which the computer was installed, still, the warrantless search
of the employee's office was upheld as valid because a government employer is
entitled to conduct a warrantless search pursuant to an investigation of work-related
misconduct provided the search is reasonable in its inception and scope. CaDEAT
With the foregoing American jurisprudence as benchmark, the CSC held that
petitioner has no reasonable expectation of privacy with regard to the computer he
was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner's computer successfully
passed the test of reasonableness for warrantless searches in the workplace as
enunciated in the aforecited authorities. The CSC stressed that it pursued the search
in its capacity as government employer and that it was undertaken in connection with
an investigation involving work-related misconduct, which exempts it from the warrant
requirement under the Constitution. With the matter of admissibility of the evidence
having been resolved, the CSC then ruled that the totality of evidence adequately
supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best
interest of the service and violation of R.A. No. 6713 against the petitioner. These
grave infractions justified petitioner's dismissal from the service with all its accessory
penalties.
In his Memorandum 24 filed in the CA, petitioner moved to incorporate the
above resolution dismissing him from the service in his main petition, in lieu of the
filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed
for the inclusion of Resolution No. 071800 25 which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition
for certiorari after finding no grave abuse of discretion committed by respondents
CSC officials. The CA held that: (1) petitioner was not charged on the basis of the
anonymous letter but from the initiative of the CSC after a fact-finding investigation
was conducted and the results thereof yielded a prima facie case against him; (2) it
could not be said that in ordering the back-up of files in petitioner's computer and later
confiscating the same, Chairperson David had encroached on the authority of a judge
in view of the CSC computer policy declaring the computers as government property
and that employee-users thereof have no reasonable expectation of privacy in
anything they create, store, send, or receive on the computer system; and (3) there is
nothing contemptuous in CSC's act of proceeding with the formal investigation as
there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner
brought this appeal arguing that —
I searches and seizures of whatever nature and for any purpose
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN
LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER
E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8
OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO
THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED
PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF
DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE
HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND
SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM
SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND
NOT BY THE COLLEGIAL COMMISSION CONSIDERING
THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS
CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS
LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO
SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION
[OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND
TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN
HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS
ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL
FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF
O.M. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED
THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT
ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE
PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER
ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE
HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE
AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24,
2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007.
IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO
RESOLVE ANCILLARY PRAYER FOR TRO. 26
Squarely raised by the petitioner is the legality of the search conducted on
his office computer and the copying of his personal files without his knowledge and
consent, alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a
facet of the right protected by the guarantee against unreasonable search and seizure
under Section 2, Article III of the 1987 Constitution, 27 which provides:
SEC. 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and
the persons or things to be seized. 
The constitutional guarantee is not a prohibition of all searches and seizures
but only of "unreasonable" searches and seizures. 28 But to fully understand this
concept and application for the purpose of resolving the issue at hand, it is essential
that we examine the doctrine in the light of pronouncements in another jurisdiction. As
the Court declared in  People v. Marti: 29
Our present constitutional provision on the guarantee
against unreasonable search and seizure had its origin in the
1935 Charter which, worded as follows:
"The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but
upon probable cause, to be determined by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the
persons or things to be seized." (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth
Amendment to the United States Constitution. As such, the Court
may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered
doctrinal in this jurisdiction. 30
In the 1967 case of Katz v. United States, 31 the US Supreme Court held
that the act of FBI agents in electronically recording a conversation made by
petitioner in an enclosed public telephone booth violated his right to privacy and
constituted a "search and seizure". Because the petitioner had a reasonable
expectation of privacy in using the enclosed booth to make a personal telephone call,
the protection of the Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right
under prior decisions involved a two-fold requirement: first, that a person has
exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable (objective). 32
In  Mancusi v. DeForte 33 which addressed the reasonable expectations
of private employees in the workplace, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even as the latter or their
guests could enter the office. The Court thus "recognized that employees may have a
reasonable expectation of privacy against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was
addressed in the 1987 case of O'Connor v. Ortega 34 where a physician, Dr. Magno
Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of mismanagement of
the psychiatric residency program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing
cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose
Fourth Amendment rights merely because they work for the government instead of a
private employer." 35 A plurality of four Justices concurred that the correct analysis
has two steps: first, because "some government offices may be so open to fellow
employees or the public that no expectation of privacy is reasonable", a court must
consider "[t]he operational realities of the workplace" in order to determine whether an
employee's Fourth Amendment rights are implicated; and next, where an employee
has a legitimate privacy expectation, an employer's intrusion on that expectation "for
noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the
circumstances." 36 AIcECS
On the matter of government employees' reasonable expectations of privacy
in their workplace, O'Connor teaches:
. . . Public employees' expectations of privacy in their
offices, desks, and file cabinets, like similar expectations of
employees in the private sector, may be reduced by virtue of
actual office practices and procedures, or by legitimate
regulation. . . . The employee's expectation of privacy must be
assessed in the context of the employment relation. An office is
seldom a private enclave free from entry by supervisors, other
employees, and business and personal invitees. Instead, in many
cases offices are continually entered by fellow employees and
other visitors during the workday for conferences, consultations,
and other work-related visits. Simply put, it is the nature of
government offices that others — such as fellow employees,
supervisors, consensual visitors, and the general public — may
have frequent access to an individual's office. We agree with
JUSTICE SCALIA that "[c]onstitutional protection against
unreasonable searches by the government does not disappear
merely because the government has the right to make
reasonable intrusions in its capacity as employer," . . . but some
government offices may be so open to fellow employees or
the public that no expectation of privacy is reasonable. . . .
Given the great variety of work environments in the public
sector, the question of whether an employee has a
reasonable expectation of privacy must be addressed on a
case-by-case basis. 37 (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme
Court declared that Dr. Ortega's Fourth Amendment rights are implicated only if the
conduct of the hospital officials infringed "an expectation of privacy that society is
prepared to consider as reasonable." Given the undisputed evidence that respondent
Dr. Ortega did not share his desk or file cabinets with any other employees, kept
personal correspondence and other private items in his own office while those work-
related files (on physicians in residency training) were stored outside his office, and
there being no evidence that the hospital had established any reasonable regulation
or policy discouraging employees from storing personal papers and effects in their
desks or file cabinets (although the absence of such a policy does not create any
expectation of privacy where it would not otherwise exist), the Court concluded that
Dr. Ortega has a reasonable expectation of privacy at least in his desk and file
cabinets. 38
Proceeding to the next inquiry as to whether the search conducted by
hospital officials was reasonable, the  O'Connor  plurality decision discussed the
following principles:
Having determined that Dr. Ortega had a reasonable
expectation of privacy in his office, the Court of Appeals simply
concluded without discussion that the "search . . . was not a
reasonable search under the fourth amendment." . . . "[t]o hold
that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards
governing such searches . . . [W]hat is reasonable depends on
the context within which a search takes place. . . . Thus, we must
determine the appropriate standard of reasonableness applicable
to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires "balanc[ing]
the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the importance of the governmental
interests alleged to justify the intrusion." . . . In the case of
searches conducted by a public employer, we must balance
the invasion of the employees' legitimate expectations of
privacy against the government's need for supervision,
control, and the efficient operation of the workplace.
xxx xxx xxx
In our view, requiring an employer to obtain a warrant
whenever the employer wished to enter an employee's office,
desk, or file cabinets for a work-related purpose would seriously
disrupt the routine conduct of business and would be unduly
burdensome. Imposing unwieldy warrant procedures in such
cases upon supervisors, who would otherwise have no reason to
be familiar with such procedures, is simply unreasonable. In
contrast to other circumstances in which we have required
warrants, supervisors in offices such as at the Hospital are hardly
in the business of investigating the violation of criminal laws.
Rather, work-related searches are merely incident to the primary
business of the agency. Under these circumstances, the
imposition of a warrant requirement would conflict with the
"common-sense realization that government offices could not
function if every employment decision became a constitutional
matter." . . . cCHITA
xxx xxx xxx
The governmental interest justifying work-related
intrusions by public employers is the efficient and proper
operation of the workplace. Government agencies provide myriad
services to the public, and the work of these agencies would
suffer if employers were required to have probable cause before
they entered an employee's desk for the purpose of finding a file
or piece of office correspondence. Indeed, it is difficult to give the
concept of probable cause, rooted as it is in the criminal
investigatory context, much meaning when the purpose of a
search is to retrieve a file for work-related reasons. Similarly, the
concept of probable cause has little meaning for a routine
inventory conducted by public employers for the purpose of
securing state property. . . . To ensure the efficient and proper
operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.
We come to a similar conclusion for searches
conducted pursuant to an investigation of work-related employee
misconduct. Even when employers conduct an investigation, they
have an interest substantially different from "the normal need for
law enforcement." . . . Public employers have an interest in
ensuring that their agencies operate in an effective and efficient
manner, and the work of these agencies inevitably suffers from
the inefficiency, incompetence, mismanagement, or other work-
related misfeasance of its employees. Indeed, in many cases,
public employees are entrusted with tremendous responsibility,
and the consequences of their misconduct or incompetence to
both the agency and the public interest can be severe. In contrast
to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a
direct and overriding interest in ensuring that the work of the
agency is conducted in a proper and efficient manner. In our
view, therefore, a probable cause requirement for searches of
the type at issue here would impose intolerable burdens on
public employers. The delay in correcting the employee
misconduct caused by the need for probable cause rather
than reasonable suspicion will be translated into tangible
and often irreparable damage to the agency's work, and
ultimately to the public interest. . . . 
xxx xxx xxx
In sum, we conclude that the "special needs, beyond
the normal need for law enforcement make the . . . probable-
cause requirement impracticable," . . . for legitimate, work-
related noninvestigatory intrusions as well as investigations
of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to
ensure the efficient and proper operation of the workplace, nor
authorize arbitrary intrusions upon the privacy of public
employees. We hold, therefore, that public employer intrusions
on the constitutionally protected privacy interests of
government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of
the intrusion must be reasonable:
"Determining the reasonableness of any
search involves a twofold inquiry: first, one must
consider 'whether the . . . action was justified at its
inception,' . . .; second, one must determine whether the
search as actually conducted 'was reasonably related in
scope to the circumstances which justified the
interference in the first place,'" . . .
Ordinarily, a search of an employee's office by a
supervisor will be "justified at its inception" when there are
reasonable grounds for suspecting that the search will turn
up evidence that the employee is guilty of work-related
misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a
needed file. . . . The search will be permissible in its scope
when "the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in
light of . . . the nature of the [misconduct]." . . . 39 (Citations
omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the
factual dispute as to the character of the search and neither was there any finding
made as to the scope of the search that was undertaken, the case was remanded to
said court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.
In  O'Connor  the Court recognized that "special needs" authorize warrantless
searches involving public employees for work-related reasons. The Court thus laid
down a balancing test under which government interests are weighed against the
employee's reasonable expectation of privacy. This reasonableness test implicates
neither probable cause nor the warrant requirement, which are related to law
enforcement. 40
O'Connor was applied in subsequent cases raising issues on employees'
privacy rights in the workplace. One of these cases involved a government employer's
search of an office computer, United States v. Mark L. Simons 41 where the
defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child
pornography. Simons was provided with an office which he did not share with anyone,
and a computer with Internet access. The agency had instituted a policy on computer
use stating that employees were to use the Internet for official government business
only and that accessing unlawful material was specifically prohibited. The policy also
stated that users shall understand that the agency will periodically audit, inspect,
and/or monitor the user's Internet access as deemed appropriate. CIA agents
instructed its contractor for the management of the agency's computer network, upon
initial discovery of prohibited internet activity originating from Simons' computer, to
conduct a remote monitoring and examination of Simons' computer. After confirming
that Simons had indeed downloaded pictures that were pornographic in nature, all the
files on the hard drive of Simon's computer were copied from a remote work station.
Days later, the contractor's representative finally entered Simon's office, removed the
original hard drive on Simon's computer, replaced it with a copy, and gave the original
to the agency security officer. Thereafter, the agency secured warrants and searched
Simons' office in the evening when Simons was not around. The search
team copied the contents of Simons' computer; computer diskettes found in Simons'
desk drawer; computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal correspondence. At his trial,
Simons moved to suppress these evidence, arguing that the searches of his office
and computer violated his Fourth Amendment rights. After a hearing, the district court
denied the motion and Simons was found guilty as charged. CDAcIT
Simons appealed his convictions. The US Supreme Court ruled that the
searches of Simons' computer and office did not violate his Fourth Amendment rights
and the first search warrant was valid. It held that the search remains valid under
the  O'Connor  exception to the warrant requirement because evidence of the crime
was discovered in the course of an otherwise proper administrative inspection.
Simons' violation of the agency's Internet policy happened also to be a violation of
criminal law; this does not mean that said employer lost the capacity and interests of
an employer. The warrantless entry into Simons' office was reasonable under the
Fourth Amendment standard announced in  O'Connor  because at the inception of the
search, the employer had "reasonable grounds for suspecting" that the hard drive
would yield evidence of misconduct, as the employer was already aware that Simons
had misused his Internet access to download over a thousand pornographic images.
The retrieval of the hard drive was reasonably related to the objective of the search,
and the search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate expectation of
privacy with regard to the files in his computer.
. . . To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item
seized. . . . And, in order to prove a legitimate expectation of
privacy, Simons must show that his subjective expectation of
privacy is one that society is prepared to accept as objectively
reasonable. . . .
xxx xxx xxx
Board 43 which involved the constitutionality of a provision in R.A. No. 9165 requiring
. . . We conclude that the remote searches of Simons'
mandatory drug testing of candidates for public office, students of secondary and
computer did not violate his Fourth Amendment rights because,
in light of the Internet policy, Simons lacked a legitimate
expectation of privacy in the files downloaded from the Internet.
Additionally, we conclude that Simons' Fourth Amendment rights
were not violated by FBIS' retrieval of Simons' hard drive from his
office.
Simons did not have a legitimate expectation of
privacy with regard to the record or fruits of his Internet use
in light of the FBIS Internet policy. The policy clearly stated
that FBIS would "audit, inspect, and/or monitor" employees'
use of the Internet, including all file transfers, all websites
visited, and all e-mail messages, "as deemed
appropriate." . . . This policy placed employees on notice that
they could not reasonably expect that their Internet activity would
be private. Therefore, regardless of whether Simons subjectively
believed that the files he transferred from the Internet were
private, such a belief was not objectively reasonable after FBIS
notified him that it would be overseeing his Internet use. . . .
Accordingly, FBIS' actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not
violate the Fourth Amendment.
xxx xxx xxx
The burden is on Simons to prove that he had a
legitimate expectation of privacy in his office. . . . Here,
Simons has shown that he had an office that he did not share. As
noted above, the operational realities of Simons' workplace may
have diminished his legitimate privacy expectations. However,
there is no evidence in the record of any workplace practices,
procedures, or regulations that had such an effect. We therefore
conclude that, on this record, Simons possessed a legitimate
expectation of privacy in his office.
xxx xxx xxx
In the final analysis, this case involves an employee's
supervisor entering the employee's government office and
retrieving a piece of government equipment in which the
employee had absolutely no expectation of privacy — equipment
that the employer knew contained evidence of crimes committed
by the employee in the employee's office. This situation may be
contrasted with one in which the criminal acts of a government
employee were unrelated to his employment. Here, there was a
conjunction of the conduct that violated the employer's policy and
the conduct that violated the criminal law. We consider that FBIS'
intrusion into Simons' office to retrieve the hard drive is one in
which a reasonable employer might engage. . . . 42 (Citations
omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs
tertiary schools, officers and employees of public and private offices, and persons
charged before the prosecutor's office with certain offenses, have also recognized the
fact that there may be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of
reasonableness is the nature of the privacy interest upon which
the drug testing, which effects a search within the meaning of
Sec. 2, Art. III of the Constitution, intrudes. In this case, the office
or workplace serves as the backdrop for the analysis of the
privacy expectation of the employees and the reasonableness of
drug testing requirement. The employees' privacy interest in
an office is to a large extent circumscribed by the company's
work policies, the collective bargaining agreement, if any,
entered into by management and the bargaining unit, and
the inherent right of the employer to maintain discipline and
efficiency in the workplace. Their privacy expectation in a
regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld. (Emphasis
supplied.) ADCETI 
Applying the analysis and principles announced in  O'Connor  and  Simons to
the case at bar, we now address the following questions: (1) Did petitioner have a
reasonable expectation of privacy in his office and computer files?; and (2) Was the
search authorized by the CSC Chair, the copying of the contents of the hard drive on
petitioner's computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include
"(1) the employee's relationship to the item seized; (2) whether the item was in the
immediate control of the employee when it was seized; and (3) whether the employee
took actions to maintain his privacy in the item." These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider the
two questions together. 44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had
a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment. 45
We answer the first in the negative. Petitioner failed to prove that he had an
actual (subjective) expectation of privacy either in his office or government-issued
computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was
always locked and not open to other employees or visitors. Neither did he allege that
he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public
assistance office of the CSC-ROIV, he normally would have visitors in his office like
friends, associates and even unknown people, whom he even allowed to use his
computer which to him seemed a trivial request. He described his office as "full of
people, his friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone, that in fact he stays
in the office as a paying customer." 46 Under this scenario, it can hardly be deduced
that petitioner had such expectation of privacy that society would recognize as
reasonable. aASDTE
Moreover, even assuming arguendo, in the absence of allegation or proof of
the aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the presence
of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly
provides:
POLICY
1. The  Computer Resources are the property of the Civil Service
Commission and may be used only for legitimate
business purposes.
2. Users  shall be permitted access to  Computer Resources to
assist them in the performance of their respective jobs.
3. Use of the  Computer Resources  is a privilege that may be
revoked at any given time.
xxx xxx xxx
No Expectation of Privacy
4. No expectation of privacy. Users  except the Members of the
Commission shall not have an expectation of privacy in
anything they create, store, send, or receive on the
computer system.
The Head of the Office for Recruitment, Examination
and Placement shall select and assign  Users to handle
the confidential examination data and processes.
5. Waiver of privacy rights. Users  expressly waive any right to
privacy in anything they create, store, send, or receive
on the computer through the Internet or any other
computer network. Users understand that the CSC may
use human or automated means to monitor the use
of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer resource
is not a personal property or for the exclusive use of
a  User to whom a memorandum of receipt (MR) has
been issued. It can be shared or operated by other
users. However, he is accountable therefor and must
insure its care and maintenance.
xxx xxx xxx
Passwords
12. Responsibility for passwords. Users shall be responsible for
safeguarding their passwords for access to the
computer system. Individual passwords shall not be
printed, stored online, or given to others.  Users shall be
responsible for all transactions made using their
passwords. No User may access the computer system
with another User's password or account.
13. Passwords do not imply privacy. Use of passwords to gain
access to the computer system or to encode particular
 files or messages does not imply that Users have an
expectation of privacy in the material they create or
receive on the computer system. The Civil Service
Commission has global passwords that permit access to
all materials stored on its networked computer system
regardless of whether those materials have been
encoded with a particular User's  password. Only
members of the Commission shall authorize the
application of the said global passwords. TCEaDI
xxx xxx xxx 47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on
notice that they have no expectation of privacy in anything they create, store, send or
receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that on-the-
spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.
One of the factors stated in O'Connor which are relevant in determining
whether an employee's expectation of privacy in the workplace is reasonable is the
existence of a workplace privacy policy. 48 In one case, the US Court of Appeals
Eighth Circuit held that a state university employee has not shown that he had a
reasonable expectation of privacy in his computer files where the university's
computer policy, the computer user is informed not to expect privacy if the university
has a legitimate reason to conduct a search. The user is specifically told that
computer files, including e-mail, can be searched when the university is responding to
a discovery request in the course of litigation. Petitioner employee thus cannot claim
a violation of Fourth Amendment rights when university officials conducted a
warrantless search of his computer for work-related materials. 49
As to the second point of inquiry on the reasonableness of the search
conducted on petitioner's computer, we answer in the affirmative.
The search of petitioner's computer files was conducted in connection with
investigation of work-related misconduct prompted by an anonymous letter-complaint
addressed to Chairperson David regarding anomalies in the CSC-ROIV where the
head of the  Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering"
for individuals with pending cases in the CSC. Chairperson David stated in her sworn
affidavit:
8. That prior to this, as early as 2006, the undersigned has
received several text messages from unknown sources
adverting to certain anomalies in Civil Service
Commission Regional Office IV (CSCRO IV) such as,
staff working in another government agency, "selling"
cases and aiding parties with pending cases, all done
during office hours and involved the use of government
properties;
9. That said text messages were not investigated for lack of any
verifiable leads and details sufficient to warrant an
investigation;
10. That the anonymous letter provided the lead and details as it
pinpointed the persons and divisions involved in the
alleged irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of
irregularities happening in CSCRO IV and its effect on
the integrity of the Commission, I decided to form a
team of Central Office staff to back up the files in the
computers of the Public Assistance and Liaison Division
(PALD) and Legal Division;
xxx xxx xxx 50
A search by a government employer of an employee's office is justified at
inception when there are reasonable grounds for suspecting that it will turn up
evidence that the employee is guilty of work-related misconduct. 51 Thus, in the 2004
case decided by the US Court of Appeals Eighth Circuit, it was held that where a
government agency's computer use policy prohibited electronic messages with
pornographic content and in addition expressly provided that employees  do not have
any personal privacy rights regarding their use of the agency information systems
and technology, the government employee had no legitimate expectation of privacy
as to the use and contents of his office computer, and therefore evidence found
during warrantless search of the computer was admissible in prosecution for child
pornography. In that case, the defendant employee's computer hard drive was first
remotely examined by a computer information technician after his supervisor received
complaints that he was inaccessible and had copied and distributed non-work-related
e-mail messages throughout the office. When the supervisor confirmed that
defendant had used his computer to access the prohibited websites, in contravention
of the express policy of the agency, his computer tower and floppy disks were taken
and examined. A formal administrative investigation ensued and later search warrants
were secured by the police department. The initial remote search of the hard drive of
petitioner's computer, as well as the subsequent warrantless searches was held as
valid under the O'Connor ruling that a public employer can investigate work-related
misconduct so long as any search is justified at inception and is reasonably related in
scope to the circumstances that justified it in the first place. 52 CAHaST 
Under the facts obtaining, the search conducted on petitioner's computer
was justified at its inception and scope. We quote with approval the CSC's discussion
on the reasonableness of its actions, consistent as it were with the guidelines
established by O'Connor:
Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind of the
Commission that the search of Pollo's computer has successfully
passed the test of reasonableness for warrantless searches in
the workplace as enunciated in the above-discussed American
authorities. It bears emphasis that the Commission pursued
the search in its capacity as a government employer and
that it was undertaken in connection with an investigation
involving a work-related misconduct, one of the
circumstances exempted from the warrant requirement. At the
inception of the search, a complaint was received recounting that
a certain division chief in the CSCRO No. IV was "lawyering" for
 parties having pending cases with the said regional office or in
the Commission. The nature of the imputation was serious, as
it was grievously disturbing. If, indeed, a CSC employee was
found to be furtively engaged in the practice of "lawyering" for
parties with pending cases before the Commission would be a
highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of
doubt upon the institutional integrity of the Commission as a
quasi-judicial agency, and in the process, render it less effective
in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative
tribunal must not only be actually impartial but must be seen to
be so, otherwise the general public would not have any trust and
confidence in it.
Considering the damaging nature of the accusation,
the Commission had to act fast, if only to arrest or limit any
possible adverse consequence or fall-out. Thus, on the same
date that the complaint was received, a search was forthwith
conducted involving the computer resources in the concerned
regional office. That it was the computers that were subjected
to the search was justified since these furnished the easiest
means for an employee to encode and store documents.
Indeed, the computers would be a likely starting point in
ferreting out incriminating evidence. Concomitantly, the
ephemeral nature of computer files, that is, they could easily
be destroyed at a click of a button, necessitated drastic and
immediate action. Pointedly, to impose the need to comply with
the probable cause requirement would invariably defeat the
purpose of the work-related investigation.
Worthy to mention, too, is the fact that the Commission
effected the warrantless search in an open and transparent
manner. Officials and some employees of the regional office, who
happened to be in the vicinity, were on hand to observe the
process until its completion. In addition, the respondent himself
was duly notified, through text messaging, of the search and the
concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the
warrantless search done on computer assigned to Pollo was not,
in any way, vitiated with unconstitutionality. It was a reasonable
exercise of the managerial prerogative of the Commission as an
employer aimed at ensuring its operational effectiveness and
efficiency by going after the work-related misfeasance of its
employees. Consequently, the evidence derived from the
questioned search are deemed admissible. 53
Petitioner's claim of violation of his constitutional right to privacy must
necessarily fail. His other argument invoking the privacy of communication and
correspondence under Section 3 (1), Article III of the 1987 Constitution is also
untenable considering the recognition accorded to certain legitimate intrusions into
the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that O'Connor  and  Simons are
not relevant because the present case does not involve a criminal offense like child
pornography. As already mentioned, the search of petitioner's computer was justified
there being reasonable ground for suspecting that the files stored therein would yield
incriminating evidence relevant to the investigation being conducted by CSC as
government employer of such misconduct subject of the anonymous complaint. This
situation clearly falls under the exception to the warrantless requirement in
administrative searches defined in O'Connor.
The Court is not unaware of our decision in  Anonymous Letter-Complaint
against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of
Manila 54 involving a branch clerk (Atty. Morales) who was investigated on the basis
of an anonymous letter alleging that he was consuming his working hours filing and
attending to personal cases, using office supplies, equipment and utilities. The OCA
conducted a spot investigation aided by NBI agents. The team was able to access
Atty. Morales' personal computer and print two documents stored in its hard drive,
which turned out to be two pleadings, one filed in the CA and another in the RTC of
Manila, both in the name of another lawyer. Atty. Morales' computer was seized and
taken in custody of the OCA but was later ordered released on his motion, but with
order to the MISO to first retrieve the files stored therein. The OCA disagreed with the
report of the Investigating Judge that there was no evidence to support the charge
against Atty. Morales as no one from the OCC personnel who were interviewed would
give a categorical and positive statement affirming the charges against Atty. Morales,
along with other court personnel also charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The
Court  En Banc held that while Atty. Morales may have fallen short of the exacting
standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional right
against unreasonable searches and seizures. The Court found no evidence to
support the claim of OCA that they were able to obtain the subject pleadings with the
consent of Atty. Morales, as in fact the latter immediately filed an administrative case
against the persons who conducted the spot investigation, questioning the validity of
the investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him
for insufficiency of evidence. TacADE
The above case is to be distinguished from the case at bar because, unlike
the former which involved a  personal  computer of a court employee, the computer
from which the personal files of herein petitioner were retrieved is a government-
issued computer, hence government property the use of which the CSC has absolute
right to regulate and monitor. Such relationship of the petitioner with the item seized
(office computer) and other relevant factors and circumstances under American
Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on
Computer Use Policy, failed to establish that petitioner had a reasonable expectation
of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer of
petitioner are admissible in the administrative case against him, we now proceed to
the issue of whether the CSC was correct in finding the petitioner guilty of the charges
and dismissing him from the service.
 Well-settled is the rule that the findings of fact of quasi-judicial agencies, like
the CSC, are accorded not only respect but even finality if such findings are
supported by substantial evidence. Substantial evidence is such amount of relevant
evidence which a reasonable mind might accept as adequate to support a conclusion,
even if other equally reasonable minds might conceivably opine otherwise. 55
The CSC based its findings on evidence consisting of a substantial number
of drafts of legal pleadings and documents stored in his office computer, as well as
the sworn affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar or
exactly the same content-wise with those on the case records of some cases pending
either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also
substantially similar copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting
their pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSC's factual finding regarding the authorship of the
subject pleadings and misuse of the office computer is well-supported by the
evidence on record, thus:
It is also striking to note that some of these documents
were in the nature of pleadings responding to the orders,
decisions or resolutions of these offices or directly in opposition
to them such as a petition for certiorari  or a motion for
reconsideration of CSC Resolution. This indicates that the author
thereof knowingly and willingly participated in the promotion or
advancement of the interests of parties contrary or antagonistic
to the Commission. Worse, the appearance in one of the
retrieved documents the phrase,  "Eric N. Estr[e]llado, Epal
kulang ang bayad mo,"  lends plausibility to an inference that the
preparation or drafting of the legal pleadings was pursued with
less than a laudable motivation. Whoever was responsible for
these documents was simply doing the same for the money —
a  "legal mercenary"  selling or purveying his expertise to the
highest bidder, so to speak. 
Inevitably, the fact that these documents were
retrieved from the computer of Pollo raises the presumption
that he was the author thereof. This is because he had a
control of the said computer. More significantly, one of the
witnesses, Margarita Reyes, categorically testified seeing a
written copy of one of the pleadings found in the case records
lying on the table of the respondent. This was the Petition for
Review in the case of Estrellado addressed to the Court of
Appeals. The said circumstances indubitably demonstrate that
Pollo was secretly undermining the interest of the Commission,
his very own employer.
To deflect any culpability, Pollo would, however, want
the Commission to believe that the documents were the personal
files of some of his friends, including one Attorney Ponciano
Solosa, who incidentally served as his counsel of record during
the formal investigation of this case. In fact, Atty. Solosa himself
executed a sworn affidavit to this effect. Unfortunately, this
contention of the respondent was directly rebutted by the
prosecution witness, Reyes, who testified that during her entire
stay in the PALD, she never saw Atty. Solosa using the computer
assigned to the respondent. Reyes more particularly stated that
she worked in close proximity with Pollo and would have known if
Atty. Solosa, whom she personally knows, was using the
computer in question. Further, Atty. Solosa himself was never
presented during the formal investigation to confirm his sworn
statement such that the same constitutes self-serving evidence
unworthy of weight and credence. The same is true with the other
supporting affidavits, which Pollo submitted. cAHIST
At any rate, even admitting for a moment the said
contention of the respondent, it evinces the fact that he was
unlawfully authorizing private persons to use the computer
assigned to him for official purpose, not only once but several
times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in
effect, acting as a principal by indispensable cooperation . . . Or
at the very least, he should be responsible for serious
misconduct for repeatedly allowing CSC resources, that is, the
computer and the electricity, to be utilized for purposes other
than what they were officially intended.
Further, the Commission cannot lend credence to the
posturing of the appellant that the line appearing in one of the
documents, "Eric N. Estrellado, Epal kulang ang bayad mo,"  was
a private joke between the person alluded to therein, Eric N.
Estrellado, and his counsel, Atty. Solosa, and not indicative of
anything more sinister. The same is too preposterous to be
believed. Why would such a statement appear in a legal pleading
stored in the computer assigned to the respondent, unless he
had something to do with it? 56
Petitioner assails the CA in not ruling that the CSC should not have
entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-
1936 (URACC) requires a verified complaint:
Rule II — Disciplinary Cases
SEC. 8. Complaint. — A complaint against a civil
service official or employee shall not be given due course unless
it is in writing and subscribed and sworn to by the complainant.
However, in cases initiated by the proper disciplining
authority, the complaint need not be under oath.
No anonymous complaint shall be entertained
unless there is obvious truth or merit to the allegation
therein or supported by documentary or direct evidence, in which
case the person complained of may be required to comment.
xxx xxx xxx
We need not belabor this point raised by petitioner. The administrative
complaint is deemed to have been initiated by the CSC itself when Chairperson
David, after a spot inspection and search of the files stored in the hard drive of
computers in the two divisions adverted to in the anonymous letter — as part of the
disciplining authority's own fact-finding investigation and information-gathering —
found a  prima facie case against the petitioner who was then directed to file his
comment. As this Court held in  Civil Service Commission v. Court of Appeals 57 —
Under Sections 46 and 48 (1), Chapter 6, Subtitle A,
Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules
on Administrative Cases in the Civil Service, a complaint may
be initiated against a civil service officer or employee by the
appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the
disciplining authority for Dumlao, filed the complaint, jurisdiction
over Dumlao was validly acquired. (Emphasis supplied.)
As to petitioner's challenge on the validity of CSC OM 10, S. 2002 (CUP),
the same deserves scant consideration. The alleged infirmity due to the said
memorandum order having been issued solely by the CSC Chair and not the
Commission as a collegial body, upon which the dissent of Commissioner Buenaflor
is partly anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor's previous memo expressing his dissent to the
actions and disposition of the Commission in this case. According to Chairperson
David, said memorandum order was in fact exhaustively discussed, provision by
provision in the January 23, 2002 Commission Meeting, attended by her and former
Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the
time saw no need to issue a Resolution for the purpose and further because the CUP
being for internal use of the Commission, the practice had been to issue a
memorandum order. 58 Moreover, being an administrative rule that is merely internal
in nature, or which regulates only the personnel of the CSC and not the public, the
CUP need not be published prior to its effectivity. 59
In fine, no error or grave abuse of discretion was committed by the CA in
affirming the CSC's ruling that petitioner is guilty of grave misconduct, dishonesty,
conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713.
The gravity of these offenses justified the imposition on petitioner of the ultimate
penalty of dismissal with all its accessory penalties, pursuant to existing rules and
regulations. acHCSD
WHEREFORE, the petition for review on certiorari is DENIED. The Decision
dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of
Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.