2008.
Benipayo took his oath of office and assumed the position
LAW ON PUBLIC OFFICERS CASES
1. MATIBAG vs. BENIPAYO
2. GENERAL vs ROCO
3. RE: APPLICATION FOR SURVIVORSHIP PENSION
BENEFITS UNDER RA 9946 OF MRS GRUBA
4. MMDA vs. CONCERNED RESIDENTS OF MANILA
BAY
5. ABELLA VS CRUZABRA
6. CATU vs RELLOSA
7. GONZALES III vs OFFICE OF THE PRESIDENT
8. REGIDOR JR vs CHIONGBIAN
9. MIRANDA vs SANDIGANBAYAN
10. OMBUDSMAN vs DECHAVEZ
11. OMBUDSMAN vs ANDUTAN, Jr.
12. MORALES vs BINAY
G.R. No. 149036, April 02, 2002
MA. J. ANGELINA G. MATIBAG, PETITIONER, VS.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., VELMA J. CINCO, AND
GIDEON C. DE GUZMAN IN HIS CAPACITY AS OFFICER-
IN-CHARGE, FINANCE SERVICES DEPARTMENT OF
THE COMMISSION ON ELECTIONS, RESPONDENTS.
DECISION CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for
the issuance of a writ of preliminary injunction and a temporary
restraining order under Rule 65 of the 1997 Rules of Civil
Procedure. Petitioner Ma. J. Angelina G. Matibag (“Petitioner”
for brevity) questions the constitutionality of the appointment and
the right to hold office of the following: (1) Alfredo L. Benipayo
(“Benipayo” for brevity) as Chairman of the Commission on
Elections (“COMELEC” for brevity); and (2) Resurreccion Z.
Borra (“Borra” for brevity) and Florentino A. Tuason, Jr.
(“Tuason” for brevity) as COMELEC Commissioners. Petitioner
also questions the legality of the appointment of Velma J. Cinco [1]
(“Cinco” for brevity) as Director IV of the COMELEC’s
Education and Information Department (“EID” for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner
as “Acting Director IV” of the EID. On February 15, 2000, then
Chairperson Harriet O. Demetriou renewed the appointment of
petitioner as Director IV of EID in a “Temporary” capacity. On
February 15, 2001, Commissioner Rufino S.B. Javier renewed
again the appointment of petitioner to the same position in a
“Temporary” capacity. [2]
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC Chairman, [3] and
Borra[4] and Tuason [5] as COMELEC Commissioners, each for a
term of seven years and all expiring on February 2,
1|Pa ge
of COMELEC Chairman. Borra and Tuason likewise took their
oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim
appointments of Benipayo, Borra and Tuason for confirmation. [6]
However, the Commission on Appointments did not act on said
appointments.
On June 1, 2001, President Arroyo renewed the ad interim
appointments of Benipayo, Borra and Tuason to the same
positions and for the same term of seven years, expiring on
February 2, 2008.[7] They took their oaths of office for a second
time. The Office of the President transmitted on June 5, 2001
their appointments to the Commission on Appointments for
confirmation.[8]
Congress adjourned before the Commission on Appointments
could act on their appointments. Thus, on June 8, 2001, President
Macapagal Arroyo renewed again the ad interim appointments of
Benipayo, Borra and Tuason to the same positions. [9] The Office
of the President submitted their appointments for confirmation
to the Commission on Appointments. [10] They took their oaths of
office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001[11] addressed to petitioner as
Director IV of the EID and to Cinco as Director III also of the
EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum dated April 14,
2001[12] addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayo’s failure to consult the
Commissioner-in-Charge of the EID in the reassignment of
petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsid er
her relief as Director IV of the EID and her reassignment to the
Law Department.[13] Petitioner cited Civil Service Commission
Memorandum Circular No. 7 dated April 10, 2001, reminding
heads of government offices that “transfer and detail of
employees are prohibited during the election period beginning
January 2 until June 13, 2001.” Benipayo denied her request for
reconsideration on April 18, 2001, [14] citing COMELEC
Resolution No. 3300 dated November 6, 2000, which states in
part:
LAW O N P U B LI C O FFI C ER S
“NOW, THEREFORE, the Commission on Elections by virtue 1. Whether or not the instant petition satisfies all the
of the powers conferred upon it by the Constitution, the Omnibus requirements before this Court may exercise its power of
Election Code and other election laws, as an exception to the judicial review in constitutional cases;
foregoing prohibitions, has RESOLVED, as it is hereb y
RESOLVED, to appoint, hire new employees or fill new 2. Whether or not the assumption of office by Benipayo,
positions and transfer or reassign its personnel, when necessary in Borra and Tuason on the basis of the ad interim
the effective performance of its mandated functions during the appointments issued by the President amounts to a
prohibited period, provided that the changes in the assignment of temporary appointment prohibited by Section 1 (2),
its field personnel within the thirty-day period before election day Article IX-C of the Constitution;
shall be effected after due notice and hearing.”
3. Assuming that the first ad interim appointments and the
Petitioner appealed the denial of her request for reconsideratio n
first assumption of office by Benipayo, Borra and Tuason
to the COMELEC en banc in a Memorandum dated April 23,
are legal, whether or not the renewal of their ad interim
2001.[15] Petitioner also filed an administrative and criminal
appointments and subsequent assumption of office to the
complaint[16] with the Law Department [17] against Benipayo,
same positions violate the prohibition on reappointment
alleging that her reassignment violated Section 261 (h) of the
under Section 1 (2), Article IX-C of the Constitution;
Omnibus Election Code, COMELEC Resolution No. 3258, Civil
Service Memorandum Circular No. 07, s. 001, and other pertinent
4. Whether or not Benipayo’s removal of petitioner from her
administrative and civil service laws, rules and regulations.
position as Director IV of the EID and her reassignment
to the Law Department is illegal and without authority,
During the pendency of her complaint before the Law
having been done without the approval of the COMELEC
Department, petitioner filed the instant petition questioning the
as a collegial body;
appointment and the right to remain in office of Benipayo, Borra
and Tuason, as Chairman and Commissioners of the COMELEC,
5. Whether or not the Officer-in-Charge of the COMELEC’s
respectively. Petitioner claims that the ad interim appointments
Finance Services Department, in continuing to make
of Benipayo, Borra and Tuason violate the constitutional
disbursements in favor of Benipayo, Borra, Tuason and
provisions on the independence of the COMELEC, as well as on
Cinco, is acting in excess of jurisdiction.
the prohibitions on temporary appointments and reappointments
of its Chairman and members. Petitioner also assails as illegal her
First Issue: Propriety of Judicial Review
removal as Director IV of the EID and her reassignment to the
Respondents assert that the petition fails to satisfy all the four
Law Department. Simultaneously, petitioner challenges the
requisites before this Court may exercise its power of judicial review in
designation of Cinco as Officer-in-Charge of the
constitutional cases. Out of respect for the acts of the Executive
EID. Petitioner, moreover, questions the legality of the
department, which is co-equal with this Court, respondents urge this
disbursements made by COMELEC Finance Services
Court to refrain from reviewing the constitutionality of the ad interim
Department Officer-in-Charge Gideon C. De Guzman to
appointments issued by the President to Benipayo, Borra and Tuason
Benipayo, Borra and Tuason by way of salaries and other
unless all the four requisites are present. These are: (1) the existence of
emoluments.
an actual and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the exercise of the
In the meantime, on September 6, 2001, President Macapagal
judicial review is pleaded at the earliest opportunity; and (4) the
Arroyo renewed once again the ad interim appointments of
constitutional issue is the lis mota of the case. [19]
Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years expiring
Respondents argue that the second, third and fourth requisites are absent
on February 2, 2008.[18] They all took their oaths of office anew.
in this case. Respondents maintain that petitioner does not have a
personal and substantial interest in the case because she has not sustained
The Issues
a direct injury as a result of the ad interim appointments of Benipayo, Borra
The issues for resolution of this Court are as follows:
and Tuason and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the positions
assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to
2|Pa ge LAW O N P U B LI C O FFI C ER S
be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the
constitutionality of the ad interim appointments at the earliest
opportunity. Petitioner filed the petition only on August 3, 2001 despite
the fact that the ad interim appointments of Benipayo, Borra and Tuason
were issued as early as March 22, 2001. Moreover, the petition was filed
after the third time that these three respondents were issued ad interim
appointments.
Respondents insist that the real issue in this case is the legality of
petitioner’s reassignment from the EID to the Law
Department. Consequently, the constitutionality of the ad interim
appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting
Director, to the Law Department, where she was placed on detail
service. [20] Respondents claim that the reassignment was “pursuant to x
x x Benipayo’s authority as Chairman of the Commission on
Elections, and as the Commission’s Chief Executive Officer. ”[21]
Evidently, respondents anchor the legality of petitioner’s reassignment
on Benipayo’s authority as Chairman of the COMELEC. The real issue
then turns on whether or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting Director of the EID,
her reassignment is without legal basis if Benipayo is not the lawful
COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman
because he assumed office in accordance with the Constitution, then
petitioner’s reassignment is legal and she has no cause to complain
provided the reassignment is in accordance with the Civil Service
Law. Clearly, petitioner has a personal and material stake in the
resolution of the constitutionality of Benipayo’s assumption of
office. Petitioner’s personal and substantial injury, if Benipayo is not the
lawful COMELEC Chairman, clothes her with the requisite locus standi to
raise the constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning the
constitutionality of the ad interim appointments of Benipayo, Borra and
Tuason. Petitioner filed the instant petition only on August 3, 2001,
when the first ad interim appointments were issued as early as March 22,
2001. However, it is not the date of filing of the petition that determines
whether the constitutional issue was raised at the earliest opportunity.
The earliest opportunity to raise a constitutional issue is to raise it in the
pleadings before a competent court that can resolve the same, such that,
“if it is not raised in the pleadings, it cannot be considered at the trial,
3|Pa ge
and, if not considered at the trial, it cannot be considered on appeal.”[22]
Petitioner questioned the constitutionality of the ad interim appointments
of Benipayo, Borra and Tuason when she filed her petition before this
Court, which is the earliest opportunity for pleading the constitutional
issue before a competent body. Furthermore, this Court may determine,
in the exercise of sound discretion, the time when a constitutional issue
may be passed upon. [23] There is no doubt petitioner raised the
constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges on the
constitutionality of Benipayo’s ad interim appointment and assumption of
office. Unless the constitutionality of Benipayo’s ad interim appointment
and assumption of office is resolved, the legality of petitioner’s
reassignment from the EID to the Law Department cannot be
determined. Clearly, the lis mota of this case is the very constitutional
issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to
the public. The legality of the directives and decisions made by the
COMELEC in the conduct of the May 14, 2001 national elections may
be put in doubt if the constitutional issue raised by petitioner is left
unresolved. In keeping with this Court’s duty to determine whether other
agencies of government have remained within the limits of the
Constitution and have not abused the discretion given them, this Court
may even brush aside technicalities of procedure and resolve any
constitutional issue raised. [24] Here the petitioner has complied with all
the requisite technicalities. Moreover, public interest requires the
resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the
COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which provides as
follows:
“The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments
for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years,
without reappointment. Appointment to any vacancy shall be
only for the unexpired term of the predecessor. In no case shall
any Member be appointed or designated in a temporary or
acting capacity.” (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be
withdrawn or revoked by the President at her pleasure, and can
even be disapproved or simply by-passed by the Commission on
LAW O N P U B LI C O FFI C ER S
Appointments. For this reason, petitioner claims that an ad interim
appointment is temporary in character and consequently
prohibited by the last sentence of Section 1 (2), Article IX-C of
the Constitution.
Based on petitioner’s theory, there can be no ad interim
appointment to the COMELEC or to the other two constitutional
commissions, namely the Civil Service Commission and the
Commission on Audit. The last sentence of Section 1 (2), Article
IX-C of the Constitution is also found in Article IX-B and Article
IX-D providing for the creation of the Civil Service Commission
and the Commission on Audit, respectively. Petitioner interprets
the last sentence of Section 1 (2) of Article IX-C to mean that the
ad interim appointee cannot assume office until his appointment is
confirmed by the Commission on Appointments for only then
does his appointment become permanent and no longer
temporary in character.
The rationale behind petitioner’s theory is that only an appointee
who is confirmed by the Commission on Appointments can
guarantee the independence of the COMELEC. A confirmed
appointee is beyond the influence of the President or members of
the Commission on Appointments since his appointment can no
longer be recalled or disapproved. Prior to his confirmation, the
appointee is at the mercy of both the appointing and confirming
powers since his appointment can be terminated at any time for
any cause. In the words of petitioner, a Sword of Damocles hangs
over the head of every appointee whose confirmation is pending
with the Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because it
takes effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office. The fact
that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in
character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of
Congress. The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
“The President shall have the power to make appointments during
the recess of the Congress, whether voluntary or compulsory, but
such appointments shall be effective only until disapproval by
the Commission on Appointments or until the next adjournment
of the Congress.” (Emphasis supplied)
4|Pa ge
Thus, the ad interim appointment remains effective until such
disapproval or next adjournment, signifying that it can no longer
be withdrawn or revoked by the President. The fear that the
President can withdraw or revoke at any time and for any reason
an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an
ad interim appointment is permanent in character. In Summers vs.
Ozaeta,[25] decided on October 25, 1948, we held that:
“x x x an ad interim appointment is one made in pursuance of
paragraph (4), Section 10, Article VII of the Constitution, which
provides that the ‘President shall have the power to make
appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of
the Congress.’ It is an appointment permanent in nature, and
the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent
character. An ad interim appointment is disapproved certain ly
for a reason other than that its provisional period has expired. Said
appointment is of course distinguishable from an ‘acting’
appointment which is merely temporary, good until another
permanent appointment is issued.” (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad
interim appointment, and thus an ad interim appointment takes
effect immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the
office. In Pacete vs. Secretary of the Commission on Appointments,[26] this
Court elaborated on the nature of an ad interim appointment as
follows:
“A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session and
when it is in recess. In the former, the President nominates, and
only upon the consent of the Commission on Appointments may
the person thus named assume office. It is not so with reference
to ad interim appointments. It takes effect at once. The
individual chosen may thus qualify and perform his function
without loss of time. His title to such office is complete. In
the language of the Constitution, the appointment is effective
‘until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.’”
Petitioner cites Black’s Law Dictionary which defines the term “ad
interim” to mean “in the meantime” or “for the time
being.” Hence, petitioner argues that an ad interim appointment
is undoubtedly temporary in character. This argument is not new
LAW O N P U B LI C O FFI C ER S
and was answered by this Court in Pamantasan ng Lungsod ng
Maynila vs. Intermediate Appellate Court,[27] where we explained that:
“x x x From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the
situation. Private respondent had been extended several ‘ad
interim’ appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal
translation of the word ‘ad interim’ which creates such belief. The
term is defined by Black to mean “in the meantime” or “for the
time being”. Thus, an officer ad interim is one appointed to fill a
vacancy, or to discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent (Black’s Law
Dictionary, Revised Fourth Edition, 1978). But such is not the
meaning nor the use intended in the context of Philippine law. In
referring to Dr. Esteban’s appointments, the term is not
descriptive of the nature of the appointments given to
him. Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of
the Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University Charter
with the power of appointment, is unable to act. x x
x.” (Emphasis supplied)
Thus, the term “ad interim appointment”, as used in letters of
appointment signed by the President, means a permanent
appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary
appointment that can be withdrawn or revoked at any time. The
term, although not found in the text of the Constitution, has
acquired a definite legal meaning under Philippine
jurisprudence. The Court had again occasion to explain the
nature of an ad interim appointment in the more recent case of
Marohombsar vs. Court of Appeals,[28] where the Court stated:
“We have already mentioned that an ad interim appointment is not
descriptive of the nature of the appointment, that is, it is not
indicative of whether the appointment is temporary or in an actin g
capacity, rather it denotes the manner in which the appointment
was made. In the instant case, the appointment extended to
private respondent by then MSU President Alonto, Jr. was issued
without condition nor limitation as to tenure. The permanent
status of private respondent’s appointment as Executive Assistant
II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioner’s submission that private
respondent’s ad interim appointment is synonymous with a
temporary appointment which could be validly terminated
at any time is clearly untenable. Ad interim appointments
are permanent but their terms are only until the Board
disapproves them.” (Emphasis supplied)
5|Pa ge
An ad interim appointee who has qualified and assumed office
becomes at that moment a government employee and therefore
part of the civil service. He enjoys the constitutional protection
that ”[n]o officer or employee in the civil service shall be removed
or suspended except for cause provided by law.” [29] Thus, an ad
interim appointment becomes complete and irrevocable once the
appointee has qualified into office. The withdrawal or revocatio n
of an ad interim appointment is possible only if it is
communicated to the appointee before the moment he qualifies,
and any withdrawal or revocation thereafter is tantamount to
removal from office.[30] Once an appointee has qualified, he
acquires a legal right to the office which is protected not only by
statute but also by the Constitution. He can only be removed for
cause, after notice and hearing, consistent with the requirements
of due process.
An ad interim appointment can be terminated for two causes
specified in the Constitution. The first cause is the disapproval of
his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of Congress
without the Commission on Appointments acting on his
appointment. These two causes are resolutory conditions
expressly imposed by the Constitution on all ad interim
appointments. These resolutory conditions constitute, in effect, a
Sword of Damocles over the heads of ad interim appointees. No
one, however, can complain because it is the Constitution itself
that places the Sword of Damocles over the heads of the ad interim
appointees.
While an ad interim appointment is permanent and irrevocab le
except as provided by law, an appointment or designation in a
temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power. [31] A temporary or actin g
appointee does not enjoy any security of tenure, no matter how
briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in
Brillantes vs. Yorac,[32] this Court struck down
as unconstitutional the designation by then President Corazon
Aquino of Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that:
“A designation as Acting Chairman is by its very terms essentially
temporary and therefore revocable at will. No cause need be
established to justify its revocation. Assuming its validity, the
designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit. It
is doubtful if the respondent, having accepted such designation,
LAW O N P U B LI C O FFI C ER S
will not be estopped from challenging its withdrawal. Commission on Appointments - did not provide for ad interim
xx x appointments. The original intention of the framers of the
Constitution was to do away with ad interim appointments because
the plan was for Congress to remain in session throughout the
The Constitution provides for many safeguards to the
year except for a brief 30-day compulsory recess. However,
independence of the Commission on Elections, foremost among
because of the need to avoid disruptions in essential government
which is the security of tenure of its members. That guarantee is
services, the framers of the Constitution thought it wise to
not available to the respondent as Acting Chairman of the
reinstate the provisions of the 1935 Constitution on ad interim
Commission on Elections by designation of the President of the
appointments. The following discussion during the deliberations
Philippines.”
of the Constitutional Commission elucidates this:
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the “FR. BERNAS: X x x our compulsory recess now is only 30 days.
1935 Constitution, which did not have a provision prohibiting So under such circumstances, is it necessary to provide for ad
temporary or acting appointments to the COMELEC, this Court interim appointments? Perhaps there should be a little discussion
nevertheless declared unconstitutional the designation of the on that.
Solicitor General as acting member of the COMELEC. This
xx x
Court ruled that the designation of an acting Commissioner would
undermine the independence of the COMELEC and hence
MS. AQUINO: My concern is that unless this problem is
violate the Constitution. We declared then: “It would be more in
addressed, this might present problems in terms of
keeping with the intent, purpose and aim of the framers of the
anticipating interruption of government business ,
Constitution to appoint a permanent Commissioner than to
considering that we are not certain of the length of involuntary
designate one to act temporarily.” (Emphasis supplied)
recess or adjournment of the Congress. We are certain, however,
of the involuntary adjournm ent of the Congress which is 30 days,
In the instant case, the President did in fact appoint permanent
but we cannot leave to conjecture the matter of involuntary recess.
Commissioners to fill the vacancies in the COMELEC, subject
only to confirmation by the Commission on
FR. BERNAS: That is correct, but we are trying to look for a
Appointments. Benipayo, Borra and Tuason were extended
formula. I wonder if the Commissioner has a formula x x x.
permanent appointments during the recess of Congress. They
were not appointed or designated in a temporary or actin g xx x
capacity, unlike Commissioner Haydee Yorac in Brillantes vs.
Yorac [34] and Solicitor General Felix Bautista in Nacionalista Party vs.
MR. BENGZON: Madam President, apropos of the matter
Bautista.[35] The ad interim appointments of Benipayo, Borra and
raised by Commissioner Aquino and after conferring with the
Tuason are expressly allowed by the Constitution which
Committee, Commissioner Aquino and I propose the following
authorizes the President, during the recess of Congress, to make
amendment as the last paragraph of Section 16, the wordings of
appointments that take effect immediately.
which are in the 1935 Constitution: THE PRESIDENT SHALL
HAVE THE POWER TO MAKE APPOINTMENTS
While the Constitution mandates that the COMELEC “shall be
DURING THE RECESS OF CONGRESS WHETHER IT BE
independent”[36], this provision should be harmonized with the
VOLUNTARY OR COMPULSORY BUT SUCH
President’s power to extend ad interim appointments. To hold that
APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL
the independence of the COMELEC requires the Commission on
DISAPPROVAL BY THE COMMISSION ON
Appointments to first confirm ad interim appointees before the
APPOINTMENTS OR UNTIL THE NEXT
appointees can assume office will negate the President’s power to
ADJOURNMENT OF THE CONGRESS.
make ad interim appointments. This is contrary to the rule on
statutory construction to give meaning and effect to every
This is otherwise called the ad interim appointments.
provision of the law. It will also run counter to the clear intent of
xx x
the framers of the Constitution.

THE PRESIDENT: Is there any objection to the proposed

The original draft of Section 16, Article VII of the Constitution -
amendment of Commissioners Aquino and Bengzon, adding a
on the nomination of officers subject to confirmation by the
6|Pa ge LAW O N P U B LI C O FFI C ER S
paragraph to the last paragraph of Section 16? (Silence) The Chair 2001 and did not question any more before this Court the
hears none; the amendment is approved.” [37] (Emphasis supplied) applicability of the Gaminde ruling to their own situation.

Clearly, the reinstatement in the present Constitution of the ad

In a Manifestation [43] dated December 28, 2000 filed with this
interim appointing power of the President was for the purpose of
Court in the Gaminde case, Chairperson Demetriou stated that she
avoiding interruptions in vital government services that otherwise
was vacating her office on February 2, 2001, as she believed any
would result from prolonged vacancies in government offices,
delay in choosing her successor might create a “constitutional
including the three constitutional commissions. In his concurrin g
crisis” in view of the proximity of the May 2001 national
opinion in Guevara vs. Inocentes,[38] decided under the 1935
elections. Commissioner Desamito chose to file a petition for
Constitution, Justice Roberto Concepcion, Jr. explained the
intervention [44] in the Gaminde case but this Court denied the
rationale behind ad interim appointments in this manner:
intervention. Thus, Commissioner Desamito also vacated his
“Now, why is the lifetime of ad interim appointments so
office on February 2, 2001.
limited? Because, if they expired before the session of Congress,
the evil sought to be avoided – interruption in the discharge
During an election year, Congress normally goes on voluntary
of essential functions – may take place. Because the same evil
recess between February and June considering that many of the
would result if the appointments ceased to be effective during the
members of the House of Representatives and the Senate run for
session of Congress and before its adjournment. Upon the other
re-election. In 2001, the Eleventh Congress adjourned from
hand, once Congress has adjourned, the evil aforementioned may
January 9, 2001 to June 3, 2001. [45] Concededly, there was no more
easily be conjured by the issuance of other ad interim appointments
time for Benipayo, Borra and Tuason, who were originally
or reappointments.” (Emphasis supplied)
extended ad interim appointments only on March 22, 2001, to be
Indeed, the timely application of the last sentence of Section 16,
confirmed by the Commission on Appointments before the May
Article VII of the Constitution barely avoided the interruption of
14, 2001 elections.
essential government services in the May 2001 national
elections. Following the decision of this Court in Gaminde vs.
If Benipayo, Borra and Tuason were not extended ad interim
Commission on Appointments,[39] promulgated on December 13,
appointments to fill up the three vacancies in the COMELEC,
2000, the terms of office of constitutional officers first appointed
there would only have been one division functioning in the
under the Constitution would have to be counted starting
COMELEC instead of two during the May 2001 elections.
February 2, 1987, the date of ratification of the Constitution,
Considering that the Constitution requires that “all x x x electio n
regardless of the date of their actual appointment. By this
cases shall be heard and decided in division”, [46] the remaining one
reckoning, the terms of office of three Commissioners of the
division would have been swamped with electio n
COMELEC, including the Chairman, would end on February 2,
cases. Moreover, since under the Constitution motions for
2001.[40]
reconsideration “shall be decided by the Commission en banc”, the
mere absence of one of the four remaining members would have
Then COMELEC Chairperson Harriet O. Demetriou was
prevented a quorum, a less than ideal situation considering that
appointed only on January 11, 2000 to serve, pursuant to her
the Commissioners are expected to travel around the cou ntry
appointment papers, until February 15, 2002, [41] the original expiry
before, during and after the elections. There was a great
date of the term of her predecessor, Justice Bernardo P. Pardo,
probability that disruptions in the conduct of the May 2001
who was elevated to this Court. The original expiry date of the
elections could occur because of the three vacancies in the
term of Commissioner Teresita Dy-Liacco Flores was also
COMELEC. The successful conduct of the May 2001 national
February 15, 2002, while that of Commissioner Julio F. Desamito
elections, right after the tumultuous EDSA II and EDSA III
was November 3, 2001.[42] The original expiry dates of the terms
events, was certainly essential in safeguarding and strengthening
of office of Chairperson Demetriou and Commissioners Flores
our democracy.
and Desamito were therefore supposed to fall after the May 2001
elections. Suddenly and unexpectedly, because of the Gaminde
Evidently, the exercise by the President in the instant case of her
ruling, there were three vacancies in the seven-person
constitutional power to make ad interim appointments prevented
COMELEC, with national elections looming less than three and
the occurrence of the very evil sought to be avoided by the second
one-half months away. To their credit, Chairperson Demetriou
paragraph of Section 16, Article VII of the Constitution. This
and Commissioner Flores vacated their offices on February 2,
power to make ad interim appointments is lodged in the President
7|Pa ge LAW O N P U B LI C O FFI C ER S
to be exercised by her in her sound judgment. Under the second
paragraph of Section 16, Article VII of the Constitution, the
President can choose either of two modes in appointing officials
who are subject to confirmation by the Commission on
Appointments. First, while Congress is in session, the President
may nominate the prospective appointee, and pending consent of
the Commission on Appointments, the nominee cannot qualify
and assume office. Second, during the recess of Congress, the
President may extend an ad interim appointment which allows the
appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective
appointee or extend an ad interim appointment is a matter within
the prerogative of the President because the Constitution grants
her that power. This Court cannot inquire into the propriety of
the choice made by the President in the exercise of her
constitutional power, absent grave abuse of discretion amounting
to lack or excess of jurisdiction on her part, which has not been
shown in the instant case.
The issuance by Presidents of ad interim appointments to the
COMELEC is a long-standing practice. Former President
Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg. [47] Former President Fidel V.
Ramos extended ad interim appointments to Commissioners Julio
F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and
Manolo F. Gorospe. [48] Former President Joseph Estrada also
extended ad interim appointments to Commissioners Abdul Gani
M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
Ralph C. Lantion. [49]
The President’s power to extend ad interim appointments may
indeed briefly put the appointee at the mercy of both the
appointing and confirming powers. This situation, however, is
only for a short period - from the time of issuance of the ad interim
appointment until the Commission on Appointments gives or
withholds its consent. The Constitution itself sanctions this
situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balan ce
under the separation of powers, as a trade-off against the evil of
granting the President absolute and sole power to appoint. The
Constitution has wisely subjected the President’s appointing
power to the checking power of the legislature.
This situation, however, does not compromise the independence
of the COMELEC as a constitutional body. The vacancies in the
COMELEC are precisely staggered to insure that the majority of
8|Pa ge
its members hold confirmed appointments, and not one President
will appoint all the COMELEC members. [50] In the instant case,
the Commission on Appointments had long confirmed four [51] of
the incumbent COMELEC members, comprising a majority, who
could now be removed from office only by impeachment. The
special constitutional safeguards that insure the independence of
the COMELEC remain in place. [52] The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice. Moreover,
the salaries of COMELEC members cannot be decreased during
their tenure.
In fine, we rule that the ad interim appointments extended by the
President to Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively, do not constitute
temporary or acting appointments prohibited by Section 1 (2),
Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and
the first assumption of office by Benipayo, Borra and Tuason are
constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution, which provides as follows:
“The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a
term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five
years, and the last members for three years, without reappointment. X
x x.” (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the
Commission on Appointments, his ad interim appointment can no longer
be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this
is particularly true to permanent appointees who have assumed office,
which is the situation of Benipayo, Borra and Tuason if their ad interim
appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the
Commission on Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing
authority of the President. The disapproval is a decision on the merits,
being a refusal by the Commission on Appointments to give its consent
after deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such decision, the
LAW O N P U B LI C O FFI C ER S
disapproval is final and binding on the appointee as well as on the
appointing power. In this instance, the President can no longer renew
the appointment not because of the constitutional prohibition on
reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or
failure of the Commission on Appointments to organize is another
matter. A by-passed appointment is one that has not been finally acted
upon on the merits by the Commission on Appointments at the close of
the session of Congress. There is no final decision by the Commission
on Appointments to give or withhold its consent to the appointment as
required by the Constitution. Absent such decision, the President is free
to renew the ad interim appointment of a by-passed appointee. This is
recognized in Section 17 of the Rules of the Commission on
Appointments, which provides as follows:
“Section 17. Unacted Nominations or Appointments Returned to the
President. Nominations or appointments submitted by the President of
the Philippines which are not finally acted upon at the close of the session
of Congress shall be returned to the President and, unless new
nominations or appointments are made, shall not again be considered
by the Commission.” (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-
passed appointment can be considered again if the President renews the
appointment.
It is well settled in this jurisdiction that the President can renew the ad
interim appointments of by-passed appointees. Justice Roberto
Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs.
Inocentes [53] why by-passed ad interim appointees could be extended new
appointments, thus:
“In short, an ad interim appointment ceases to be effective upon
disapproval by the Commission, because the incumbent can not continue
holding office over the positive objection of the Commission. It ceases,
also, upon “the next adjournment of the Congress”, simply because the
President may then issue new appointments - not because of implied
disapproval of the Commission deduced from its inaction during the
session of Congress, for, under the Constitution, the Commission may
affect adversely the interim appointments only by action, never by
omission. If the adjournment of Congress were an implied disapproval
of ad interim appointments made prior thereto, then the President could
no longer appoint those so by-passed by the Commission. But, the fact
is that the President may reappoint them , thus clearly indicating that
the reason for said termination of the ad interim appointments is not the
disapproval thereof allegedly inferred from said omission of the
Commission, but the circumstance that upon said adjournment of the
9|Pa ge
Congress, the President is free to make ad interim appointments or
reappointments.” (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the
second paragraph of Section 16, Article VII of the present Constitution
on ad interim appointments was lifted verbatim.[54] The jurisprudence
under the 1935 Constitution governing ad interim appointments by the
President is doubtless applicable to the present Constitution. The
established practice under the present Constitution is that the President
can renew the appointments of by-passed ad interim appointees. This is a
continuation of the well-recognized practice under the 1935 Constitution,
interrupted only by the 1973 Constitution which did not provide for a
Commission on Appointments but vested sole appointing power in the
President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the
Constitution applies neither to disapproved nor by-passed ad interim
appointments. A disapproved ad interim appointment cannot be revived
by another ad interim appointment because the disapproval is final under
Section 16, Article VII of the Constitution, and not because a
reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a
new ad interim appointment because there is no final disapproval under
Section 16, Article VII of the Constitution, and such new appointment
will not result in the appointee serving beyond the fixed term of seven
years.
Section 1 (2), Article IX-C of the Constitution provides that “[t]he
Chairman and the Commissioners shall be appointed x x x for a term of
seven years without reappointment. ” (Emphasis supplied) There are
four situations where this provision will apply. The first situation is
where an ad interim appointee to the COMELEC, after confirmation by
the Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member
or as a chairman, because he will then be actually serving more than seven
years. The second situation is where the appointee, after confirmation,
serves a part of his term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed, whether as a member
or as a chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven
years. The third situation is where the appointee is confirmed to serve
the unexpired term of someone who died or resigned, and the appointee
completes the unexpired term. Such person cannot be reappointed,
whether as a member or chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more
than seven years.
The fourth situation is where the appointee has previously served a term
LAW O N P U B LI C O FFI C ER S
of less than seven years, and a vacancy arises from death or
resignation. Even if it will not result in his serving more than seven years,
a reappointment of such person to serve an unexpired term is also
prohibited because his situation will be similar to those appointed under
the second sentence of Section 1 (2), Article IX-C of the Constitution.
This provision refers to the first appointees under the Constitution whose
terms of office are less than seven years, but are barred from ever being
reappointed under any situation. Not one of these four situations
applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who
has served any term of office as COMELEC member – whether for a full
term of seven years, a truncated term of five or three years, or even
for an unexpired term of any length of time – can no longer be
reappointed to the COMELEC. Commissioner Foz succinctly explained
this intent in this manner:
“MR. FOZ. But there is the argument made in the concurring opinion
of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the effect
that the prohibition on reappointment applies only when the term or
tenure is for seven years. But in cases where the appointee serves only for
less than seven years, he would be entitled to reappointment. Unless we
put the qualifying words “without reappointment” in the case of
those appointed, then it is possible that an interpretation could be
made later on their case, they can still be reappointed to serve for a
total of seven years.
Precisely, we are foreclosing that possibility by making it clear that
even in the case of those first appointed under the Constitution, no
reappointment can be made.”[55] (Emphasis supplied)
In Visarra vs. Miraflor, [56] Justice Angelo Bautista, in his concurring
opinion, quoted Nacionalista vs. De Vera [57] that a “[r]eappointment is not
prohibited when a Commissioner has held office only for, say, three or
six years, provided his term will not exceed nine years in all.” This was
the interpretation despite the express provision in the 1935 Constitution
that a COMELEC member “shall hold office for a term of nine years and
may not be reappointed.”
To foreclose this interpretation, the phrase “without reappointment ”
appears twice in Section 1 (2), Article IX-C of the present
Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of seven years. The second phrase
prohibits reappointment of any person previously appointed for a term
of five or three years pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the person previously
appointed completes his term of office for the intention is to prohibit any
reappointment of any kind.
10 | P a g e
However, an ad interim appointment that has lapsed by inaction of the
Commission on Appointments does not constitute a term of office. The
period from the time the ad interim appointment is made to the time it
lapses is neither a fixed term nor an unexpired term. To hold otherwise
would mean that the President by his unilateral action could start and
complete the running of a term of office in the COMELEC without the
consent of the Commission on Appointments. This interpretation
renders inutile the confirming power of the Commission on
Appointments.
The phrase “without reappointment” applies only to one who has been
appointed by the President and confirmed by the Commission on
Appointments, whether or not such person completes his term of
office. There must be a confirmation by the Commission on
Appointments of the previous appointment before the prohibition on
reappointment can apply. To hold otherwise will lead to absurdities and
negate the President’s power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually
fails to act, for lack of time, on the ad interim appointments first issued to
appointees. If such ad interim appointments can no longer be renewed,
the President will certainly hesitate to make ad interim appointments
because most of her appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim appointments, a
power intended to avoid disruptions in vital government services. This
Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional
commissions. The framers of the present Constitution prohibited
reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and
confirmed even if they served for less than seven years. The second is to
insure that the members of the three constitutional commissions do not
serve beyond the fixed term of seven years. As reported in the Journal of
the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored[58]the proposed articles on the three constitutional
commissions, outlined the four important features of the proposed
articles, to wit:
“Mr. Foz stated that the Committee had introduced basic changes in the
common provision affecting the three Constitutional Commissions, and
which are: 1) fiscal autonomy which provides (that) appropriations shall
be automatically and regularly released to the Commission in the same
manner (as) provided for the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure continuity of functions
and to minimize the opportunity of the President to appoint all the
LAW O N P U B LI C O FFI C ER S
members during his incumbency; 3) prohibition to decrease salaries of
the members of the Commissions during their term of office; and 4) Not contented with these ironclad twin prohibitions, the framers of the
appointments of members would not require confirmation.”[59] Constitution tightened even further the screws on those who might wish
(Emphasis supplied) to extend their terms of office. Thus, the word “designated” was inserted
to plug any loophole that might be exploited by violators of the
There were two important amendments subsequently made by the
Constitution, as show n in the following discussion in the Constitutional
Constitutional Commission to these four features. First, as discussed
Commission:
earlier, the framers of the Constitution decided to require confirmation
“MR. DE LOS REYES: On line 32, between the words “appointed” and
by the Commission on Appointments of all appointments to the
“in”, I propose to insert the words OR DESIGNATED so that the
constitutional commissions. Second, the framers decided to strengthen
whole sentence will read: “In no case shall any Member be appointed OR
further the prohibition on serving beyond the fixed seven-year term, in
DESIGNATED in a temporary or acting capacity.”
the light of a former chair of the Commission on Audit remaining in
office for 12 years despite his fixed term of seven years. The following
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee
exchange in the deliberations of the Constitutional Commission is
say?
instructive:
“MR. SUAREZ: These are only clarificatory questions, Madam
MR. FOZ: But it changes the meaning of this sentence. The sentence
President. May I call the sponsor’s attention, first of all, to Section 2 (2)
reads: “In no case shall any Member be appointed in a temporary or
on the Civil Service Commission wherein it is stated: “In no case shall
acting capacity.”
any Member be appointed in a temporary or acting capacity.” I detect in
the Committee’s proposed resolutions a constitutional hangover, if I may
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this
use the term, from the past administration. Am I correct in concluding
amendment is that some lawyers make a distinction between an
that the reason the Committee introduced this particular provision is to
appointment and a designation. The Gentleman will recall that in the
avoid an incident similar to the case of the Honorable Francisco Tantuico
case of Commissioner on Audit Tantuico, I think his term exceeded the
who was appointed in an acting capacity as Chairman of the Commission
constitutional limit but the Minister of Justice opined that it did not
on Audit for about 5 years from 1975 until 1980, and then in 1980, was
because he was only designated during the time that he acted as
appointed as Chairman with a tenure of another 7 years. So, if we follow
Commissioner on Audit. So, in order to erase that distinction between
that appointment to (its) logical conclusion, he occupied that position for
appointment and designation, we should specifically place the word so
about 12 years in violation of the Constitution?
that there will be no more ambiguity. “In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity.”
MR. FOZ: It is only one of the considerations. Another is really to
make sure that any member who is appointed to any of the
commissions does not serve beyond 7 years. ”[60] (Emphasis supplied) MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

Commissioner Christian Monsod further clarified the prohibition on

MR. DE LOS REYES: Thank you.
reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she
THE PRESIDING OFFICER (Mr. Trenas): Is there any
will notice that there is no reappointment of any kind and, therefore
objection? (Silence) The Chair hears none; the amendment is
as a whole there is no way that somebody can serve for more than seven
approved.”[62]
years. The purpose of the last sentence is to make sure that this does
not happen by including in the appointment both temporary and The ad interim appointments and subsequent renewals of appointments of
acting capacities."[61] (Emphasis supplied) Benipayo, Borra and Tuason do not violate the prohibition on
reappointments because there were no previous appointments that were
Plainly, the prohibition on reappointment is intended to insure that there
confirmed by the Commission on Appointments. A reappointment
will be no reappointment of any kind. On the other hand, the prohibition
presupposes a previous confirmed appointment. The same ad interim
on temporary or acting appointments is intended to prevent any
appointments and renewals of appointments will also not breach the
circumvention of the prohibition on reappointment that may result in an
seven-year term limit because all the appointments and renewals of
appointee’s total term of office exceeding seven years. The evils sought
appointments of Benipayo, Borra and Tuason are for a fixed term
to be avoided by the twin prohibitions are very specific - reappointment
expiring on February 2, 2008.[63] Any delay in their confirmation will
of any kind and exceeding one’s term in office beyond the maximum
not extend the expiry date of their terms of office. Consequently, there is
period of seven years.
11 | P a g e LAW O N P U B LI C O FFI C ER S
no danger whatsoever that the renewal of the ad interim appointments of
these three respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The continuing
renewal of the ad interim appointment of these three respondents, for so
long as their terms of office expire on February 2, 2008, does not violate
the prohibition on reappointments in Section 1 (2), Article IX-C of the
Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove her as
Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC, acting
as a collegial body, can authorize such reassignment. Moreover,
petitioner maintains that a reassignment without her consent amounts to
removal from office without due process and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not possess any
color of title to the office of Chairman of the COMELEC. We have
ruled, however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office
for so long as his ad interim appointment remains effective. Under
Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative
Code, the Chairman of the COMELEC is vested with the following
power:
“Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman,
who shall be the Chief Executive Officer of the Commission, shall:
x x
(4) Make temporary assignments, rotate and transfer personnel in
accordance with the provisions of the Civil Service Law.” (Emphasis
supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly
empowered on his own authority to transfer or reassign COMELEC
personnel in accordance with the Civil Service Law. In the exercise of
this power, the Chairman is not required by law to secure the approval of
the COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999, February 15,
2000 and February 15, 2001, attached as Annexes “X“, “Y” and “Z” to
her Petition, indisputably show that she held her Director IV position in
the EID only in an acting or temporary capacity. [64] Petitioner is not a
Career Executive Service (CES) officer, and neither does she hold Career
Executive Service Eligibility, which are necessary qualifications for
holding the position of Director IV as prescribed in the Qualifications
12 | P a g e
Standards (Revised 1987) issued by the Civil Service Commission. [65]
Obviously, petitioner does not enjoy security of tenure as Director
IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal, [66] this
Court held that:
“As respondent does not have the rank appropriate for the position of
Chief Public Attorney, her appointment to that position cannot be
considered permanent, and she can claim no security of tenure in respect
of that position. As held in Achacoso v. Macaraig:
‘It is settled that a permanent appointment can be issued only ‘to a person
who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed.’ Achacoso did
not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing
authority and ‘at a moment’s notice’, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does
not possess the required qualifications. Such right will have to depend
on the nature of his appointment, which in turn depends on his eligibility
or lack of it. A person who does not have the requisite qualifications for
the position cannot be appointed to it in the first place, or as an exception
to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him
cannot be regarded as permanent even if it may be so designated x x x.’”
Having been appointed merely in a temporary or acting capacity, and not
possessed of the necessary qualifications to hold the position of Director
IV, petitioner has no legal basis in claiming that her reassignment was
contrary to the Civil Service Law. This time, the vigorous argument of
x
petitioner that a temporary or acting appointment can be withdrawn or
revoked at the pleasure of the appointing power happens to apply
squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election
period, as a prohibited act under Section 261 (h) of the Omnibus Election
Code, which provides as follows:
“Section 261. Prohibited Acts. The following shall be guilty of an
election offense:
x x x
(h) Transfer of officers and employees in the civil service - Any public
official who makes or causes any transfer or detail whatever of any officer
or employee in the civil service including public school teachers, within
the election period except upon prior approval of the Commission.”
Petitioner claims that Benipayo failed to secure the approval of the
COMELEC en banc to effect transfers or reassignments of COMELEC
LAW O N P U B LI C O FFI C ER S
personnel during the election period. [67] Moreover, petitioner insists that
the COMELEC en banc must concur to every transfer or reassignment of
COMELEC personnel during the election
Contrary to petitioner’s allegation, the COMELEC did in fact issue
COMELEC Resolution No. 3300 dated November 6, 2000,[68] exempting
the COMELEC from Section 261 (h) of the Omnibus Election
Code. The resolution states in part:
“WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the
Omnibus Election Code provides as follows:
x x
Sec. 261. Prohibited Acts. The following shall be guilty of an election
offense:
x xx
(h) Transfer of officers and employees in the civil service – Any public
official who makes or causes any transfer or detail whatever of any officer
or employee in the civil service including public school teachers, within
the election period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national
and local elections on May 14,
WHEREAS, there is an urgent need to appoint, transfer or reassign
personnel of the Commission on Elections during the prohibited period
in order that it can carry out its constitutional duty to conduct free,
orderly, honest, peaceful and credible
“NOW, THEREFORE, the Commission on Elections by virtue of the
powers conferred upon it by the Constitution, the Omnibus Election
Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint,
hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its
mandated functions during the prohibited period , provided that the
changes in the assignment of its field personnel within the thirty-day
period before election day shall be effected after due notice and
hearing.” (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice
and hearing before any transfer or reassignment can be made within thirty
days prior to election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under the Revised
Administrative Code, [69] the COMELEC Chairman is the sole officer
specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the
authority to transfer or reassign COMELEC personnel pursuant to
COMELEC Resolution No. 3300. The COMELEC en banc cannot
13 | P a g e
arrogate unto itself this power because that will mean amending the
Revised Administrative Code, an act the COMELEC en banc cannot
period. legally do.
COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of
the COMELEC as a collegial body. Interpreting Resolution No. 3300
to require such concurrence will render the resolution meaningless since
the COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300
x should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval
from the COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized by law to
transfer or reassign COMELEC personnel. The person holding that
office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment
of COMELEC personnel during the election period. Thus, Benipayo’s
order reassigning petitioner from the EID to the Law Department does
not violate Section 261 (h) of the Omnibus Election Code. For the same
2001;
reason, Benipayo’s order designating Cinco Officer-in-Charge of the EID
is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
elections;
Based on the foregoing discussion, respondent Gideon C. De Guzman,
Officer-in-Charge of the Finance Services Department of the
Commission on Elections, did not act in excess of jurisdiction in paying
the salaries and other emoluments of Benipayo, Borra, Tuason and
Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against
petitioner. SO ORDERED.
G.R. No. 143366, January 29, 2001
LUIS MARIO M. GENERAL, PETITIONER, VS.
RAMON S. ROCO, RESPONDENT.
G.R. NO. 143524
THE EXECUTIVE SECRETARY, SECRETARY OF
TRANSPORTATION AND COMMUNICATIONS,
UNDERSECRETARY FOR STAFF SERVICES OF THE
DOTC AND THE ASSISTANT SECRETARY FOR
LAND TRANSPORTATION, PETITIONERS, VS.
RAMON S. ROCO, RESPONDENT.
D E C I S I O N YNARES-SANTIAGO, J.:
LAW O N P U B LI C O FFI C ER S
Respondent Ramon S. Roco was appointed by then President Fidel V. will not suffice. Petitioners contended that unless and until an employee
Ramos on August 26, 1996 as Regional Director of the Land in the career executive service is appointed to the appropriate CES rank,
Transportation Office (LTO) in Region V, a position equivalent to CES he acquires no security of tenure.
rank level V. He forthwith began to assume and discharge the duties and
responsibilities of the said office. Subsequently, then President Joseph E. The petitions are impressed with merit.
Estrada re-appointed him to the same position on February 8, 1999. At
the time of respondent's appointment in 1996 and 1999, he was not a Section 27 (1), of the Civil Service Law (Subtitle A, Tittle I, Book
CES eligible. However, during his incumbency, or on August 13, 1999, V of E.O. No. 292), provides:
he was conferred CES eligibility by the Career Executive Service Board.
(1) Permanent status. - A permanent appointment shall be issued
to a person who meets all the requirements for the position to
On September 7, 1999, petitioner Luis Mario General, who is not a CES
which he is being appointed, including the appropriate eligibility
eligible, [1] was appointed by President Estrada as Regional Director of the
prescribed, in accordan ce with the provisions of law, rules and
LTO in Region V, the same position being occupied by respondent.
standards promulgated in pursuance thereof.
Pursuant thereto, DOTC Undersecretary Herminio B. Coloma, Jr., as
Officer-in-Charge of the Department, issued a Memorandum directing In the career executive service, the acquisition of security of
petitioner General to assume the said office immediately and for tenure which presupposes a permanent appointment is governed
respondent Roco to report to the Office of the Secretary "for further by the rules and regulations promulgated by the CES Board, [5]
instructions." Accordingly, petitioner General assumed office on thus:
September 16, 1999.
Career Executive Service Eligibility

Aggrieved, respondent Roco filed before the Court of Appeals a petition

for quo warranto with prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order. The Court of Appeals
issued a TRO enabling respondent Roco to re-assume the disputed office.
After the lapse of 60 days, there being no writ of preliminary injunction
issued, petitioner General again assumed the said office. On March 10,
2000, the Court of Appeals rendered a decision affirming the
appointment of respondent Roco to the Office of Regional Director of
the LTO, Region V, nullified the appointment of petitioner General and
ordered him to vacate the subject post in favor of respondent Roco. [2]
Upon motion of respondent Roco, the Court of Appeals issued a writ of
execution pending appeal. [3]
From the Court of Appeals' decision, two separate petitions for review
under Rule 45 were filed before this Court. The first one, which was filed
by General against Roco, was docketed as G.R. No. 143366; while the
second petition was filed by the Solicitor General on behalf of the
Executive Secretary, the Secretary, Undersecretary and Assistant
Secretary of the DOTC, also against Roco, and was docketed as G.R. No.
143524. On June 26, 2000, the Court issued a Resolution in G.R. No.
143366 directing the parties to maintain the status quo ante. [4] Both
petitions were later consolidated.
The thrust of respondent's argument is that a career executive service
(CES) eligibility is all that an employee needs to acquire security of tenure
in the service; and that appointment to a CES rank is not necessary for
the acquisition of such security of tenure. On the other hand, petitioners
in G.R. No. 143524 and G.R. No. 143366, claim that CES eligibility alone
14 | P a g e
Passing the CES examination entitles the examinee to a
conferment of a CES eligibility and the inclusion of his name
in the roster of CES eligibles. Conferment of CES eligibility is done
by the Board through a formal Board Resolution after an evaluation is done
of the examinee's performance in the four stages of the CES elig ibility
examinations.
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the other
requirements prescribed by the Board, an incumbent of a CES position may
qualify for appointment to a CES rank. Appointment to a CES rank is
made by the President upon the recommendation of the Board. This
process completes the official's membership in the CES and
most importantly, confers on him security of tenure in the
CES.
There are six (6) ranks in the CES ranking structure. The highest ran k is
that of a Career Executive Service Officer I (CESO I), while the lowest is
that of CESO VI.
The appropriate CESO rank to which a CES eligible may be appointed
depends on two major qualification criteria, namely: (1) level of managerial
responsibility; and, (2) performance.
Performance is determined by the official's performance rating obtained in the
annual CESPES. On the other hand, managerial responsibility is based on
LAW O N P U B LI C O FFI C ER S
the level of the general duties and responsibilities which an eligible is
performing, as follows:
Levels of Duties and Responsibilities Rank
Equivalent
if level of managerial responsibilities are comparable to
that of an Undersecretary I level employees in the civil service), pertains only to rank and not
if comparable to that of an Assistant Secretary II
if comparable to that of a Bureau Director, or a
III
Department Regional Director
if comparable to that of an Assistant Bureau Director,
Department Assistant Regional Director or Department
Service Chief IV
if comparable to that of Bureau Regional Director V CES position with lower salary grade, as he is compensated
if comparable to that of a Bureau Assistant Regional
Director
VI
As a general rule, a CES eligible will be recommended for appointment to the
rank equivalent of the level of his managerial responsibility if his performance
rating is Satisfactory or higher. If the performance rating is Outstanding, he
will be recommended one rank higher than his level of managerial
responsibility. (Emphasis supplied)
So also, pertinent provisions of the Integrated Reorganization
Plan,[6] read:
c. Appointment. Appointment to appropriate classes in the Career
Executive Service shall be made by the President from a list of career
executive eligibles recommended by the Board. Such appointments shall
be made on the basis of rank; provided that appointments to higher
ranks which qualify the incumbents to assignments as undersecretary
and heads of bureaus and offices and equivalent positions shall be with
the confirmation of the Commission on Appointments. The President
may, however, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall
subsequently take the required Career Executive Service examination
and that he shall not be promoted to a higher class until he qualifies
in such examination.
xx xx xx xx x
e. Assignments Reassignments and Transfers. Depending upon their
ranks, members of the Service shall be assigned to occupy positions of
undersecretary, Assistant Secretary. Bureau Director, Assistant
Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as
may be identified by the Board on the basis of the members' functional
expertise.
As clearly set forth in the foregoing provisions, two requisites
must concur in order that an employee in the career executive
service may attain security of tenure, to wit:
15 | P a g e
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure of
employees in the career executive service (except first and second-
to the office or to the position to which they may be appointed.
Thus, a career executive service officer may be transferred or
reassigned from one position to another without losing his rank
which follows him wherever he is transferred or reassigned. In
fact, a CESO suffers no diminution of salary even if assigned to a
according to his CES rank and not on the basis of the position or
office he occupies. [7]
In the case at bar, there is no question that respondent Ramon S.
Roco, though a CES eligible, does not possess the appropriate
CES rank, which is - CES rank level V, for the position of
Regional Director of the LTO (Region V). Falling short of one of
the qualifications that would complete his membership in the
CES, respondent cannot successfully interpose violation of
security of tenure. Accordingly, he could be validly reassigned to
other positions in the career executive service. Thus, in Achacoso v.
Macaraig,[8] the Court held that:
It is settled that a permanent appointment can be issued only "to a person who
meets all the requirement for the position to which he is being appointed,
including the appropriate eligibility prescribed." Achacoso did not. At best,
therefore, his appointment could be regarded only as temporary. And being so,
it could be withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
xxxxxxxxx
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not possess
the required qualifications. Such right will have to depend on the nature of his
appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be
appointed to it in the first place or, as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of appropriate
eligibles. The appointment extended to him cannot be regarded as permanent
even if it may be so designated.
Moreover, under the mobility and flexibility principles [9] of the
Integrated Reorganization Plan, CES personnel may be reassigned
or transferred from one position to another, thus:
LAW O N P U B LI C O FFI C ER S
e. Assignments, Reassignments and Transferees ...
Any provision of law to the contrary notwithstanding, members of the Career
Executive Service may be reassigned or transferred from one position to
another and from one department, bureau or office to another; provided that
such reassignment or transfer is made in the interest of public service and
involves no reduction in rank or salary; provided, further, that no member
shall be reassigned or transferred oftener than every two years; and provided,
furthermore, that if the officer concerned believes that his reassignment or
transfer is not justified, he may appeal his case to the President. [10]
One last point. Respondent capitalizes on the fact that petitioner
Luis Mario M. General is not a CES eligible. The absence,
however, of such CES eligibility is of no moment. As stated in
Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated
Reorganization Plan -
"...the President may, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall
subsequently take the required Career Executive Service examination and
that he shall not be promoted to a higher class until he qualified in such
examination."
Evidently, the law allows appointment of those who are not CES
eligible, subject to the obtention of said eligibility, in the same
manner that the appointment of respondent who does not possess
the required CES rank (CES rank level V) for the position of
Regional Director of the LTO, is permitted in a temporary
capacity.
WHEREFORE, the petition is GRANTED, and the March 10,
2000 Decision and the June 9, 2000 Resolution of the Court of
Appeals in CA-G.R. SP No. 55000, is SET ASIDE. The petition
for quo warranto and prohibition filed by respondent is hereb y
DISMISSED. SO ORDERED.
A.M. No. 14155-Ret., November 19, 2013
RE: APPLICATION FOR SURVIVORSHIP PENSION
BENEFITS UNDER REPUBLIC ACT NO. 9946 OF MRS.
PACITA A. GRUBA, SURVIVING SPOUSE OF THE
LATE MANUEL K. GRUBA, FORMER CTA ASSOCIATE
JUDGE.
R E S O L U T I O N LEONEN, J.:
We stand in awe of death’s inevitability and tragic immutability,
but we can temper the effects of the law on those it leaves behind.
This case involves a judge of the Court of Tax Appeals [1] who died
while in service. He died at the age of 55 years, two (2) months,
16 | P a g e
and six (6) days. He died prior to the enactment of Republic Act
No. 9946, which substantially amended the benefits provided in
Republic Act No. 910.
We are asked to decide whether the death gratuity benefits and
the survivorship pension benefits under Republic Act No. 9946
apply to this case.
We rule to grant death gratuity benefits.
Manuel K. Gruba (Judge Gruba) was born on April 19, 1941. He
began his government service on December 3, 1979 as Senior
Revenue Executive Assistant I at the Bureau of Internal Revenue.
He rose from the ranks at the Bureau of Internal Revenue until he
was appointed as an Associate Judge of the Court of Tax Appeals
on September 17, 1992.
On June 25, 1996, Judge Gruba passed away. The cause of his
death was natural and was reported as brain stem/midbrain
stroke, basilar artery thrombosis, embolic event. [2] He was 55 years
old when he died. He was in government service for a total of 16
years, six (6) months, and 21 days. In those years, he rendered
service for three (3) years, nine (9) months, and eight (8) days in
the Judiciary.
The surviving spouse of Judge Gruba, Mrs. Pacita A. Gruba (Mrs.
Gruba), applied for retirement/gratuity benefits under Republic
Act No. 910.[3]
In a Resolution dated September 24, 1996, this Court approved
the application filed by Mrs. Gruba. Per certification dated
October 25, 2012 by the Court of Tax Appeals’ Office of
Administrative and Finance Services, the five-year lump sum
retirement benefit under Republic Act No. 910 was remitted to
the Government Service Insurance System effective June 26,
1996. A total of P1,486,500.00, representing the five-year lump
sum gratuity due to Judge Gruba, was paid to his heirs.[4]
On January 13, 2010, Congress amended Republic Act No. 910
and passed Republic Act No. 9946. Republic Act No. 9946
provided for more benefits, including survivorship pension
benefits, among others. The law also provides a retroactivity
provision which states:
SEC. 3-B. The benefits under this Act shall be granted to all those
who have retired prior to the effectivity of this Act: Provided, That
the benefits shall be applicable only to the members of the
LAW O N P U B LI C O FFI C ER S
Judiciary: Provided, further, That the benefits to be granted shall be
prospective.
On January 11, 2012, Mrs. Gruba applied for survivorship
pension benefits under Republic Act No. 9946. [5] In a Resolution
dated January 17, 2012, this Court approved the application of
Mrs. Gruba. She received P1,026,748.00 for survivorship pension
benefits from January 1, 2011 to April
In a Resolution dated November 27, 2012, this Court revoked the
Resolution dated January 17, 2012 and directed the Court of Tax
Appeals to discontinue the payment of the survivorship pension
benefits to Mrs. Gruba. However, this Court stated that Mrs.
Gruba was not required to refund the survivorship pension
benefits received pursuant to the Resolution dated January 17,
2012.[7]
This Court required the Office of the Chief Attorney to report on
the matter. In a Comment dated May 14, 2013, the Office of the
Chief Attorney recommended that the heirs of Judge Gruba be
entitled to the 10-year lump sum death benefit under Section 2 of
Republic Act No. 910, as amended by Republic Act No. 9946.
This Resolution adopts in part the recommendation of the Office
of the Chief Attorney.
The issues for our resolution are the following: (1) whether
Republic Act No. 9946 applies to Judge Gruba; (2) whether the
heirs of Judge Gruba are entitled to the 10-year lump sum gratuity
benefits under Republic Act No. 9946; and (3) whether Mrs.
Gruba is entitled to survivorship pension benefits under the same
law.
We decide the first two issues in favor of the heirs of Judge Gruba.
However, we deny the application for survivorship pension
benefits of Mrs.
The rationale for retirement
Retirement laws are social legislation. In general, retirement laws
provide security to the elderly who have given their prime years in
employment whether in the private sector or in government.
These laws ensure the welfare of individuals who are approachin g
their twilight years and have limited opportunities for productive
employment that give them a steady income stream. In the private
sector, retirement packages are usually crafted as “forced savings”
on the part of the employee.
17 | P a g e
In government, lucrative retirement benefits are used as an
incentive mechanism to encourage competent individuals to have
careers in government. This Court often states:
[R]etirement benefits receivable by public employees are valuable
parts of the consideration for entrance into and continuation in
public office or employment. They serve a public purpose and a
2012. [6] primary objective in establishing them is to induce competent
persons to enter and remain in public employment and
render faithful and efficient service while so employed.[8]
(Emphasis supplied)
Due to this extraordinary purpose, the Constitution provides
guidelines on periodically increasing retirement benefits. [9] On
several occasions, this Court has liberally interpreted retirement
laws in keeping with its purpose. In Government Service Insurance
System v. De Leon:[10]
Retirement laws, in particular, are liberally construed in favor of
the retiree because their objective is to provide for the retiree’s
sustenance and, hopefully, even comfort, when he no longer has
the capability to earn a livelihood. The liberal approach aims to
achieve the humanitarian purposes of the law in order that
efficiency, security, and well-being of government employees may
be enhanced. Indeed, retirement laws are liberally construed and
administered in favor of the persons intended to be benefited, and
all doubts are resolved in favor of the retiree to achieve their
humanitarian purpose. [11]
This general principle for retirement benefits applies to members
of the Judiciary. However, Congress made a special law
specifically for retiring justices and judges. This law on
“retirement pensions of Justices arise from the package of
protections given by the Constitution to guarantee and preserve
the independence of the Judiciary.” [12] Aside from guaranteeing
Gruba. judicial independence, a separate retirement law for justices and
judges is designed to attract intelligent members of the Bar to join
benefits the Judiciary. It compensates for the opportunity cost of having
profitable private practices.
The rationale for death benefits
Aside from considering old age retirement benefits, the law also
protects the welfare of the heirs and surviving spouses of
employees who die before or after retirement. “The law extends
survivorship benefits to the surviving and qualified beneficiaries
of the deceased member or pensioner to cushion the beneficiaries
against the adverse economic effects resulting from the death of
LAW O N P U B LI C O FFI C ER S
the wage earner or pensioner.” [13]
The law usually takes into account the nature of the employment
and the vulnerability of the individual to risks that might lead to
an early demise. Therefore, military personnel, by virtue of
Republic Acts No. 3056, 5976, and 541, and justices and judges,
by virtue of Republic Act No. 910 as amended by Republic Act
No. 9946, are given generous death benefits. The law recognizes
the threats these kinds of government employees face because of
their positions. In order to minimize the adverse effects of
unexpected deaths while in service, the law extends benefits to the
deceased employee’s loved ones. It is also the law’s way of
sympathizing with the loss of these families. Death benefits
remind the heirs that despite their loss, their departed love one
had valuable contributions to society, and the State is grateful for
these contributions. These benefits also provide more incentive
for the independence of those who serve in the Judiciary. They
allow peace of mind since members of the Judiciary know that
they could provide for their spouse and their children even
beyond their death.
Retirement, disability retirement,
and death as modes of terminating
employment
Retirement benefits are usually conditioned on compliance with
certain requirements. Common requirements include age and
years in service. Upon reaching a certain age and compliance with
the years of service, an employee becomes entitled to benefits by
operation of law.
An exception to compliance with age and service requirements is
disability retirement. It is still considered a form of retirement, but
the condition for compliance is not usually age or years in service.
Disability retirement is conditioned on the incapacity of the
employee to continue his or her employment due to involuntary
causes such as illness or accident. The social justice principle
behind retirement benefits also applies to those who are forced to
cease from service due to disabilities beyond their control.
In line with the doctrine of liberal interpretation of retirement
laws, this Court has often construed death as disability retirement.
“[T]here is no more permanent or total physical disability than
death.”[14] The term “retirement,” when used in a strict legal sense,
refers to mandatory or optional retirement. However, when used
in a more general sense, “retire” may encompass the concepts of
both disability retirement and death. All of these concepts
involve events that happen to an employee beyond his or her
18 | P a g e
control. In case of mandatory or optional retirement,
reaching a certain age due to mere passage of time is beyond
the control of the individual. In the case of disability
retirement and death, acquiring an illness or accident is
beyond the control of the individual .
In Re: Resolution Granting Automatic Permanent Total Disability Benefits
to Heirs of Justices and Judges,[15] this Court rejected the Department
of Budget and Management’s insistence that “death while in actual
service” and “retirement due to permanent physical disability” are
distinct and separate circumstances. In this case, the Department
of Budget and Management refused to release additional gratuity
benefits to judges on account that they died while in actual service
without being able to apply for permanent physical disability
benefits. Since this case occurred prior to the issuance of Republic
Act No. 9946, there were gaps in the law. Gratuity payments due
to permanent physical disability were twice as much as gratuity
payments caused by death while in active service. This Court, in
order to maximize the benefits given to the heirs, treated death as
retirement due to permanent physical disability. Hence, we stated:
In Re: Retirement Benefits of the late City Judge Alejandro Galang, Jr., this
Court has had the occasion to construe Republic Act No. 910,
particularly the phrase “permanent physical disability” found in
Section 2 thereof. There, this Court considered death “while in
actual service” to be encompassed by the phrase “permanent
physical disability.” For, as aptly pointed out by then Associate
Justice Claudio Teehankee in his concurring opinion in that case,
“there is no more permanent or total physical disability than death.”
When the law has gaps which tend to get in the way of achievin g
its purpose, thus resulting in injustice, this Court is allowed to fill
the open spaces therein. [16]
Retiring due to physical disabilities is not far removed from the
situation involving death of a judge or justice. This explains why
retirement laws necessarily include death benefits. The gaps in the
old law prompted Congress to improve death benefits given to
the heirs of deceased judges and justices.
Republic Act No. 9946 applies
retroactively to those who died or
were killed while they were in
government service
Republic Act No. 910 was enacted in 1954 to provide for
retirement benefits of justices of the Supreme Court and the
Court of Appeals. Through various amendments, the coverage of
LAW O N P U B LI C O FFI C ER S
Republic Act No. 910 now includes justices of the Sandiganbayan
and the Court of Tax Appeals, as well as judges of the Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court,
Municipal Circuit Trial Court, Shari’a District Court, Shari’a
Circuit Court, and any other court hereafter established. [17]
Republic Act No. 910 provides for two basic benefits: retirement
and death benefits.
The retirement benefits under Republic Act No. 910 may be
availed in two ways. One way is through compulsory retirement
of a judge or justice by attaining the age of 70 years old and
complying with the service requirement of 20 years in the Judiciary
or any other government branch. The other way is through
optional retirement of a judge or justice by attaining the age of 57
years old and complying with the service requirement of 20 years
in government, the last 10 of which must be continuously
rendered in the Judiciary. [18]
The optional retirement requirements were modified in Republic
Act No. 5095. To qualify for optional retirement under that law,
a judge or justice must serve at least 20 years in government, and
the last five (5) years of service must be continuously rendered in
the Judiciary.[19]
The death benefits under Republic Act No. 910 entitle the heirs
of a deceased justice or judge to a five-year lump sum of the salary
the justice or judge was receiving during the period of death. The
five-year lump sum is conditioned on the compliance with the
service requirement of 20 years. Noncompliance with the
service requirement entitles the heirs only to a two-year lump
sum.
In 2010, Congress enacted Republic Act No. 9946, otherwise
known as An Act Granting Additional Retirement, Survivorship, and
Other Benefits to Members of the Judiciary, Amending for the Purpose
Republic Act No. 910. Republic Act No. 9946 introduced major
innovations for retirement of the members of the Judiciary. The
first change made was the inclusion of additional allowances in
the computation for monthly pensions and gratuity payments. [20]
Second, the service requirement for compulsory and optional
retirement was modified. Under Republic Act No. 9946, only 15
years in the Judiciary and any other branch of government are
required. For optional retirement, the last three (3) years must be
rendered continuously in the Judiciary. [21] The third major
innovation of the law is that non-compliance with the service
requirement will entitle the retiree to a monthly pension pro-rated
to the number of years rendered in government. [22] The fourth
19 | P a g e
major innovation is the benefits given to justices or judges who
contracted permanent disability or partial permanent disability
during incumbency. [23]
The last two innovations of Republic Act No. 9946 are more
relevant to this case at bar. The fifth major innovation of Republic
Act No. 9946 is the expansion of death benefits given to the heirs
of a deceased justice or judge. [24] Finally, the law specifies that
pension benefits given under this law will be received by the
surviving spouse of the retired justice or judge upon the justice’s
or judge’s demise.[25] This last innovation is the most important
and the reason why the law was amended in the first place.
Republic Act No. 9946 provides for a retroactivity clause in
Section 4, adding Section 3-B to Republic Act No. 910:
SEC. 3-B. The benefits under this Act shall be granted to all those
who have retired prior to the effectivity of this Act: Provided, That
the benefits shall be applicable only to the members of the
Judiciary: ` That the benefits to be granted shall be prospective.
(Emphasis supplied)
An initial look at the law might suggest that the retroactivity of
Republic Act No. 9946 is limited to those who retired prior to the
effectivity of the law.[26] However, a holistic treatment of the law
will show that the set of amendments provided by Republic Act
No. 9946 is not limited to justices or judges who retired after
reaching a certain age and a certain number of years in service.
The changes in the law also refer to justices or judges who
“retired” due to permanent disability or partial permanent
disability as well as justices or judges who died while in active
service.
In light of these innovations provided in the law, the word
“retired” in Section 3-B should be construed to include not only
those who already retired under Republic Act No. 910 but also
those who retired due to permanent disability. It also includes
judges and justices who died or were killed while in service.
Providing retroactivity to judges and justices who died while in
service conforms with the doctrine that retirement laws should be
liberally construed and administered in favor of persons intended
to be benefited.[27] “[T]he liberal approach aims to achieve the
humanitarian purposes of the law in order that the efficien cy,
security, and well-being of government employees may be
enhanced.”[28] Ensuring the welfare of families dependent on
government employees is achieved in the changes made in
Republic Act No. 9946. It will be consistent with the humanitarian
LAW O N P U B LI C O FFI C ER S
purposes of the law if the law is made retroactive to benefit the
heirs of judges and justices who passed away prior to the
effectivity of Republic Act No. 9946.
Judge Gruba who passed away prior to the effectivity of Republic
Act No. 9946 is still covered by the law by virtue of Section 3-B.
“Retired” here is not construed in the strict dictionary
definition but in its more rational sense of discontinuance of
service due to causes beyond one’s control. It should include
the cessation of work due to natural causes such as death.
Therefore, the death of Judge Gruba produces effects under
Republic Act No. 9946 for his family.
In the past, this Court has liberally granted benefits to surviving
heirs of deceased members of the Judiciary despite incomplete
compliance with the requisites of Republic Act No. 910. [29] Since
there was a gap in the law, this Court’s Resolution d ated
September 30, 2003 in Re: Resolution Granting Permanent Total
Disability Benefits to Heirs of Justices and Judges Who Die In Actual Service
provided for benefits of judges and justices who died in actual
service but were not able to comply with the age and service
requirements stated in Republic Act No. 910. [30] This Resolution
was incorporated in Republic Act No. 9946.
This Court also applied the survivorship pension benefits to
surviving spouses of justices and judges who died prior to the
enactment of Republic Act No. 9946 in 2010. For example, Chief
Justice Enrique M. Fernando passed away in 2004, but his widow,
Mrs. Emma Q. Fernando, was given survivorship pension
benefits[31] despite the fact that Chief Justice Fernando’s death
occurred prior to the enactment of Republic Act No. 9946.
Congress has been liberal in according retirement and death
benefits to justices and judges. These benefits are incentives for
talented individuals to join the Judiciary. For current members,
these benefits assure them that the government will continue to
ensure their welfare even in their twilight years. These benefits
allow the best and the brightest lawyers to remain in the Judiciary
despite its risks because they know that their family’s welfare will
be addressed even in their passing.
The first proviso of Section 3-B (“Provided, That the benefits shall
be applicable only to the members of the Judiciary”) should be
interpreted to mean individuals who were members of the
Judiciary immediately prior to retirement, disability retirement or
death. This proviso is meant to exclude individuals who were
former members of the Judiciary but accepted positions in other
branches of government. In other words, former judges or justices
20 | P a g e
who retire from non-judicial positions are excluded.[32] If this
proviso is interpreted to exclude benefits provided by the law to
heirs and surviving members, it will be contrary to the purpose of
the law.
Representative Fredenil H. Castro, one of the sponsors of House
Bill No. 1238, the precursor of Republic Act No. 9946, “explained
that the bill was aimed to assure justices and judges ‘that their
surviving spouse[s] are given adequate and substantial benefits
through survivorship pension.’” [33] In addition, it will also be
contrary to jurisprudence stating “retirement laws should be
liberally construed and administered in favor of the persons
intended to be benefited and all doubts as to the intent of the law
should be resolved in favor of the retiree to achieve its
humanitarian purposes.” [34] Note that this Court referred to
“persons intended to be benefited” and not merely “retirees.”
There is recognition that the retired or deceased judge is not the
only beneficiary of retirement and death benefit laws but also his
or her family.
The last proviso of Section 3-B (“Provided, further, That the benefits
to be granted shall be prospective) might likewise cause some
confusion. To clarify, when the law states “benefits to be granted
shall be prospective,” it refers to pensions given to justices or
judges or survivorship pension benefits given to the surviving
spouses. It means that those who have been continuously
receiving pension benefits before Republic Act No. 9946 may not
demand the differential of the previously paid pension benefits.
This “prospectivity” provision does not apply to lump sum
payments or one-time gratuity benefits given by reasons of death.
The heirs of Judge Gruba are
entitled to death gratuity benefits
under Republic Act No. 9946,
Section 2
Under Republic Act No. 9946, Section 2 provides for death
benefits under varying circumstances:
SEC. 2. In case a Justice of the x x x Court of Tax Appeals, x x x
dies while in actual service, regardless of his/her age and length
of service as required in Section 1 hereof, his/her heirs shall
receive a lump sum of five (5) years’ gratuity computed on the
basis of the highest monthly salary plus the highest monthly
aggregate of transportation, representation and other allowances
such as personal economic relief allowance (PERA) and additional
compensation allowance received by him/her as such Justice or
Judge: Provided, however, That where the deceased Justice or
LAW O N P U B LI C O FFI C ER S
Judge has rendered at least fifteen (15) years either in the transportation, representation, and other allowances such as
Judiciary or any other branch of Government, or both, personal economic relief allowance (PERA) and additional
his/her heirs shall instead be entitled to a lump sum of ten compensation allowance.
(10) years gratuity computed on the same basis as indicated
in this provision: Provided, further, That the lump sum of ten (10) The fact that the heirs of Judge Gruba received death
years gratuity shall be received by the heirs of the Justice or the benefits under Republic Act No. 910 prior to amendments in
Judge who was killed because of his/her work as such: Provided, Republic Act No. 9946 does not preclude the heirs from
That the Justice or Judge has served in Government for at least receiving the 10-year lump sum in full. This is the effect of
five (5) years regardless of age at the time of death. When a Justice the retroactivity mentioned in Section 3-B of Republic Act
or Judge is killed intentionally while in service, the presumption is No. 9946. This is also in keeping with a policy declaration
that the death is work-related. (Emphasis supplied) under Article XVI, Section 8 of the Constitution stating that
“[the] State shall, from time to time, review to upgrade the
This provision provides death benefits to justices or judges who pensions and other benefits due to retirees of both the
died while in service as well as those who suffered work-related government and the private sectors.”
deaths. The presumption is that if a justice or judge was killed
intentionally, the death is considered work-related . However, Mrs. Gruba is not
qualified for survivorship pension
The provision contemplates three scenarios. First, if a justice or benefits under Section 3 of Republic
judge dies while in service, regardless of his or her age and length Act No. 9946
of service, his or her heirs are entitled to a five (5)-year lump
sum of gratuity. Second, if a justice or judge dies of natural causes When Mrs. Gruba applied for benefits under Republic Act No.
while in service, regardless of his or her age, but has rendered at 9946, she was not claiming additional gratuity benefits. She was
least 15 years in government service, his or her heirs are entitled invoking the second paragraph of Section 3 of Republic Act No.
to a 10-year lump sum of gratuity. Finally, if a justice or judge is 910 as amended by Republic Act No. 9946, thus:
killed intentionally and the death is considered work-related ,
regardless of his or her age, but has rendered at least five (5) years Upon the death of a Justice or Judge of any court in the Judiciary,
in government service, his or her heirs are entitled to a 10-year if such Justice or Judge has retired, or was eligible to retire
lump sum of gratuity. optionally at the time of death, the surviving legitimate spouse shall
be entitled to receive all the retirement benefits that the deceased
In all these scenarios, the law dispenses with the requirement of Justice or Judge would have received had the Justice or Judge not
the judge’s or justice’s retirement for the surviving heirs to receive died. The surviving spouse shall continue to receive such
benefits upon the judge’s or justice’s demise. This is an retirement benefits until the surviving spouse’s death or
improvement from the benefits given under Republic Act No. remarriage.
910. The law became more attuned to the reality that death can
occur anytime during the tenure of a judge or justice. It recognized According to Section 3 of Republic Act No. 9946, survivorship
the risks judges and justices face in dispensing their duties and pension benefits are given to surviving spouses of retired judges
responsibilities, risks similar to those experienced by members of or justices or surviving spouses of judges or justices who are
law enforcement or the military. The law provides for eligible to retire optionally. This means that for the spouse to
contingencies for judges and justices who unexpectedly left their qualify for survivorship pension, the deceased judge or justice
loved ones who depended on them for support and sustenance. must (1) be at least 60 years old, (2) have rendered at least fifteen
years in the Judiciary or in any other branch of government, and
Judge Gruba’s death follows the second scenario under Section 2 in the case of eligibility for optional retirement, (3) have served
of Republic Act No. 9946. He died due to natural causes while the last three years continuously in the Judiciary.
serving the Judiciary. He rendered 16 years, six (6) months, and
21 days in government service, thereby complying with the 15- When the judge or justice is neither retired nor eligible to retire,
year service requirement under the law. His heirs became entitled his or her surviving spouse is not entitled to those benefits. This
to a lump sum of 10 years gratuity computed on the basis of the was the reason behind our Resolution dated November 27, 2012,
highest monthly salary, plus the highest monthly aggregate of wherein we revoked the approval of Mrs. Gruba’s application for
21 | P a g e LAW O N P U B LI C O FFI C ER S
survivorship pension benefits. The Resolution discontinued the
payment of Mrs. Gruba’s survivorship pension benefits. We no
longer required Mrs. Gruba to reimburse survivorship pension
benefits received by virtue of the earlier Resolution dated January
17, 2012 considering that she received those payments in good
faith.
Mrs. Gruba could have been entitled to survivorship pension
benefits if her late husband were eligible to optionally retire at the
time of his death. However, we are faced with a situation where
the justice complied only with two of three requirements for
optional retirement. He served government for a total of 16 years,
six (6) months, and 21 days. In those years, he rendered service
for three (3) years, nine (9) months, and eight (8) days in the
Judiciary.
Judge Gruba neither retired compulsorily prior to his death nor
was he eligible for optional retirement at the time of his death. He
would have qualified for the government service requirements.
However, his age at the time of his death did not make him
qualified for optional retirement. He was only 55 years old, and
the law required the age of 60 for eligibility for optional
retirement.
It was unfortunate that Judge Gruba died five years short of the
optional retirement age. However, survivorship benefits are an
offshoot of retirement benefits. Administrative Circular 81-2010
qualified that “[t]he legitimate surviving spouse of a Justice or
Judge who (1) has retired or was eligible to retire optionally at the
time of death; and (2) was receiving or would have been entitled
to receive a monthly pension” is the individual qualified to receive
survivorship benefits. This suggests that survivorship pension
benefits are extensions of retirement benefits given to judges and
justices, and retirement benefits in government service are
governed by law.[35] Noncompliance with the clear text of the law
means that the benefit cannot be granted.
We note, however, that if Judge Gruba were eligible to optionally
retire under Republic Act No. 9946 at the time of his death and
despite the fact that he passed away prior to the amendatory law’s
passage, his widow would have been entitled to the survivorship
pension. The law was passed on January 13, 2010, and any
surviving spouse of a judge or justice who died prior to this date
but was retired or eligible to retire optionally should be covered
by Republic Act No. 9946 by virtue of its retroactivity clause.
Republic Act No. 9946 has recognized the risks and contingencies
of being involved in public service in the Judiciary. Death gratuity
22 | P a g e
benefits have been improved to take into account the various
circumstances that might surround a judge’s or justice’s death.
However, the application of the law is not without limits. The law
accommodates the heirs of Judge Gruba by entitling them to
receive the improved gratuity benefits under Republic Act No.
9946, but it is clear that Mrs. Gruba is not entitled to the
survivorship pension benefits.
Despite the fact that Mrs. Gruba is not entitled to receive
survivorship pension, she no longer needs to return the
survivorship pension benefits she received from January 2011 to
April 2012 amounting to ?1,026,748.00. This Court, in the past,
have decided pro hac vice that a surviving spouse who received
survivorship pension benefits in good faith no longer needs to
refund such pensions. In Re: Application for Survivorship Pension
Benefits of Hon. Juanito C. Ranjo, Former Deputy Court Administrator
(DCA),[36] we initially resolved to award survivorship pension
benefits to DCA Ranjo’s surviving spouse, Mrs. Ranjo. In a latter
Resolution, we ruled that DCA Ranjo was not entitled to receive
benefits under Republic Act No. 9946; hence, it was erroneous to
award survivorship pension benefits to his widow. However, this
Court ruled that the application of the resolution revoking
survivorship pension benefits “appl[ies] prospectively, not
retroactively and adversely to [Mrs. Ranjo].” [37] This Court found
that Mrs. Ranjo accepted this amount in good faith, and the same
could be said about Mrs. Gruba.
This Court has made similar pronouncements on other benefits
erroneously received by government employees. This Court
agreed that employees who have erroneously received rice
allowances,[38] productivity incentive bonuses, [39] representatio n
and transportation allowances (RATA), [40] anniversary bonuses, [41]
year-end bonuses,[42] and cash gifts[43] no longer need to refund
the same. The reasoning was that:
Considering, however, that all the parties here acted in good faith,
we cannot countenance the refund of x x x benefits x x x, which
amounts the petitioners have already received. Indeed, no indicia
of bad faith can be detected under the attendant facts and
circumstances. The officials and chiefs of offices concern ed
disbursed such incentive benefits in the honest belief that the
amounts given were due to the recipients and the latter accep ted
the same with gratitude, confident that they richly deserve such
benefits.[44]
Analogously, when Mrs. Gruba received the survivorship pension
benefits, she accepted them in good faith, knowing that this Court
positively pronounced that she was entitled to them in the
LAW O N P U B LI C O FFI C ER S
Resolution dated January 17, 2012. When we revoked this WHEREFORE, the petition is DENIED. The September 28,
2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No.
Resolution, such revocation should only apply prospectively in the
74944 and the September 13, 2002 Decision of the RTC in Civil
interest of equity and fairness. [45] Case No. 1851-99 are AFFIRMED but with MODIFICATIONS
in view of subsequent developments or supervening events in the
IN VIEW OF THE FOREGOING, WE RESOLVE TO case. The fallo of the RTC Decision shall now read:
GRANT a lump sum of 10 years gratuity benefits under Sectio n
WHEREFORE, judgment is hereby rendered ordering the
2 of Republic Act No. 9946 to the heirs of Judge Gruba, subject abovenamed defendant-government agencies to clean up,
to the availability of funds, and DENY the prayer of Mrs. Gruba rehabilitate, and preserve Manila Bay, and restore and maintain its
to receive survivorship pension benefits. waters to SB level (Class B sea waters per Water Classificatio n
Tables under DENR Administrative Order No. 34 [1990]) to
make them fit for swimming, skin-diving, and other forms of
SO ORDERED. contact recreatio n .

In particular:

(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the

primary agency responsible for the conservation, management,
development, and proper use of the country's environment and
natural resources, and Sec. 19 of RA 9275, designating the DENR
as the primary government agency responsible for its enforcemen t
and implementation, the DENR is directed to fully implement its
Operational Plan for the Manila Bay Coastal Strategy for the
rehabilitation, restoration, and conservation of the Manila Bay at
the earliest possible time. It is ordered to call regular coordination
meetings with concerned government departments and agencies
to ensure the successful implementation of the aforesaid plan of
action in accordance with its indicated completion schedules.

G.R. Nos. 171947-48, February 15, 2011 (2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
METROPOLITAN MANILA DEVELOPMENT Government Code of 1991, the DILG, in exercising the
AUTHORITY, DEPARTMENT OF ENVIRONMENT President's power of general supervision and its duty to
AND NATURAL RESOURCES, DEPARTMENT OF promulgate guidelines in establishing waste management
EDUCATION, CULTURE AND SPORTS,[1] programs under Sec. 43 of the Philippine Environment Code (PD
DEPARTMENT OF HEALTH, DEPARTMENT OF 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna,
AGRICULTURE, DEPARTMENT OF PUBLIC WORKS Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
AND HIGHWAYS, DEPARTMENT OF BUDGET AND commercial establishments, and private homes along the banks of
MANAGEMENT, PHILIPPINE COAST GUARD, the major river systems in their respective areas of jurisdiction,
PHILIPPINE NATIONAL POLICE MARITIME such as but not limited to the Pasig-Marikina-San Juan Rivers, the
GROUP, AND DEPARTMENT OF THE INTERIOR NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
AND LOCAL GOVERNMENT, PETITIONERS, VS. Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao -
CONCERNED RESIDENTS OF MANILA BAY, Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus
REPRESENTED AND JOINED BY DIVINA V. ILAS, (Cavite) River, the Laguna De Bay, and other minor rivers and
SABINIANO ALBARRACIN, MANUEL SANTOS, JR., waterways that eventually discharge water into the Manila Bay;
DINAH DELA PEÑA, PAUL DENNIS QUINTERO, MA. and the lands abutting the bay, to determine whether they have
VICTORIA LLENOS, DONNA CALOZA, FATIMA wastewater treatment facilities or hygienic septic tanks as
QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, prescribed by existing laws, ordinances, and rules and regulations.
SARAH JOELLE LINTAG, HANNIBAL AUGUSTUS If none be found, these LGUs shall be ordered to require non-
BOBIS, FELIMON SANTIAGUEL, AND JAIME complying establishments and homes to set up said facilities or
AGUSTIN R. OPOSA, RESPONDENTS . septic tanks within a reasonable time to prevent industrial wastes,
sewage water, and human wastes from flowing into these rivers,
R E S O L U T I O N VELASCO JR., J.: waterways, esteros, and the Manila Bay, under pain of closure or
imposition of fines and other sanctions.
On December 18, 2008, this Court rendered a Decision in G.R.
Nos. 171947-48 ordering petitioners to clean up, rehabilitate and (3) As mandated by Sec. 8 of RA 9275, the MWSS is directed to
preserve Manila Bay in their different capacities. The fallo reads: provide, install, operate, and maintain the necessary adequate
waste water treatment facilities in Metro Manila, Rizal, and Cavite

23 | P a g e LAW O N P U B LI C O FFI C ER S
where needed at the earliest possible time.
(4) Pursuant to RA 9275, the LWUA, through the local water
districts and in coordination with the DENR, is ordered to
provide, install, operate, and maintain sewerage and sanitation
facilities and the efficient and safe collection, treatment, and
disposal of sewage in the provinces of Laguna, Cavite, Bulacan ,
Pampanga, and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550, the DA, through the BFAR,
is ordered to improve and restore the marine life of the Manila
Bay. It is also directed to assist the LGUs in Metro Manila, Rizal,
Cavite, Laguna, Bulacan, Pampanga, and Bataan in developing,
using recognized methods, the fisheries and aquatic resources in
the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP
Maritime Group, in accordance with Sec. 124 of RA 8550, in
coordination with each other, shall apprehend violators of PD
979, RA 8550, and other existing laws and regulations designed to
prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513 and the International
Convention for the Prevention of Pollution from Ships, the PPA
is ordered to immediately adopt such measures to prevent the
discharge and dumping of solid and liquid wastes and other ship-
generated wastes into the Manila Bay waters from vessels docked
at ports and apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs
and projects for flood control projects and drainage services in
Metro Manila, in coordination with the DPWH, DILG, affected
LGUs, PNP Maritime Group, Housing and Urban Development
Coordinating Council (HUDCC), and other agencies, shall
dismantle and remove all structures, constructions, and other
encroachments established or built in violation of RA 7279, and
other applicable laws along the Pasig-Marikina-San Juan Rivers,
the NCR (Parañaque-Zapote, Las Piñas) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways
and esteros in Metro Manila. The DPWH, as the principal
implementor of programs and projects for flood control services
in the rest of the country more particularly in Bulacan, Bataan,
Pampanga, Cavite, and Laguna, in coordination with the DILG,
affected LGUs, PNP Maritime Group, HUDCC, and other
concerned government agencies, shall remove and demolish all
structures, constructions, and other encroachments built in
breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and
other rivers, connecting waterways, and esteros that discharge
wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and
maintain a sanitary landfill, as prescribed by RA 9003, within a
period of one (1) year from finality of this Decision. On matters
within its territorial jurisdiction and in connection with the
discharge of its duties on the maintenance of sanitary landfills and
like undertakings, it is also ordered to cause the apprehension and
filing of the appropriate criminal cases against violators of the
24 | P a g e
respective penal provisions of RA 9003, Sec. 27 of RA 9275 (the
Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8
of RA 9275, within one (1) year from finality of this Decision ,
determine if all licensed septic and sludge companies have the
proper facilities for the treatment and disposal of fecal sludge and
sewage coming from septic tanks. The DOH shall give the
companies, if found to be non-complying, a reasonable time
within which to set up the necessary facilities under pain of
cancellation of its environmental sanitation clearan ce.
(10) Pursuant to Sec. 53 of PD 1152, Sec. 118 of RA 8550, and
Sec. 56 of RA 9003, the DepEd shall integrate lessons on
pollution prevention, waste management, environmental
protection, and like subjects in the school curricula of all levels to
inculcate in the minds and hearts of students and, through them,
their parents and friends, the importance of their duty toward
achieving and maintaining a balanced and healthful ecosystem in
the Manila Bay and the entire Philippine archipelago .
(11) The DBM shall consider incorporating an adequate budget in
the General Appropriations Act of 2010 and succeeding years to
cover the expenses relating to the cleanup, restoration, and
preservation of the water quality of the Manila Bay, in line with
the country's development objective to attain economic growth in
a manner consistent with the protection, preservation, and revival
of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd,
DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG,
and also of MWSS, LWUA, and PPA, in line with the principle of
"continuing mandamus," shall, from finality of this Decision, each
submit to the Court a quarterly progressive report of the activities
undertaken in accordance with this Decision .
SO ORDERED.
The government agencies did not file any motion for
reconsideration and the Decision became final in January 2009.
The case is now in the execution phase of the final and executo ry
December 18, 2008 Decision. The Manila Bay Advisory
Committee was created to receive and evaluate the quarterly
progressive reports on the activities undertaken by the agencies in
accordance with said decision and to monitor the execution phase.
In the absence of specific completion periods, the Committee
recommended that time frames be set for the agencies to perform
their assigned tasks. This may be viewed as an encroachment over
the powers and functions of the Executive Branch headed by the
President of the Philippines.
This view is misplaced.
The issuance of subsequent resolutions by the Court is simply an
exercise of judicial power under Art. VIII of the Constitution,
because the execution of the Decision is but an integral part of
the adjudicative function of the Court. None of the agencies ever
LAW O N P U B LI C O FFI C ER S
questioned the power of the Court to implement the Decemb er
18, 2008 Decision nor has any of them raised the alleged
encroachment by the Court over executive functions.
While additional activities are required of the agencies like
submission of plans of action, data or status reports, these
directives are but part and parcel of the execution stage of a final
decision under Rule 39 of the Rules of Court. Section 47 of Rule
39 reads:
Section 47. Effect of judgments or final orders.--The effect of a
judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may
be as follows:
xx xx
(c) In any other litigation between the same parties of their
successors in interest, that only is deemed to have been adjudged
in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily
included therein or necessary thereto. (Emphasis supplied.)
It is clear that the final judgment includes not only what appears
upon its face to have been so adjudged but also those matters
"actually and necessarily included therein or necessary
thereto." Certainly, any activity that is needed to fully implement
a final judgment is necessarily encompassed by said judgment.
Moreover, the submission of periodic reports is sanctioned by
Secs. 7 and 8, Rule 8 of the Rules of Procedure for Environmental
cases:
Sec. 7. Judgment.--If warranted, the court shall grant the privilege
of the writ of continuing mandamus requiring respondent to
perform an act or series of acts until the judgment is fully satisfied
and to grant such other reliefs as may be warranted resulting from
the wrongful or illegal acts of the respondent. The court shall
require the respondent to submit periodic reports detailing the
progress and execution of the judgment, and the court may, by
itself or through a commissioner or the appropriate government
agency, evaluate and monitor compliance. The petitioner may
submit its comments or observations on the execution of the
judgment.
Sec. 8. Return of the writ.--The periodic reports submitted by the
respondent detailing compliance with the judgment shall be
contained in partial returns of the writ. Upon full satisfaction of
the judgment, a final return of the writ shall be made to the court
by the respondent. If the court finds that the judgment has been
fully implemented, the satisfaction of judgment shall be entered
in the court docket. (Emphasis supplied.)
With the final and executory judgment in MMDA, the writ of
continuing mandamus issued in MMDA means that until
petitioner-agencies have shown full compliance with the Court's
orders, the Court exercises continuing jurisdiction over them until
full execution of the judgment.
25 | P a g e
There being no encroachment over executive functions to speak
of, We shall now proceed to the recommendation of the Manila
Bay Advisory Committee.
Several problems were encountered by the Manila Bay Advisory
Committee.[2] An evaluation of the quarterly progressive reports
has shown that (1) there are voluminous quarterly progressive
reports that are being submitted; (2) petitioner-agencies do not
have a uniform manner of reporting their cleanup, rehabilitation
and preservation activities; (3) as yet no definite deadlines have
been set by petitioner DENR as to petitioner-agencies' timeframe
for their respective duties; (4) as of June 2010 there has been a
change in leadership in both the national and local levels; and (5)
some agencies have encountered difficulties in complying with the
Court's directives.
In order to implement the afore-quoted Decision, certain
directives have to be issued by the Court to address the said
concerns.
Acting on the recommendation of the Manila Bay Advisory
Committee, the Court hereby resolves to ORDER the following:
(1) The Department of Environment and Natural Resources
(DENR), as lead agency in the Philippine Clean Water Act of 2004,
shall submit to the Court on or before June 30, 2011 the updated
Operational Plan for the Manila Bay Coastal Strategy.
The DENR is ordered to submit summarized data on the overall
quality of Manila Bay waters for all four quarters of 2010 on or
before June 30, 2011.
The DENR is further ordered to submit the names and addresses of
persons and companies in Metro Manila, Rizal, Laguna, Cavite, Bulacan,
Pampanga and Bataan that generate toxic and hazardous waste on or
before September 30, 2011.
(2) On or before June 30, 2011, the Department of the Interior and Local
Government (DILG) shall order the Mayors of all cities in Metro Manila;
the Governors of Rizal, Laguna, Cavite, Bulacan, Pampanga and Bataan;
and the Mayors of all the cities and towns in said provinces to inspect all
factories, commercial establishments and private homes along the banks
of the major river systems--such as but not limited to the Pasig-Marikina-
San Juan Rivers, the National Capital Region (Paranaque-Zapote, Las
Pinas) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan)
River, the Imus (Cavite) River, and the Laguna De Bay--and other minor
rivers and waterways within their jurisdiction that eventually discharge
water into the Manila Bay and the lands abutting it, to determine if they
have wastewater treatment facilities and/or hygienic septic tanks, as
prescribed by existing laws, ordinances, rules and regulations. Said local
government unit (LGU) officials are given up to September 30, 2011 to
finish the inspection of said establishments and houses.
In case of non-compliance, the LGU officials shall take
appropriate action to ensure compliance by non-complying
factories, commercial establishments and private homes with said
law, rules and regulations requiring the construction or installment
of wastewater treatment facilities or hygienic septic tanks.
The aforementioned governors and mayors shall submit to the
LAW O N P U B LI C O FFI C ER S
DILG on or before December 31, 2011 their respective
compliance reports which will contain the names and addresses
or offices of the owners of all the non-complying factories,
commercial establishments and private homes, copy furnished the
concerned environmental agency, be it the local DENR office or
the Laguna Lake Development Authority.
The DILG is required to submit a five-year plan of action that will
contain measures intended to ensure compliance of all non-
complying factories, commercial establishments, and private
homes.
On or before June 30, 2011, the DILG and the mayors of all cities
in Metro Manila shall consider providing land for the wastewater
facilities of the Metropolitan Waterworks and Sewerage System
(MWSS) or its concessionaires (Maynilad and Manila Water, Inc.)
within their respective jurisdictions.
(3) The MWSS shall submit to the Court on or before June 30,
2011 the list of areas in Metro Manila, Rizal and Cavite that do
not have the necessary wastewater treatment facilities. Within the
same period, the concessionaires of the MWSS shall submit their
plans and projects for the construction of wastewater treatment
facilities in all the aforesaid areas and the completion period for
said facilities, which shall not go beyond 2037.
On or before June 30, 2011, the MWSS is further required to have
its two concessionaires submit a report on the amount collected
as sewerage fees in their respective areas of operation as of
December 31, 2010.
(4) The Local Water Utilities Administration is ordered to submit
on or before September 30, 2011 its plan to provide, install,
operate and maintain sewerage and sanitation facilities in said
cities and towns and the completion period for said works, which
shall be fully implemented by December 31, 2020.
(5) The Department of Agriculture (DA), through the Bureau of
Fisheries and Aquatic Resources, shall submit to the Court on or
before June 30, 2011 a report on areas in Manila Bay where marine
life has to be restored or improved and the assistance it has
extended to the LGUs in Metro Manila, Rizal, Cavite, Laguna,
Bulacan, Pampanga and Bataan in developing the fisheries and
aquatic resources in Manila Bay. The report shall contain
monitoring data on the marine life in said areas. Within the same
period, it shall submit its five-year plan to restore and improve the
marine life in Manila Bay, its future activities to assist the
aforementioned LGUs for that purpose, and the completion
period for said undertakings.
The DA shall submit to the Court on or before September 30,
2011 the baseline data as of September 30, 2010 on the pollution
loading into the Manila Bay system from agricultural and livestock
sources.
(6) The Philippine Ports Authority (PPA) shall incorporate in its
quarterly reports the list of violators it has apprehended and the
status of their cases. The PPA is further ordered to include in its
report the names, make and capacity of the ships that dock in PPA
ports. The PPA shall submit to the Court on or before June 30,
26 | P a g e
2011 the measures it intends to undertake to implement its
compliance with paragraph 7 of the dispositive portion of the
MMDA Decision and the completion dates of such measures.
The PPA should include in its report the activities of its
concessionaire that collects and disposes of the solid and liquid
wastes and other ship-generated wastes, which shall state the
names, make and capacity of the ships serviced by it since August
2003 up to the present date, the dates the ships docked at PPA
ports, the number of days the ship was at sea with the
corresponding number of passengers and crew per trip, the
volume of solid, liquid and other wastes collected from said ships,
the treatment undertaken and the disposal site for said wastes.
(7) The Philippine National Police (PNP) Maritime Group shall
submit on or before June 30, 2011 its five-year plan of action on
the measures and activities it intends to undertake to apprehend
the violators of Republic Act No. (RA) 8550 or the Philippine
Fisheries Code of 1998 and other pertinent laws, ordinances and
regulations to prevent marine pollution in Manila Bay and to
ensure the successful prosecution of violators.
The Philippine Coast Guard shall likewise submit on or before
June 30, 2011 its five-year plan of action on the measures and
activities they intend to undertake to apprehend the violators of
Presidential Decree No. 979 or the Marine Pollution Decree of 1976
and RA 9993 or the Philippine Coast Guard Law of 2009 and other
pertinent laws and regulations to prevent marine pollution in
Manila Bay and to ensure the successful prosecution of violators.
(8) The Metropolitan Manila Development Authority (MMDA)
shall submit to the Court on or before June 30, 2011 the names
and addresses of the informal settlers in Metro Manila who, as of
December 31, 2010, own and occupy houses, structures,
constructions and other encroachments established or built along
the Pasig-Marikina-San Juan Rivers, the NCR (Parañaque-Zapote,
Las Piñas) Rivers, the Navotas-Malabon-Tullahan-Tenejero s
Rivers, and connecting waterways and esteros, in violation of RA
7279 and other applicable laws. On or before June 30, 2011, the
MMDA shall submit its plan for the removal of said informal
settlers and the demolition of the aforesaid houses, structures,
constructions and encroachments, as well as the completion dates
for said activities, which shall be fully implemented not later than
December 31, 2015.
The MMDA is ordered to submit a status report, within thirty (30)
days from receipt of this Resolution, on the establishment of a
sanitary landfill facility for Metro Manila in compliance with the
standards under RA 9003 or the Ecological Solid Waste Management
Act.
On or before June 30, 2011, the MMDA shall submit a report of
the location of open and controlled dumps in Metro Manila whose
operations are illegal after February 21, 2006, [3] pursuant to Secs.
36 and 37 of RA 9003, and its plan for the closure of these open
and controlled dumps to be accomplished not later than
December 31, 2012. Also, on or before June 30, 2011, the DENR
Secretary, as Chairperson of the National Solid Waste
Management Commission (NSWMC), shall submit a report on
LAW O N P U B LI C O FFI C ER S
the location of all open and controlled dumps in Rizal, Cavite,
Laguna, Bulacan, Pampanga and Bataan.
On or before June 30, 2011, the DENR Secretary, in his capacity
as NSWMC Chairperson, shall submit a report on whether or not
the following landfills strictly comply with Secs. 41 and 42 of RA
9003 on the establishment and operation of sanitary landfills, to
wit:
National Capital Region
1. Navotas SLF (PhilEco), Brgy. Tanza (New Site), Navotas City
2. Payatas Controlled Dumpsite, Barangay Payatas, Quezon City
Region III
3. Sitio Coral, Brgy. Matictic, Norzagaray, Bulacan
4. Sitio Tiakad, Brgy. San Mateo, Norzagaray, Bulacan
5. Brgy. Minuyan, San Jose del Monte City, Bulacan
6. Brgy. Mapalad, Santa Rosa, Nueva Ecija
7. Sub-zone Kalangitan, Clark Capas, Tarlac Special Economic Zone
Region IV-A
8. Kalayaan (Longos), Laguna
9. Brgy. Sto. Nino, San Pablo City, Laguna
10. Brgy. San Antonio (Pilotage SLF), San Pedro, Laguna
11. Morong, Rizal
12. Sitio Lukutan, Brgy. San Isidro, Rodriguez (Montalban), Rizal
13. Brgy. Pintong Bukawe, San Mateo, Rizal (SMSLFDC)
On or before June 30, 2011, the MMDA and the seventeen (17)
LGUs in Metro Manila are ordered to jointly submit a report on
the average amount of garbage collected monthly per district in all
the cities in Metro Manila from January 2009 up to December 31,
2010 vis-à-vis the average amount of garbage disposed monthly in
landfills and dumpsites. In its quarterly report for the last quarter
of 2010 and thereafter, MMDA shall report on the apprehensions
for violations of the penal provisions of RA 9003, RA 9275 and
other laws on pollution for the said period.
On or before June 30, 2011, the DPWH and the LGUs in Rizal,
Laguna, Cavite, Bulacan, Pampanga, and Bataan shall submit the
names and addresses of the informal settlers in their respective
areas who, as of September 30, 2010, own or occupy houses,
structures, constructions, and other encroachments built along
the Meycauayan-Marilao-Ob ando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna de Bay, and
other rivers, connecting waterways and esteros that discharge
wastewater into the Manila Bay, in breach of RA 7279 and other
applicable laws. On or before June 30, 2011, the DPWH and the
aforesaid LGUs shall jointly submit their plan for the removal of
said informal settlers and the demolition of the aforesaid
structures, constructions and encroachments, as well as the
completion dates for such activities which shall be implemented
not later than December 31, 2012.
(9) The Department of Health (DOH) shall submit to the Court
on or before June 30, 2011 the names and addresses of the owners
of septic and sludge companies including those that do not have
the proper facilities for the treatment and disposal of fecal sludge
and sewage coming from septic tanks.
The DOH shall implement rules and regulations on
27 | P a g e
Environmental Sanitation Clearances and shall require companies
to procure a license to operate from the DOH.
The DOH and DENR-Environmental Management Bureau shall
develop a toxic and hazardous waste management system by June
30, 2011 which will implement segregation of
hospital/toxic/hazardous wastes and prevent mixing with
municipal solid waste.
On or before June 30, 2011, the DOH shall submit a plan of
action to ensure that the said companies have proper disposal
facilities and the completion dates of compliance.
(10) The Department of Education (DepEd) shall submit to the
Court on or before May 31, 2011 a report on the specific subjects
on pollution prevention, waste management, environmental
protection, environmental laws and the like that it has integrated
into the school curricula in all levels for the school year 2011-
2012.
On or before June 30, 2011, the DepEd shall also submit its plan
of action to ensure compliance of all the schools under its
supervision with respect to the integration of the aforementioned
subjects in the school curricula which shall be fully implemented
by June 30, 2012.
(11) All the agencies are required to submit their quarterly reports
electronically using the forms below. The agencies may add other
key performance indicators that they have identified. SO
ORDERED.
A.C. No. 5688, June 04, 2009
FELIPE E. ABELLA, COMPLAINANT, VS. ATTY.
ASTERIA E. CRUZABRA, RESPONDENT.
R E S O L U T I O N CARPIO, J.:
Felipe E. Abella (complainant) filed a complaint for violation of
Canon 1 of the Code of Professional Responsibility and Sectio n
7(b)(2) of Republic Act No. 6713[1] (RA 6713) or the Code of
Conduct and Ethical Standards for Public Officials and
Employees against Atty. Asteria E. Cruzabra (respondent). In his
affidavit-complaint[2] dated 8 May 2002, complainant charged
respondent with engaging in private practice while employed in
the government service.
Complainant alleged that respondent was admitted to the
Philippine Bar on 30 May 1986 and was appointed as Deputy
Register of Deeds of General Santos City on 11 August
1987.[3] Complainant asserted that as Deputy Register of Deeds,
respondent filed a petition for commission as a notary public and
was commissioned on 29 February 1988 without obtaining prior
LAW O N P U B LI C O FFI C ER S
authority from the Secretary of the Department of Justice
(DOJ).[4] Complainant claimed that respondent has notarized
some 3,000 documents. [5] Complainant pointed out that
respondent only stopped notarizing documents when she was
reprimanded by the Chief of the Investigation Division of the
Land Registration Authority. [6]
Complainant contended that respondent could not justify her act
by pretending to be in good faith because even non-lawyers are
not excused from ignorance of the law. Complainant branded as
incredible respondent's claim that she was merely motivated by
public service in notarizing 3,000 documents. Complainant
pointed out that respondent spent money to buy the Notarial
Register Books and spent hours going over the documents
subscribed before her, thereby prejudicing her efficiency and
performance as Deputy Register of Deeds. Complainant believed
that even if respondent had obtained authority from the DOJ,
respondent would still be guilty of violating Section 7(b)(2) of RA
6713 because her practice as a notary public conflicts with her
official functions.[7]
In her Comment, respondent admitted that she was a notary
public from 29 February 1988 to 31 December 1989. [8]
Respondent stated that she was authorized by her superior, the
Register of Deeds, to act as a notary public. Respondent pointed
out that the Register of Deeds, Atty. Pelagio T. Tolosa, also
subscribed petitions and documents that were required to be
registered.[9] Respondent explained that the Register of Deeds
imposed the following conditions for her application as a notary
public:
x x x then up to the present as could be gleaned from the Certificatio n
4. That the application for commission was on the condition that
respondent cannot charge fees for documents required by the
Office to be presented and under oath. [10]
Respondent contended that when she filed her petition for
commission as a notary public, the requirement of approval from
the DOJ Secretary was still the subject of a pending query by one
of the Registrars and this fact was not known to respondent. [11]
Respondent maintained that she had no intention to violate any
rule of law. Respondent, as a new lawyer relying on the
competence of her superior, admitted that an honest mistake may
have been committed but such mistake was committed without
willfulness, malice or corruption. [12]
Respondent argued that she was not engaged in illegal practice as
a notary public because she was duly commissioned by the
28 | P a g e
court.[13] Respondent denied that she violated Section 7(b)(2) of
RA 6713 because she was authorized by her superior to act as a
notary public. Respondent reasoned that her being a notary public
complemented her functions as Deputy Register of Deeds
because respondent could immediately have documents notarized
instead of the registrants going out of the office to look for a
notary public. Respondent added that she did not charge fees for
the documents required by the office to be presented under
oath.[14]
Respondent insisted that contrary to complainant's claims, she
only notarized 135 documents as certified by the Clerk of Court
of the 11th Judicial Region, General Santos City. [15]
In her Report and Recommendation (Report) dated 25 January
2005, Investigating Commissioner Lydia A. Navarro
recommended to the IBP Board of Governors the dismissal of
the complaint against respondent for lack of merit. The Report
reads in part:
However, the fact that she applied for commission as Notary
Public without securing the approval of the proper authority
although she was allowed to do so by her superior officer, was not
her own undoing for having relied on the ample authority of her
superior officer, respondent being a neophyte in the law
profession for having newly passed the bar a year after at that
time.
Records further showed that after having been reprimanded by
Atty. Flestado for said mistake which was done in good faith
respondent ceased and desisted to perform notarial work since
issued by Clerk of Court VI Atty. Elmer D. Lastimosa of the 11 th
Judicial Region General Santos City; dated December 23, 2004
that 135 documents have been notarized by the respondent from
February 29, 1988 to December 31 1989 and there was no record
of any notarized documents from January 19, 1990 to Decemb er
21, 1991.[16]
In a Resolution dated 12 March 2005, the IBP Board of
Governors, in adopting and approving the Report, dismissed the
case for lack of merit.
Complainant claims that in dismissing the complaint for "lack of
merit" despite respondent's admission that she acted as a notary
public for two years, the IBP Board of Governors committed a
serious error amounting to lack of jurisdiction or authority. [17]
Section 7(b)(2) of RA 6713 provides:
LAW O N P U B LI C O FFI C ER S
Section 7. Prohibited Acts and Transactions. - In addition to acts and
omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute
prohibited acts and transactions of any public official and
employee and are hereby declared to be unlawful:
x x
(b) Outside employment and other activities related thereto. -
Public officials and employees during their incumbency shall not:
x x
(2) Engage in the private practice of their profession unless
authorized by the Constitution or law, provided, that such practice
will not conflict or tend to conflict with their official functions; or
xx x
Memorandum Circular No. 17[18] of the Executive Department
allows government employees to engage directly in the private
practice of their profession provided there is a written permission
from the Department head. It provides:
The authority to grant permission to any official or employee shall
be granted by the head of the ministry or agency in accord an ce
with Section 12, Rule XVIII of the Revised Civil Service Rules,
which provides:
"Sec. 12. No officer or employee shall engage directly in any
private business, vocation, or profession or be connected with any
commercial, credit, agricultural, or industrial undertaking without
a written permission from the head of Department; Provided,
That this prohibition will be absolute in the case of those officers
and employees whose duties and responsibilities require that their
entire time be at the disposal of the Government: Provided,
further, That if an employee is granted permission to engage in
outside activities, the time so devoted outside of office hours
should be fixed by the chief of the agency to the end that it will
not impair in any way the efficiency of the other officer or
employee: And provided, finally, That no permission is necessary
in the case of investments, made by an officer or employee, which
do not involve any real or apparent conflict between his private
interests and public duties, or in any way influence him in the
discharge of his duties, and he shall not take part in the
management of the enterprise or become an officer or member of
the board of directors",
Subject to any additional conditions which the head of the office
deems necessary in each particular case in the interest of the
29 | P a g e
service, as expressed in the various issuances of the Civil Service
Commission. (Boldfacing supplied)
It is clear that when respondent filed her petition for commission
as a notary public, she did not obtain a written permission from
the Secretary of the DOJ. Respondent's superior, the Register of
Deeds, cannot issue any authorization because he is not the head
x
of the Department. And even assuming that the Register of Deeds
authorized her, respondent failed to present any proof of that
written permission. Respondent cannot feign ignorance or good
faith because respondent filed her petition for commission as a
notary public after Memorandum Circular No. 17 was issued in
x
1986.
In Yumol, Jr. v. Ferrer Sr.,[19] we suspended a lawyer employed in
the Commission on Human Rights (CHR) for failing to obtain a
written authority and approval with a duly approved leave of
absence from the CHR. We explained:
Crystal clear from the foregoing is the fact that private practice of
law by CHR lawyers is not a matter of right. Although the
Commission allows CHR lawyers to engage in private practice, a
written request and approval thereof, with a duly approved leave
of absence for that matter are indispensable. In the case at bar, the
record is bereft of any such written request or duly approved leave
of absence. No written authority nor approval of the practice and
approved leave of absence by the CHR was ever presented by
respondent. Thus, he cannot engage in private practice.
As to respondent's act of notarizing documents, records show that
he applied for commission as notary public on 14 November
2000, before the Regional Trial Court (RTC) of San Fernando,
Pampanga, Branch 42. This was granted by RTC Executive Judge
Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR
authorized respondent to act as notary public only on 29 October
2001. Considering the acts of notarization are within the ambit of
the term "practice of law," for which a prior written request and
approval by the CHR to engage into it are required, the crucial
period to be considered is the approval of the CHR on 29 October
2001 and not the approval of the RTC on 04 December 2000. [20]
In Muring, Jr. v. Gatcho,[21] we suspended a lawyer for having filed
petitions for commission as a notary public while employed as a
court attorney. We held:
Atty. Gatcho should have known that as a government lawyer, he
was prohibited from engaging in notarial practice, or in any form
of private legal practice for that matter. Atty. Gatcho cannot now
feign ignorance or good faith, as he did not seek to exculpate
himself by providing an explanation for his error. Atty. Gatcho's
filing of the petition for commission, while not an actual
LAW O N P U B LI C O FFI C ER S
engagement in the practice of law, appears as a furtive attempt to filing of the appropriate action in court.
evade the prohibition. [22]
Thereafter, Regina and Antonio filed a complaint for ejectmen t
Under the Uniform Rules on Administrative Cases in the Civil
against Elizabeth and Pastor in the Metropolitan Trial Court of
Service, engaging in the private practice of profession, when
Manila, Branch 11. Respondent entered his appearance as counsel
unauthorized, is classified as a light offense punishable by
for the defendants in that case. Because of this, complainant filed
reprimand.[23]
the instant administrative complaint, [6] claiming that respondent
committed an act of impropriety as a lawyer and as a public officer
Wherefore, we find Atty. Asteria E. Cruzabra guilty of engaging
when he stood as counsel for the defendants despite the fact that
in notarial practice without the written authority from the
he presided over the conciliation proceedings between the
Secretary of the Department of Justice, and accordingly we
litigants as punong barangay.
REPRIMAND her. She is warned that a repetition of the same
or similar act in the future shall merit a more severe sanction.
In his defense, respondent claimed that one of his duties as punong
barangay was to hear complaints referred to the barangay’s Lupong
SO ORDERED.
Tagapamayapa. As such, he heard the complaint of Regina and
Antonio against Elizabeth and Pastor. As head of the Lupon, he
performed his task with utmost objectivity, without bias or
partiality towards any of the parties. The parties, however, were
not able to amicably settle their dispute and Regina and Antonio
filed the ejectment case. It was then that Elizabeth sought his legal
assistance. He acceded to her request. He handled her case for
free because she was financially distressed and he wanted to
prevent the commission of a patent injustice against her.

The complaint was referred to the Integrated Bar of the

Philippines (IBP) for investigation, report and recommendation.
As there was no factual issue to thresh out, the IBP’s Commission
A.C. No. 5738, February 19, 2008 on Bar Discipline (CBD) required the parties to submit their
respective position papers. After evaluating the contentions of the
WILFREDO M. CATU, Complainant, vs. ATTY. parties, the IBP-CBD found sufficient ground to discipline
VICENTE G. RELLOSA, Respondent. respondent.[7]

R E S O L U T I O N CORONA, J.: According to the IBP-CBD, respondent admitted that, as punong

Complainant Wilfredo M. Catu is a co-owner of a lot [1] and the
building erected thereon located at 959 San Andres Street, Malate,
Manila. His mother and brother, Regina Catu and Antonio Catu,
contested the possession of Elizabeth C. Diaz-Catu [2] and
Antonio Pastor[3] of one of the units in the building. The latter
ignored demands for them to vacate the premises. Thus, a
complaint was initiated against them in the Lupong Tagapamayapa
of Barangay 723, Zone 79 of the 5th District of Manila[4] where the
parties reside.
Respondent, as punong barangay of Barangay 723, summoned the
parties to conciliation meetings. [5] When the parties failed to arrive
at an amicable settlement, respondent issued a certification for the
barangay, he presided over the conciliation proceedings and heard
the complaint of Regina and Antonio against Elizabeth and
Pastor. Subsequently, however, he represented Elizabeth and
Pastor in the ejectment case filed against them by Regina and
Antonio. In the course thereof, he prepared and signed pleadings
including the answer with counterclaim, pre-trial brief, position
paper and notice of appeal. By so doing, respondent violated Rule
6.03 of the Code of Professional Responsibility:
Rule 6.03 – A lawyer shall not, after leaving government service,
accept engagement or employment in connection with any matter
in which he intervened while in said service.
Furthermore, as an elective official, respondent contravened the
prohibition under Section 7(b)(2) of RA 6713: [8]

30 | P a g e LAW O N P U B LI C O FFI C ER S
SEC. 7. Prohibited Acts and Transactions. – In addition to acts and Respondent was an incumbent punong barangay at the time he
omissions of public officials and employees now prescribed in the committed the act complained of. Therefore, he was not covered
Constitution and existing laws, the following shall constitute by that provision.
prohibited acts and transactions of any public official and s
employee and are hereby declared to be unlawful: Section 90 of RA 7160, Not
Section 7(b)(2) of RA 6713,
xxx xxx xxx Governs The Practice of
Profession of Elective Local
(b) Outside employment and other activities related thereto. – Public Government Officials
officials and employees during their incumbency shall not:
Section 7(b)(2) of RA 6713 prohibits public officials and
xxx xxx xxx employees, during their incumbency, from engaging in the private
(2) Engage in the private practice of profession unless practice of their profession “unless authorized by the Constitution
authorized by the Constitution or law, provided that such or law, provided that such practice will not conflict or tend to
practice will not conflict or tend to conflict with their official conflict with their official functions.” This is the general law which
functions; xxx (emphasis supplied) applies to all public officials and employees.

According to the IBP-CBD, respondent’s violation of this

For elective local government officials, Section 90 of RA 7160 [12]
prohibition constituted a breach of Canon 1 of the Code of
governs:
Professional Responsibility:
SEC. 90. Practice of Profession. – (a) All governors, city and municipal
CANON 1. A LAWYER SHALL UPHOLD THE
mayors are prohibited from practicing their profession or
CONSTITUTION, OBEY THE LAWS OF THE LAND,
engaging in any occupation other than the exercise of their
PROMOTE RESPECT FOR LAW AND LEGAL
functions as local chief executives.
PROCESSES. (emphasis supplied)
(b) Sanggunian members may practice their professions, engage in
For these infractions, the IBP-CBD recommended the
any occupation, or teach in schools except during session hours:
respondent’s suspension from the practice of law for one month
Provided, That sanggunian members who are members of the Bar
with a stern warning that the commission of the same or similar
shall not:
act will be dealt with more severely. [9] This was adopted and
approved by the IBP Board of Governors. [10]
(1) Appear as counsel before any court in any civil case wherein a
local government unit or any office, agency, or instrumentality of
We modify the foregoing findings regarding the transgression of
the government is the adverse party;
respondent as well as the recommendation on the imposable
penalty.
(2) Appear as counsel in any criminal case wherein an officer or
employee of the national or local government is accused of an
Rule 6.03 of the Code
offense committed in relation to his office;
of Professional Responsibility
Applies Only to Former
(3) Collect any fee for their appearance in administrative
Government Lawyer s
proceedings involving the local government unit of which he is an
official; and
Respondent cannot be found liable for violation of Rule 6.03 of
the Code of Professional Responsibility. As worded, that Rule
(4) Use property and personnel of the Government except when
applies only to a lawyer who has left government service and in
the sanggunian member concerned is defending the interest of the
connection “with any matter in which he intervened while in said
Government.
service.” In PCGG v. Sandiganbayan,[11] we ruled that Rule 6.03
prohibits former government lawyers from acceptin g
(c) Doctors of medicine may practice their profession even during
“engagement or employment in connection with any matter in
official hours of work only on occasions of emergency: Provided,
which [they] had intervened while in said service.”
That the officials concerned do not derive monetary
compensation therefrom.
31 | P a g e LAW O N P U B LI C O FFI C ER S
This is a special provision that applies specifically to the practice because they are not mandated to serve full time. In fact, the
of profession by elective local officials. As a special law with a sangguniang barangay is supposed to hold regular sessions only twice
definite scope (that is, the practice of profession by elective local a month.[16]
officials), it constitutes an exception to Section 7(b)(2) of RA
6713, the general law on engaging in the private practice of Accordingly, as punong barangay, respondent was not forbidden to
profession by public officials and employees. Lex specialibus derogat practice his profession. However, he should have procured prior
generalibus.[13] permission or authorization from the head of his Department, as
required by civil service regulations.
Under RA 7160, elective local officials of provinces, cities,
municipalities and barangays are the following: the governor, the A Lawyer In Government Service
vice governor and members of the sangguniang panlalawigan for Who Is Not Prohibited To Practice
provinces; the city mayor, the city vice mayor and the members of Law Must Secure Prior Authority
the sangguniang panlungsod for cities; the municipal mayor, the From The Head Of His Department
municipal vice mayor and the members of the sangguniang bayan for
municipalities and the punong barangay, the members of the A civil service officer or employee whose responsibilities do not
sangguniang barangay and the members of the sangguniang kabataan require his time to be fully at the disposal of the government can
for barangays. engage in the private practice of law only with the written
permission of the head of the department concerned. [17] Sectio n
Of these elective local officials, governors, city mayors and 12, Rule XVIII of the Revised Civil Service Rules provides:
municipal mayors are prohibited from practicing their profession Sec. 12. No officer or employee shall engage directly in any
or engaging in any occupation other than the exercise of their private business, vocation, or profession or be connected with
functions as local chief executives. This is because they are any commercial, credit, agricultural, or industrial undertaking
required to render full time service. They should therefore devote without a written permission from the head of the
all their time and attention to the performance of their official Department: Provided, That this prohibition will be absolute in
duties. the case of those officers and employees whose duties and
responsibilities require that their entire time be at the disposal of
On the other hand, members of the sangguniang panlalawigan , the Government; Provided, further, That if an employee is granted
sangguniang panlungsod or sangguniang bayan may practice their permission to engage in outside activities, time so devoted outside
professions, engage in any occupation, or teach in schools excep t of office hours should be fixed by the agency to the end that it
during session hours. In other words, they may practice their will not impair in any way the efficiency of the officer or
professions, engage in any occupation, or teach in schools outside employee: And provided, finally, that no permission is necessary in
their session hours. Unlike governors, city mayors and municipal the case of investments, made by an officer or employee, which
mayors, members of the sangguniang panlalawigan, sangguniang do not involve real or apparent conflict between his private
panlungsod or sangguniang bayan are required to hold regular sessions interests and public duties, or in any way influence him in the
only at least once a week. [14] Since the law itself grants them the discharge of his duties, and he shall not take part in the
authority to practice their professions, engage in any occupatio n management of the enterprise or become an officer of the board
or teach in schools outside session hours, there is no longer any of directors. (emphasis supplied)
need for them to secure prior permission or authorization from
As punong barangay, respondent should have therefore obtained the
any other person or office for any of these purposes.
prior written permission of the Secretary of Interior and Local
Government before he entered his appearance as counsel for
While, as already discussed, certain local elective officials (like
Elizabeth and Pastor. This he failed to do.
governors, mayors, provincial board members and councilors) are
expressly subjected to a total or partial proscription to practice
The failure of respondent to comply with Section 12, Rule XVIII
their profession or engage in any occupation, no such interdiction
of the Revised Civil Service Rules constitutes a violation of his
is made on the punong barangay and the members of the sangguniang
oath as a lawyer: to obey the laws. Lawyers are servants of the law,
barangay. Expressio unius est exclusio alterius.[15] Since they are
vires legis, men of the law. Their paramount duty to society is to
excluded from any prohibition, the presumption is that they are
obey the law and promote respect for it. To underscore the
allowed to practice their profession. And this stands to reason
32 | P a g e LAW O N P U B LI C O FFI C ER S
primacy and importance of this duty, it is enshrined as the first furnish copies to all the courts of the land for their information
canon of the Code of Professional Responsibility. and guidance.

In acting as counsel for a party without first securing the required SO ORDERED.
written permission, respondent not only engaged in the
unauthorized practice of law but also violated civil service rules
which is a breach of Rule 1.01 of the Code of Professional
Responsibility:
Rule 1.01 – A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)

For not living up to his oath as well as for not complying with the
exacting ethical standards of the legal profession, respondent
failed to comply with Canon 7 of the Code of Professional
Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD
THE INTEGRITY AND THE DIGNITY OF THE
LEGAL PROFESSION AND SUPPORT THE ACTIVITIES
OF THE INTEGRATED BAR. (emphasis supplied)

Indeed, a lawyer who disobeys the law disrespects it. In so doing,

he disregards legal ethics and disgraces the dignity of the legal
profession.

Public confidence in the law and in lawyers may be eroded by the

irresponsible and improper conduct of a member of the bar. [18]
Every lawyer should act and comport himself in a manner that
promotes public confidence in the integrity of the legal G.R. No. 196231, January 28, 2014
profession.[19]
EMILIO A. GONZALES III, PETITIONER, VS. OFFICE

A member of the bar may be disbarred or suspended from his OF THE PRESIDENT OF THE PHILIPPINES ,

office as an attorney for violation of the lawyer’s oath [20] and/or ACTING THROUGH AND REPRESENTED BY

for breach of the ethics of the legal profession as embodied in the EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,

Code of Professional Responsibility. SENIOR DEPUTY EXECUTIVE SECRETARY JOSE

AMOR M. AMORANDO, OFFICER-IN-CHARGE –

WHEREFORE, respondent Atty. Vicente G. Rellosa is hereb y OFFICE OF THE DEPUTY EXECUTIVE SECRETARY

found GUILTY of professional misconduct for violating his oath FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON,

as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY.

Professional Responsibility. He is therefore SUSPENDED from CARLITO D. CATAYONG, RESPONDENTS .

the practice of law for a period of six months effective from his
receipt of this resolution. He is sternly WARNED that any [G.R. No. 196232]

repetition of similar acts shall be dealt with more severely.

WENDELL BARRERAS-SULIT PETITIONER, VS.

Respondent is strongly advised to look up and take to heart the ATTY. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS

meaning of the word delicadeza. EXECUTIVE SECRETARY, OFFICE OF THE

PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO

Let a copy of this resolution be furnished the Office of the Bar D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR.,

Confidant and entered into the records of respondent Atty. IN THEIR CAPACITIES AS CHAIRMAN AND

Vicente G. Rellosa. The Office of the Court Administrator shall MEMBERS OF OFFICE OF MALACAÑANG LEGA L

33 | P a g e LAW O N P U B LI C O FFI C ER S
AFFAIRS, RESPONDENTS . We briefly narrate the facts that preceded the filing of the petitions
and the present motion for reconsideration.
D E CI SION
I. ANTECEDENTS
BRION, J.:
A. Gonzales’ petition (G.R. No. 196231)
We resolve the Office of the President’s (OP’s) motion for
reconsideration of our September 4, 2012 Decision [1] which ruled a. Factual antecedents
on the petitions filed by Deputy Ombudsman Emilio Gonzales
III and Special Prosecutor Wendell Barreras-Sulit. Their petitions On May 26, 2008, Christian Kalaw filed separate charges with the
challenged the constitutionality of Section 8(2) of Republic Act Philippine National Police Internal Affairs Service (PNP-IAS) and
(RA) No. 6770.[2] with the Manila City Prosecutor’s Office against Manila Police
District Senior Inspector Rolando Mendoza and four others
In the challenged Decision, the Court upheld the constitutionality (Mendoza, et al.) for robbery, grave threat, robbery extortion and
of Section 8(2) of RA No. 6770 and ruled that the President has physical injury.[4]
disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) On May 29, 2008, Police Senior Superintendent Atty. Claren ce
found Gonzales guilty of Gross Neglect of Duty and Grave Guinto filed an administrative charge for grave misconduct with
Misconduct constituting betrayal of public trust; and (ii) imposed the National Police Commission (NAPOLCOM) PNP-NCRPO
on him the penalty of dismissal. against Mendoza, et al. based on the same allegations made by
Kalaw before the PNP-IAS.[5]
Sulit, who had not then been dismissed and who simply sought to
restrain the disciplinary proceedings against her, solely questioned On July 2, 2008, Gonzales, Deputy Ombudsman for Military and
the jurisdiction of the OP to subject her to disciplinary Other Law Enforcement Officers (MOLEO), directed the
proceedings. The Court affirmed the continuation of the NAPOLCOM to turn over the records of Mendoza’s case to his
proceedings against her after upholding the constitutionality of office. The Office of the Regional Director of the NAPOLCOM
Section 8(2) of RA No. 6770. duly complied on July 24, 2008. [6] Mendoza, et al. filed their
position papers with Gonzales, in compliance with his Order. [7]

The fallo of our assailed Decision reads:

WHEREFORE, in G.R. No. 196231, the decision of the Office
of the President in OP Case No. 10-J-460 is REVERSED and
SET ASIDE. Petitioner Emilio A. Gonzales III is ordered
REINSTATED with payment of backwages corresponding to the
period of suspension effective immediately, even as the Office of
the Ombudsman is directed to proceed with the investigation in
connection with the above case against petitioner. In G.R. No.
196232, We AFFIRM the continuation of OP-DC Case No. 11-
B-003 against Special Prosecutor Wendell Barreras-Sulit for
alleged acts and omissions tantamount to culpable violation of the
Constitution and a betrayal of public trust, in accordan ce with
Section 8(2) of the Ombudsman Act of 1989. [3]
In view of the Court’s ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General
(OSG).
34 | P a g e
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26,
2008), the Office of the City Prosecutor of Manila City dismissed
Kalaw’s complaint against Mendoza, et al. for his failure to
substantiate his allegations. [8] Similarly, on October 17, 2008, the
PNP-IAS recommended the dismissal without prejudice of the
administrative case against Mendoza, et al. for Kalaw’s failure to
prosecute.[9]
On February 16, 2009, after preparing a draft decision on
Mendoza, et al.’s case, Gonzales forwarded the entire records to
the Office of then Ombudsman Merceditas Gutierrez for her
review.[10] In his draft decision, Gonzales found Mendoza, et al.
guilty of grave misconduct and imposed on them the penalty of
dismissal from the service. [11]
Mendoza, et al. received a copy of the Ombudsman’s decision that
approved Gonzales’ recommendation on October 30,
2009. Mendoza, et al. filed a motion for reconsideration [12] on
November 5, 2009, followed by a Supplem ent to the Motion for
LAW O N P U B LI C O FFI C ER S
Reconsideration.[13]
On March 31, 2011, the OP found Gonzales guilty as charged and
On December 10, 2009, the MOLEO-Records Section forwarded dismissed him from the service. [21] According to the OP, “the
Mendoza, et al.’s case records to the Criminal Investigation, inordinate and unjustified delay in the resolution of [Mendoza’s]
Prosecution and Administrative Bureau-MOLEO. On Motion for Reconsideration [‘that spanned for nine (9) long
December 14, 2009, the case was assigned to Graft Investigation months’] xxx amounted to gross neglect of duty” and “constituted
and Prosecution Officer (GIPO) Dennis Garcia for review and a flagrant disregard of the Office of the Ombudsman’s own Rules
recommendation.[14] of Procedure.”[22]

GIPO Garcia released a draft order[15] to his immediate superior, c. The Petition
Director Eulogio S. Cecilio, for appropriate action on April 5,
2010. Dir. Cecilio signed and forwarded the draft order to Gonzales posited in his petition that the OP has no administrative
Gonzales’ office on April 27, 2010. Gonzales reviewed the draft disciplinary jurisdiction over a Deputy Ombudsman. Under
and endorsed the order, together with the case records, on May Section 21 of RA No. 6770, it is the Ombudsman who exercises
6, 2010 for the final approval by the Ombudsman. [16] administrative disciplinary jurisdiction over the Deputy
Ombudsman.
On August 23, 2010, pending final action by the Ombudsman on
Mendoza, et al.’s case, Mendoza hijacked a tourist bus and held the On the merits, Gonzales argued that his office received the draft
21 foreign tourists and the four Filipino tour assistants on board order from GIPO Garcia on April 27, 2010. On May 6, 2010, he
as hostages. While the government exerted earnest attempts to completed his review of the draft, approved it, and transmitted it
peacefully resolve the hostage-taking, it ended tragically, resulting to the Office of the Ombudsman for final approval. Since the
in the deaths of Mendoza and several others on board the hijacked draft order on Mendoza’s motion for reconsideration had to
bus. undergo different levels of preparation, review and approval, the
period it took to resolve the motion could not be unjustified, since
In the aftermath, President Benigno C. Aquino III directed the he himself acted on the draft order only within nine (9) calendars
Department of Justice and the Department of Interior and Local days from his receipt of the order. [23]
Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order B. Sulit’s petition (G.R. No. 196232)
No. 01-2010, creating an Incident Investigation and Review
Committee (IIRC). In April 2005, the Office of the Ombudsman charged Major
General Carlos F. Garcia and several others, before the
In its September 16, 2010 First Report, the IIRC found the Sandiganbayan, with plunder and money laundering. On May 7,
Ombudsman and Gonzales accountable for their “gross 2007, Garcia filed an Urgent Petition for Bail which the
negligence and grave misconduct in handling the case against prosecution opposed. The Sandiganbayan denied Garcia's urgent
Mendoza.”[17] The IIRC stated that the Ombudsman and petition for bail on January 7, 2010, in view of the strength of the
Gonzales’ failure to promptly resolve Mendoza’s motion for prosecution’s evidence against Garcia.
reconsideration, “without justification and despite repeated pleas”
xxx “precipitated the desperate resort to hostage-taking.”[18] The On February 25, 2010, the Office of the Ombudsman, through
IIRC recommended the referral of its findings to the OP for Sulit and her prosecutorial staff, entered into a plea bargaining
further determination of possible administrative offenses and for agreement (Agreement) with Garcia.[24] Garcia thereby agreed to:
the initiation of the proper administrative proceedings.[19] (i) withdraw his plea of not guilty to the charge of plunder and
enter a plea of guilty to the lesser offense of indirect bribery; and
Accordingly, on October 15, 2010, Gonzales was formally (ii) withdraw his plea of not guilty to the charge of money
charged before the OP for Gross Neglect of Duty and/or laundering and enter a guilty plea to the lesser offense of
Inefficiency in the Performance of Official Duty and for facilitating money laundering. In exchange, he would convey to
Misconduct in Office. [20] the government his ownership, rights and other interests over the
real and personal properties enumerated in the Agreement and the
b. The OP ruling bank deposits alleged in the information. [25]
35 | P a g e LAW O N P U B LI C O FFI C ER S
 validity or invalidity of the presidential action. If the President
The Sandiganbayan approved the Agreement on May 4, 2010 [26] does not have any constitutional authority to discipline a Deputy
based on the parties’ submitted Joint Motion for Approval. [27] Ombudsman and/or a Special Prosecutor in the first place, then
any ruling on the legal correctness of the OP’s decision on the
The apparent one-sidedness of the Agreement drew public merits will be an empty one.
outrage and prompted the Committee on Justice of the House of
Representatives to conduct an investigation. After public In other words, since the validity of the OP’s decision on the
hearings, the Committee found that Sulit, her deputies and merits of the dismissal is inextricably anchored on the final and
assistants committed culpable violations of the Constitution and correct ruling on the constitutional issue, the whole case –
betrayal of public trust – grounds for removal under Section 8(2) including the constitutional issue – remains alive for the Court’s
of RA No. 6770.[28] The Committee recommended to the consideration on motion for reconsideration .
President the dismissal from the service of Sulit and the filing of
appropriate charges against her deputies and assistants before the b. The justiciability of the constitutional
appropriate government office. issue raised in the petitions

Accordingly, the OP initiated an administrative disciplinary We clarify, too, that the issue of whether a Deputy Ombudsman
proceeding against Sulit. [29] On March 24, 2011, Sulit filed her may be subjected to the administrative disciplinary jurisdiction of
Written Explanation, questioning the OP’s jurisdiction.[30] The the President (concurrently with that of the Ombudsman) is a
question of jurisdiction notwithstanding, the OP set the case for justiciable – not a political – question. A justiciable question is
preliminary investigation on April 15, 2011, prompting Sulit to one which is inherently susceptible of being decided on grounds
seek relief from this Court. recognized by law, [31] as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers
II. COURT’S RULING conferred on a political branch of the government. [32]

On motion for reconsideration and further reflection, the Court In resolving the petitions, we do not inquire into the wisdom of
votes to grant Gonzales’ petition and to declare Section 8(2) of the Congress’ choice to grant concurrent disciplinary authority to
RA No. 6770 unconstitutional with respect to the Office of the the President. Our inquiry is limited to whether such statutory
Ombudsman. (As the full explanation of the Court’s vote grant violates the Constitution, particularly whether Section 8(2)
describes below, this conclusion does not apply to Sulit as the of RA No. 6770 violates the core constitutional principle of the
grant of independence is solely with respect to the Office of the independence of the Office of the Ombudsman as expressed in
Ombudsman which does not include the Office of the Special Section 5, Art. XI of the Constitution.
Prosecutor under the Constitution. The prevailing ruling on this
latter point is embodied in the Concurring and Dissenting To be sure, neither the Executive nor the Legislative can create
Opinion of J. Marvic Mario Victor Leonen). the power that Section 8(2) of RA No. 6770 grants where the
Constitution confers none. When exercised authority is drawn
A. Preliminary considerations : from a vacuum, more so when the authority runs counter to a core
constitutional principle and constitutional intents, the Court is
a. Absence of motion for reconsideration duty-bound to intervene under the powers and duties granted and
on the part of the petitioners imposed on it by Article VIII of the Constitution.

At the outset, the Court notes that Gonzales and Sulit did not file B. The Deputy Ombudsman: Constitutional Issue
a motion for reconsideration of the Court’s September 4, 2012
Decision; only the OP, through the OSG, moved for the a. The Philippine Ombudsman
reconsideration of our ruling reinstating Gonzales.
Prior to the 1973 Constitution, past presidents established several
This omission, however, poses no obstacle for the Court’s review Ombudsman-like agencies to serve as the people's medium for
of its ruling on the whole case since a serious constitutional airing grievances and for direct redress against abuses and
question has been raised and is one of the underlying bases for the misconduct in the government. Ultimately, however, these
36 | P a g e LAW O N P U B LI C O FFI C ER S
agencies failed to fully realize their objective for lack of the political
independence necessary for the effective performance of their
function as government critic. [33]
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to
give it political independence and adequate powers to enforce its
mandate. Pursuant to the 1973 Constitution, President Ferdinand
Marcos enacted Presidential Decree (PD) No. 1487, as amended
by PD No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked
principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any
government-owned or controlled corporation. When the Office
of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive authority to
conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control
the prosecution of these cases. [34]
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the
1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state
policy in Section 27, Article II [35] and the standard of
accountability in public service under Section 1, Article XI of the
1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against
graft and corruption.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficien cy;
act with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office
of the Ombudsman is envisioned to be the “protector of the
people” against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action
bureau.[36] This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses of
the bureaucracy. Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to
37 | P a g e
further realize the vision of the Constitution. Section 21 of RA
No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. —
The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the
Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations
and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress,
and the Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an “activist watchman,” [37]
the Court has upheld its actions, although not squarely falling
under the broad powers granted it by the Constitution and by RA
No. 6770, if these actions are reasonably in line with its official
function and consistent with the law and the Constitution. [38]
The Ombudsman’s broad investigative and disciplinary powers
include all acts of malfeasance, misfeasance, and nonfeasance of
all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these
broad powers, the Constitution saw it fit to insulate the Office of
the Ombudsman from the pressures and influence of officialdom
and partisan politics and from fear of external reprisal by making
it an “independent” office. Section 5, Article XI of the
Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional agen cy
that is considered “a notch above other grievance-handlin g
investigative bodies.” [39] It has powers, both constitutional
and statutory, that are commensurate with its daunting task
of enforcing accountability of public officers.[40]
b. “Independence” of constitutional bodies
vis-a-vis the Ombudsman’s independence
Under the Constitution, several constitutional bodies have been
expressly labeled as “independent.”[41] The extent of the
independence enjoyed by these constitutional bodies however
LAW O N P U B LI C O FFI C ER S
varies and is to be interpreted with two significant considerations
in mind: first, the functions performed or the powers involved in
a given case; and second, consistency of any allowable interferen ce
to these powers and functions, with the principle of checks and
balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by
the Constitutional Commissions shares certain characteristics – they do not
owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these
“independent” bodies be insulated from political pressure to the
extent that the absence of “independence” would result in the
impairment of their core functions .
In Bengzon v. Drilon,[42] involving the fiscal autonomy of the
Judiciary, we ruled against the interference that the President may
bring and maintained that the independence and the flexibility of
the Judiciary, the Constitutional Commissions and the Office of
the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy
and violative not only the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our
constitutional system is based.
The constitutional deliberations explain the Constitutional
Commissions’ need for independence. In the deliberations of
the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil
Service Commission, instead of one created by law, on the
premise that the effectivity of this body is dependent on its
freedom from the tentacles of politics. [43] In a similar manner, the
deliberations of the 1987 Constitution on the Commission on
Audit highlighted the developments in the past Constitutions
geared towards insulating the Commission on Audit from political
pressure.[44]
Notably, the Constitution also created an “independent”
Commission on Human Rights, although it enjoys a lesser degree
of independence since it is not granted fiscal autonomy in the
manner fiscal autonomy is granted to the constitutional
38 | P a g e
commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire to
keep the Commission independent from the executive branch and other
political leaders:
MR. MONSOD. We see the merits of the arguments of
Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position
of the committee is that we need a body that would be able to
work and cooperate with the executive because the Commissioner
is right. Many of the services needed by this commission would
need not only the cooperation of the executive branch of the
government but also of the judicial branch of government. This is
going to be a permanent constitutional commission over time. We
also want a commission to function even under the worst
circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still
function during that time? Hence, we are willing to accep t
suggestions from Commissioner Rodrigo on how to reconcile
this. We realize the need for coordination and cooperation. We
also would like to build in some safeguards that it will not be
rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions
or organizations on human rights go to a country, the most
credible organizations are independent human rights bodies. Very
often these are private organizations, many of which are
prosecuted, such as those we find in many countries in Latin
America. In fact, what we are proposing is an independent
body on human rights, which would provide governments
with credibility precisely because it is independent of the
present administration. Whatever it says on the human rights
situation will be credible because it is not subject to pressure or
control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those
who are in power yesterday are in opposition today and those who
are in power today may be in the opposition tomorrow.
Therefore, if we have a Commission on Human Rights that
would investigate and make sure that the rights of each one
is protected, then we shall have a body that could stand up
to any power, to defend the rights of individuals against
arrest, unfair trial, and so on.[45]
These deliberative considerations abundantly show that the
LAW O N P U B LI C O FFI C ER S
independent constitutional commissions have been consistently are crucial to its existence and proper functioning. [50]
intended by the framers to be independent from executive
control or supervision or any form of political influence . At c. Section 8(2) of RA No. 6770 vesting
least insofar as these bodies are concerned, jurisprudence is disciplinary authority in the President
not scarce on how the “independence” granted to these over the Deputy Ombudsman violates
bodies prevents presidential interference. the independence of the Office of the
Ombudsman and is thus
In Brillantes, Jr. v. Yorac,[46] we emphasized that the Constitutional unconstitutional
Commissions, which have been characterized under the
Constitution as “independent,” are not under the control of the Our discussions, particularly the Court’s expressed caution against
President, even if they discharge functions that are executive in nature. The presidential interference with the constitutional commissions, on
Court declared as unconstitutional the President’s act of one hand, and those expressed by the framers of the 1987
temporarily appointing the respondent in that case as Acting Constitution, on the other, in protecting the independence of the
Chairman of the Comelec “however well-meaning”[47] it might Constitutional Commissions, speak for themselves as
have been. overwhelming reasons to invalidate Section 8(2) of RA No. 6770
for violating the independence of the Office of the Ombudsman.
In Bautista v. Senator Salonga,[48] the Court categorically stated that
the tenure of the commissioners of the independent Commission In more concrete terms, we rule that subjecting the Deputy
on Human Rights could not be placed under the discretionary Ombudsman to discipline and removal by the President,
power of the President: whose own alter egos and officials in the Executive
Department are subject to the Ombudsman’s disciplinary
Indeed, the Court finds it extremely difficult to conceptualize how authority, cannot but seriously place at risk the
an office conceived and created by the Constitution to be independence of the Office of the Ombudsman itself. The
independent – as the Commission on Human Rights – and Office of the Ombudsman, by express constitutional mandate,
vested with the delicate and vital functions of investigating includes its key officials, all of them tasked to support the
violations of human rights, pinpointing responsibility and Ombudsman in carrying out her mandate. Unfortunately,
recommending sanctions as well as remedial measures therefor, intrusion upon the constitutionally-granted independence is what
can truly function with independence and effectiveness, Section 8(2) of RA No. 6770 exactly did. By so doing, the law
when the tenure in office of its Chairman and Members is directly collided not only with the independence that the
made dependent on the pleasure of the President. Executive Constitution guarantees to the Office of the Ombudsman, but
Order No. 163-A, being antithetical to the constitutional mandate inevitably with the principle of checks and balances that the
of independence for the Commission on Human Rights has to be creation of an Ombudsman office seeks to revitalize.
declared unconstitutional.
What is true for the Ombudsman must be equally and
Again, in Atty. Macalintal v. Comelec,[49] the Court considered even necessarily true for her Deputies who act as agents of the
the mere review of the rules of the Commission on Elections by Ombudsman in the performance of their duties. The
Congress a “trampling” of the constitutional mandate of Ombudsman can hardly be expected to place her complete trust
independence of this body. Obviously, the mere review of rules in her subordinate officials who are not as independent as she is,
places considerably less pressure on a constitutional body than the if only because they are subject to pressures and controls external
Executive’s power to discipline and remove key officials of the to her Office. This need for complete trust is true in an ideal
Office of the Ombudsman, yet the Court struck down the law as setting and truer still in a young democracy like the Philippines
unconstitutional. where graft and corruption is still a major problem for the
government. For these reasons, Section 8(2) of RA No. 6770
The kind of independence enjoyed by the Office of the (providing that the President may remove a Deputy
Ombudsman certainly cannot be inferior – but is similar in degree Ombudsman) should be declared void.
and kind – to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all th ese The deliberations of the Constitutional Commission on the
offices fill the political interstices of a republican democracy that independence of the Ombudsman fully support this position.
39 | P a g e LAW O N P U B LI C O FFI C ER S
Commissioner Florenz Regalado of the Constitutional constitutional intent of creating an Office of the Ombudsman as
Commission expressed his apprehension that any form of champion of the people against corruption and bureaucracy.
presidential control over the Office of the Ombudsman would
diminish its independence. [51] The following exchanges between d. The mutual-protection argument for
Commissioners Blas Ople and Christian Monsod further reveal crafting Section 8(2)of RA No. 6770
the constitutional intent to keep the Office of the Ombudsman
independent from the President: In crafting Section 8(2) of RA No. 6770, Congress apparently
addressed the concern that a lack of an external check against the
MR. OPLE. xxx Deputy Ombudsman would result in mutual protection between
the Ombudsman and her Deputies.
May I direct a question to the Committee? xxx [W]ill the
Committee consider later an amendment xxx, by way of While the preceding discussion already suffices to address this
designating the office of the Ombudsman as a constitutional arm concern, it should be added that this concern stands on shaky
for good government, efficiency of the public service and the grounds since it ignores the existing checks and balances alread y
integrity of the President of the Philippines, instead of creatin g in place. On the one hand, the Ombudsman’s Deputies cannot
another agency in a kind of administrative limbo which would be protect the Ombudsman because she is subject to the
accountable to no one on the pretext that it is a constitutional impeachment power of Congress. On the other hand, the
body? Ombudsman’s attempt to cover up the misdeeds of her Deputies
can be questioned before the Court on appeal or certiorari. The
MR. MONSOD. The Committee discussed that during our same attempt can likewise subject her to impeachment.
committee deliberations and when we prepared the report, it was
the opinion of the Committee — and I believe it still is — that it The judicial recourse available is only consistent with the nature
may not contribute to the effectiveness of this office of the of the Supreme Court as a non-political independent body
Ombudsman precisely because many of the culprits in mandated by the Constitution to settle judicial and quasi-judicial
inefficiency, injustice and impropriety are in the executive disputes, whose judges and employees are not subject to the
department. Therefore, as we saw the wrong implementation of disciplinary authority of the Ombudsman and whose neutrality
the Tanodbayan which was under the tremendous influence of the would be less questionable. The Members of the Court
President, it was an ineffectual body and was reduced to the themselves may be subjected to the impeachment power of
function of a special fiscal. The whole purpose of our proposal is Congress.
precisely to separate those functions and to produce a vehicle that
will give true meaning to the concept of Ombudsman. Therefore, In these lights, the appeal, if any, of the mutual protection
we regret that we cannot accept the proposition. [52] argument becomes distinctly implausible. At the same time, the
Court remains consistent with its established rulings - that the
The statements made by Commissioner Monsod emphasized a independence granted to the Constitutional Commissions bars
very logical principle: the Executive power to remove and any undue interference from either the Executive or Congress –
discipline key officials of the Office of the Ombudsman, or and is in full accord with constitutional intent.
to exercise any power over them, would result in an absurd
situation wherein the Office of the Ombudsman is given the e. Congress’ power determines the
duty to adjudicate on the integrity and competence of the manner and causes for the removal
very persons who can remove or suspend its of non-impeachable officers is not
members. Equally relevant is the impression that would be given a carte blanch authority
to the public if the rule were otherwise. A complainant with a
grievance against a high-ranking official of the Executive, who Under Section 2, Article XI of the 1987 Constitution, [53] Congress
appears to enjoy the President’s favor, would be discouraged from is empowered to determine the modes of removal from office of
approaching the Ombudsman with his complaint; the all public officers and employees except the President, the Vice -
complainant’s impression (even if misplaced), that the President, the Members of the Supreme Court, the Members of
Ombudsman would be susceptible to political pressure, cannot be the Constitutional Commissions, and the Ombudsman, who are
avoided. To be sure, such an impression would erode the all impeachable officials.
40 | P a g e LAW O N P U B LI C O FFI C ER S

The intent of the framers of the Constitution in providing that
“[a]ll other public officers and employees may be removed from
office as provided by law, but not by impeachment” in the second
sentence of Section 2, Article XI is to prevent Congress from
extending the more stringent rule of “removal only by
impeachment” to favored public officers. [54] Understandably so,
impeachment is the most difficult and cumbersome mode of
removing a public officer from office. It is, by its nature, a sui
generis politico-legal process [55] that signals the need for a judicious
and careful handling as shown by the process required to initiate
the proceeding;[56] the one-year limitation or bar for its
initiation;[57] the limited grounds for impeachment; [58] the defined
instrumentality given the power to try impeachment cases; [59] and
the number of votes required for a finding of guilt. [60] All these
argue against the extension of this removal mechanism beyond
those mentioned in the Constitution.
On the practical side, our nation has witnessed the complication s
and problems an impeachment proceeding entails, thus justifying
its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few,
some of the negative practical effects of impeachment are: it stalls
legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive
of the nation.[61] Thus, in a cost-benefit analysis of adopting
impeachment as a mechanism, limiting Congress’ power to
otherwise legislate on the matter is far more advantageous to the
country.
It is in these lights that the second sentence in Section 2, Article
XI of the 1987 Constitution should be read. Contrary to the
implied view of the minority, in no way can this provision be
regarded as blanket authority for Congress to provide for any
ground of removal it deems fit. While the manner and cause of
removal are left to congressional determination, this must still be
consistent with constitutional guarantees and principles, namely: the right to
procedural and substantive due process; the constitutional guarantee of security
of tenure; the principle of separation of powers; and the principle of checks and
balances.[62]
In short, the authority granted by the Constitution to Congress to
provide for the manner and cause of removal of all other public
officers and employees does not mean that Congress can ignore
the basic principles and precepts established by the Constitution.
In the same manner, the congressional determination of the
identity of the disciplinary authority is not a blanket authority for
41 | P a g e
Congress to repose it on whomsoever Congress chooses without
running afoul of the independence enjoyed by the Office of the
Ombudsman and without disrupting the delicate check and
balance mechanism under the Constitution. Properly viewed
from this perspective, the core constitutional principle of
independence is observed and any possible absurdity resulting
from a contrary interpretation is avoided. In other words, while
the Constitution itself vested Congress with the power to
determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with
the core constitutional principle of independence of the Office of the
Ombudsman. Our observation in Macalintal v. Comelec [63] is apt:
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional provisions.
One such provision is Section 1 of Article IX-A of the 1987
Constitution ordaining that constitutional commissions such as
the COMELEC shall be “independent.”
While one may argue that the grounds for impeachment under
Section 8(2) of RA No. 6770 is intended as a measure of
protection for the Deputy Ombudsman and Special Prosecutor –
since these grounds are not intended to cover all kinds of official
wrongdoing and plain errors of judgment - this argument seriously
overlooks the erosion of the independence of the Office of the
Ombudsman that it creates. The mere fact that a statutorily-
created sword of Damocles hangs over the Deputy Ombudsman’s
head, by itself, opens up all the channels for external pressures
and influence of officialdom and partisan politics. The fear of
external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting
independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do
not conform to the high standard required in determining whether
a Deputy Ombudsman committed an impeachable offense) and
that the President’s power of removal is limited to specified
grounds are dismally inadequate when balanced with the
constitutional principle of independence. The mere filing of an
administrative case against the Deputy Ombudsman and
the Special Prosecutor before the OP can already result in
their suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the
Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the
President, can be reduced to the very same ineffective Office of
the Ombudsman that the framers had foreseen and carefully tried
to avoid by making these offices independent constitutional
LAW O N P U B LI C O FFI C ER S
bodies. draft order for the final approval of the
Ombudsman.[70]
At any rate, even assuming that the OP has disciplinary authority
over the Deputy Ombudsman, its decision finding Gonzales
guilty of Gross Neglect of Duty and Grave Misconduct Clearly, when Mendoza hijacked the tourist bus on Augu st 23,
constituting betrayal of public trust is patently erroneous. The OP’s 2010, the records of the case were already pending before
decision perfectly illustrates why the requirement of Ombudsman Gutierrez.
impeachment-grounds in Section 8(2) of RA No. 6770 cannot be
considered, even at a minimum, a measure of protection of the Gross negligence refers to negligence characteriz ed by the want
independence of the Office of the Ombudsman. of even the slightest care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but willfully and
C. The Deputy Ombudsman: The Dismissal Issue intentionally, with a conscious indifference to consequen ces
insofar as other persons may be affected. In the case of public
a. The Office of the President’s officials, there is gross negligence when a breach of duty is flagrant
finding of gross negligence has and palpable.[71]
no legal and factual leg to
stand on Gonzales cannot be guilty of gross neglect of duty and/or
inefficiency since he acted on the case forwarded to him within
The OP’s decision found Gonzales guilty of Gross Neglect of nine days. In finding Gonzales guilty, the OP[72] relied on
Duty and of Grave Misconduct. The assailed Decision of the OP Section 8, Rule III of Administrative Order No. 7 (or the Rules of
reads: Procedure of the Office of the Ombudsman, series of 1990, as
amended) in ruling that Gonzales should have acted on
Upon consideration of the First Report, the evidence and Mendoza’s Motion for Reconsideration within five days:
allegations of respondent Deputy Ombudsman himself, and other
documentary evidence gathered, this Office finds that the Section 8. Motion for reconsideration or reinvestigation:
inordinate and unjustified delay in the resolution of Captain Grounds – Whenever allowable, a motion for reconsideration or
Mendoza’s Motion for Reconsideration timely filed on 5 reinvestigation may only be entertained if filed within ten (10) days
November 2009 xxx amounted to gross neglect of duty and/or from receipt of the decision or order by the party on the basis of
inefficiency in the performance of official duty. [64] any of the following grounds:

b. No gross neglect of duty or inefficiency a) New evidence had been discovered which materially affects the
order, directive or decision;
Let us again briefly recall the facts.
b) Grave errors of facts or laws or serious irregularities have been
1. November 5, 2009 - Mendoza filed a Motion for committed prejudicial to the interest of the movant.
Reconsideration of the decision of the Ombudsman, [65]
which was followed by a Supplement to the Motion for Only one motion for reconsideration or reinvestigation shall be
Reconsideration;[66] allowed, and the Hearing Officer shall resolve the same within
2. December 14, 2009[67] - GIPO Garcia, who was assigned five (5) days from the date of submission for
to review these motions and make his recommendation resolution. [emphasis and underscore ours]
for the appropriate action, received the records of the
case; Even if we consider this provision to be mandatory, the period it
3. April 5, 2010 – GIPO Garcia released a draft order to be requires cannot apply to Gonzales since he is a Deputy
reviewed by his immediate superior, Dir. Cecilio; [68] Ombudsman whose obligation is to review the case; he is not
4. April 27, 2010 – Dir. Cecilio signed and forwarded to simply a Hearing Officer tasked with the initial resolution of the
Gonzales this draft order; [69] motion. In Section 6 of Administrative Order No. 7 on the
5. May 6, 2010 (or nine days after the records were resolution of the case and submission of the proposed decision,
forwarded to Gonzales) – Gonzales endorsed the
42 | P a g e LAW O N P U B LI C O FFI C ER S
the period for resolving the case does not cover the period within The facts do not show that Gonzales’ subordinates had in any way
which it should be reviewed: been grossly negligent in their work. While GIPO Garcia reviewed
the case and drafted the order for more than three months, it is
Section 6. Rendition of decision. – Not later than thirty (30) days noteworthy that he had not drafted the initial decision and,
after the case is declared submitted for resolution, the Hearing therefore, had to review the case for the first time. [77] Even the
Officer shall submit a proposed decision containing his findings Ombudsman herself could not be faulted for acting on a case
and recommendation for the approval of the Ombudsman. Said within four months, given the amount of cases that her office
proposed decision shall be reviewed by the Directors, handles.
Assistant Ombudsmen and Deputy Ombudsmen
concerned. With respect to low ranking public officials, the The point is that these are not inordinately long periods for the
Deputy Ombudsman concerned shall be the approving work involved: examination of the records, research on the
authority. Upon approval, copies thereof shall be served upon pertinent laws and jurisprudence, and exercise of legal judgment
the parties and the head of the office or agency of which the and discretion. If this Court rules that these periods per se
respondent is an official or employee for his information and constitute gross neglect of duty, the Ombudsman’s constitutional
compliance with the appropriate directive contained mandate to prosecute all the erring officials of this country would
therein. [italics and emphases supplied] be subjected to an unreasonable and overwhelming
constraint. Similarly, if the Court rules that these periods per se
Thus, the OP’s ruling that Gonzales had been grossly negligent constitute gross neglect of duty, then we must be prepared to
for taking nine days, instead of five days, to review a case was reconcile this with the established concept of the right of speedy
totally baseless. disposition of cases – something the Court may be hard put to
justify.
c. No actionable failure to supervise subordinates
d. No undue interest
The OP’s claims that Gonzales could have supervised his
subordinates to promptly act on Mendoza’s motion and apprised The OP also found Gonzales guilty of showing undue interest in
the Tanodbayan of the urgency of resolving the same are similarly Mendoza’s case by having the case endorsed to the Office of the
groundless. Ombudsman and by resolving it against Mendoza on the basis of
the unverified complaint-affidavit of the alleged victim, Kalaw.
The Office of the Ombudsman is not a corner office in our
bureaucracy. It handles numerous cases that involve the potential The fact that Gonzales had Mendoza’s case endorsed to his office
loss of employment of many other public employees. We cannot lies within his mandate, even if it were based merely on the request
conclusively state, as the OP appears to suggest, that Mendoza’s of the alleged victim’s father. The Constitution empowers the
case should have been prioritized over other similar cases. The Ombudsman and her Deputies to act promptly on complaints
Court has already taken judicial notice of the steady stream of filed in any form or manner against any public official or employee
cases reaching the Office of the Ombudsman. [73] This of the government. [78] This provision is echoed by Section 13 of
consideration certainly militates against the OSG’s observation RA No. 6770,[79] and by Section 3, Rule III of Administrative
that there was “a grossly inordinate and inexcusable delay” [74] on Order No. 7, series of 1990, as amended. [80]
the part of Gonzales.
Moreover, Gonzales and his subordinates did not resolve the
Equally important, the constitutional guarantee of “speedy complaint only on the basis of the unverified affidavit of
disposition of cases” before, among others, quasi-judicial Kalaw. Based on the prosecution officer’s recommendations, the
bodies,[75] like the Office of the Ombudsman, is itself a relative finding of guilt on the part of Mendoza, et al. was based on their
concept.[76] Thus, the delay, if any, must be measured in this admissions as well. Mendoza, et al. admitted that they had arrested
objective constitutional sense. Unfortunately, because of the very Kalaw based on two traffic violations and allowed him to stay the
statutory grounds relied upon by the OP in dismissing Gonzales, whole night until the following morning in the police
the political and, perhaps, “practical” considerations got the better precinct. The next morning, Kalaw was allowed to leave the
of what is legal and constitutional. precinct despite his failure to show a valid license and based
merely on his promise to return with the proper
43 | P a g e LAW O N P U B LI C O FFI C ER S
documents.[81] These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending
Kalaw, since the proper procedure for the apprehension of traffic
violators would be to give them a ticket and to file a case, when
appropriate.[82]
Lastly, we cannot deduce undue interest simply because Gonzales’
decision differs from the decision of the PNP-IAS (which
dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it
should always concur with the decisions of other judicial or quasi-
judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has
specifically granted to this office and would nullify the very
purpose for which it was created .
e. Penalty of dismissal totally
incommensurate with established
facts
Given the lack of factual basis for the charges against Gonzales,
the penalty of removal imposed by the OP necessarily suffers
grave infirmity. Basic strictures of fair play dictate that we can
only be held liable for our own misdeeds; we can be made to
account only for lapses in our responsibilities. It is notable
that of all the officers, it was Gonzales who took the least
time — nine days — followed by Cecilio, who took 21 days;
Garcia — the writer of the draft — took less than four
months, and the Ombudsman, less than four months until
the kidnapping incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently
wrong. This conclusion, however, does not preclude the
Ombudsman from looking into any other possible administrative
liability of Gonzales under existing Civil Service laws, rules and
regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the
Ombudsman. The existing Tanodbayan at the time[83] became the
Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the
Ombudsman under the 1987 Constitution does not textually
include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No.
6770 should equally apply to the Special Prosecutor on the basis
44 | P a g e
of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.
Under the 1973 Constitution, [84] the legislature was mandated to
create the Office of the Ombudsman, known as the Tanodbayan,
with investigative and prosecutorial powers. Accordingly, on June
11, 1978, President Ferdinand Marcos enacted PD No. 1487. [85]
Under PD No. 1486,[86] however, the “Chief Special Prosecutor”
(CSP) was given the “exclusive authority” to conduct preliminary
investigation and to prosecute cases that are within the jurisdiction
of the Sandiganbayan. [87] PD No. 1486 expressly gave the
Secretary of Justice the power of control and supervision
over the Special Prosecutor.[88] Consistent with this grant of
power, the law also authorized the Secretary of Justice to appoint
or detail to the Office of the CSP “any officer or employee of
Department of Justice or any Bureau or Office under the
executive supervision thereof” to assist the Office of the CSP.
In December 1978, PD No. 1607[89] practically gave back to the
Tanodbayan the powers taken away from it by the Office of the
CSP. The law “created in the Office of the Tanodbayan an Office
of the Chief Special Prosecutor” under the Tanodbayan’s
control,[90] with the exclusive authority to conduct preliminary
investigation and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also empowered
the Tanodbayan to appoint Special Investigators and subordinate
personnel and/or to detail to the Office of the CSP any public
officer or employees who “shall be under the supervision and
control of the Chief Special Prosecutor.” [91] In 1979, PD No.
1630 further amended the earlier decrees by transferring the
powers previously vested in the Special Prosecutor directly
to the Tanodbayan himself.[92]
This was the state of the law at the time the 1987 Constitution was
ratified. Under the 1987 Constitution, an “independent Office of
the Ombudsman” is created. [93] The existing Tanodbayan is
made the Office of the Special Prosecutor, “who shall
continue to function and exercise its powers as now[94] or hereafter
may be provided by law.” [95]
Other than the Ombudsman’s Deputies, the Ombudsman shall
appoint all other officials and employees of the Office of the
Ombudsman.[96] Section 13(8), Article XI of the 1987
Constitution provides that the Ombudsman may exercise “such
other powers or perform such functions or duties as may be provided by law.”
Pursuant to this constitutional command, Congress enacted RA
No. 6770 to provide for the functional and structural organization
LAW O N P U B LI C O FFI C ER S
of the Office of the Ombudsman and the extent of its disciplinary
authority.
In terms of composition, Section 3 of RA No. 6770 defines the
composition of the Office of the Ombudsman, including in this
Office not only the offices of the several Deputy Ombudsmen
but the Office of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority to appoint
the Ombudsman, his Deputies and the Special Prosecutor, from a list
of nominees prepared by the Judicial and Bar Council. In case of
vacancy in these positions, the law requires that the vacancy be
filled within three (3) months from occurrence. [97]
The law also imposes on the Special Prosecutor the same
qualifications it imposes on the Ombudsman himself/herself and
his/her deputies. [98] Their terms of office,[99] prohibitions and
qualifications,[100] rank and salary are likewise the same. [101] The
requirement on disclosure[102] is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case of vacancy in
the Office of the Ombudsman, the Overall Deputy cannot
assume the role of Acting Ombudsman; the President may
designate any of the Deputies or the Special Prosecutor as Acting
Ombudsman.[103] The power of the Ombudsman and his or her
deputies to require other government agencies to render
assistance to the Office of the Ombudsman is likewise enjoyed by
the Special Prosecutor.[104]
Given this legislative history, the present overall legal structure of
the Office of the Ombudsman, both under the 1987 Constitution
and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority
of the OP and yet expose the Special Prosecutor to the same ills
that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor as
a necessary adjunct of the Ombudsman, aside from his or her
deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by
granting the Ombudsman control and supervision over that
office.[105] This power of control and supervision includes vesting
the Office of the Ombudsman with the power to assign duties to
the Special Prosecutor as he/she may deem fit. Thus, by
constitutional design, the Special Prosecutor is by no means
an ordinary subordinate but one who effectively and directly
aids the Ombudsman in the exercise of his/her duties,
which include investigation and prosecution of officials in
the Executive Department.
45 | P a g e
Under Section 11(4) of RA No. 6770, the Special Prosecuto r
handles the prosecution of criminal cases within the jurisdiction
of the Sandiganbayan and this prosecutorial authority includes
high-ranking executive officials. For emphasis, subjecting the
Special Prosecutor to disciplinary and removal powers of the
President, whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special Prosecutor, would
seriously place the independence of the Office of the
Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly
made part of the composition of the Office of the Ombudsman,
the role it performs as an organic component of that Office
militates against a differential treatment between the
Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the
Ombudsman must be equally true, not only for her Deputies
but, also for other lesser officials of that Office who act
directly as agents of the Ombudsman herself in the
performance of her duties.
In Acop v. Office of the Ombudsman,[106] the Court was confronted
with an argument that, at bottom, the Office of the Special
Prosecutor is not a subordinate agency of the Office of the
Ombudsman and is, in fact, separate and distinct from the
latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's
statement as authority to advocate that the intent of the
framers of the 1987 Constitution was to place the Office of
the Special Prosecutor under the Office of the President. xxx
In the second place, Section 7 of Article XI expressly provides
that the then existing Tanodbayan, to be henceforth known as the
Office of the Special Prosecutor, "shall continue to function and
exercise its powers as now or hereafter may be provided by law, excep t
those conferred on the Office of the Ombudsman created under
this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent
amendatory legislation. It follows then that Congress may remove
any of the Tanodbayan's/Special Prosecutor's powers under P.D.
N0. 1630 or grant it other powers, except those powers conferred
by the Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that
by express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may "exercise such other powers
LAW O N P U B LI C O FFI C ER S
or perform functions or duties as may be provided by law," it is
indubitable then that Congress has the power to place the Office
of the Special Prosecutor under the Office of the
Ombudsman.[107]
Thus, under the present Constitution, there is every reason to treat
the Special Prosecutor to be at par with the Ombudsman’s
deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence
under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7,[108] the
Court resolved to reverse its September 4, 2012 Decision insofar
as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by
granting disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the
Ombudsman.
However, by another vote of 8-7,[109] the Court resolved to
maintain the validity of Section 8(2) of RA No. 6770 insofar
as Sulit is concerned. The Court did not consider the Office of
the Special Prosecutor to be constitutionally within the Office of
the Ombudsman and is, hence, not entitled to the independence
the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to
declare Section 8(2) UNCONSTITUTIONAL. This ruling
renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without
prejudice to the power of the Ombudsman to conduct an
administrative investigation, if warranted, into the possible
administrative liability of Deputy Ombudsman Emilio Gonzales
III under pertinent Civil Service laws, rules and regulations.
SO ORDERED.
46 | P a g e
G.R. No. 85815, May 19, 1989
ELENO T. REGIDOR, JR. ANICETO T. SIETE,
CAMILO B. ZAPATOS& RODULFO ENRIQUEZ ,
PETITIONERS, VS. GOV. WILLIAM CHIONGBIA N,
VICE GOV. FLORENCIO GARCIA, SANGGUNIA NG
PANLALAWIGAN, MEMBERS MARIVIC SAGRADO,
MORPHEUS AGOT, CONSTANCIO BALAIS, ALEGRIA
CARIÑO, ERNESTO IRA, PACITA YAP, JULIO TIU
AND SANGGGUNIANG PANGLUNSOD, ROBERT O.
TACLOB, RESPONDENTS .
D E C I S I O N GRIÑO-AQUINO, J.:
This petition for prohibition with a prayer for the issuance of
temporary restraining order or writ of preliminary injunction was
filed by the petitioners who are the duly elected city officials of
Tangub City in Misamis Occidental. Eleno T. Regidor was elected
City Mayor of Tangub City, the other petitioners, Aniceto T. Siete,
Camilo B. Zapatos and Rodulfo Enriquez, are respectively the
Vice-Mayor and members of the Sangguniang Panglunsod of
Tangub City, who were elected in the January 18, 1988 local
elections, were proclaimed in due course, and assumed office.
On November 3, 1988, respondents William Chiongbian and
Florencio Garcia, Marivic Sagrado, Morpheus Agot, Constancio
Balais, Alegria Cariño, Ernesto Ira, Pacita Yap, and Julio Tiu, who
are respectively the Provincial Governor, the Vice-Governor, and
members of the Sangguniang Panlalawigan, approved Resolution
No. 340-88 recommending the suspension of the petitioners who
failed to appear on November 18, 1988 at the hearing of a
complaint for unspecified misconduct which respondent Robert
O. Taclob filed against them in the office of the Governor and
the Sangguniang Panlalawigan.
Pursuant to that resolution, Governor William Chiongbian issued
on November 24, 1988 an Order of Preventive Suspension,
suspending the petitioners "from their elective positions as City
Mayor, City Vice-Mayor and Sangguniang Panglunsod members
of Tangub City for a period of 60 days effective November 25,
1988" and ordering them to "cease and desist from performing
the functions and duties" of their respective offices (Annex D, p.
10, Rollo).
LAW O N P U B LI C O FFI C ER S
On the same day, Governor Chiongbian appointed Taclob, a
member of the Sangguniang Panglunsod of Tangub City, as
Officer-in-Charge of Tangub City in lieu of Mayor Eleno T.
Regidor (Annex E, p. 11, Rollo). Taclob belongs to the governor's
political faction while Regidor and the other petitioner's belong to
the rival faction of Alfonso Tan, the defeated opponent of
respondent Chiongbian for the governorship of Misamis
Occidental.
The petition alleges that respondents Governor Chiongbian and
the Sangguniang Panlalawigan acted without authority, and
contrary to law, in issuing the Order of Preventive Suspension
against the petitioners because under Section 63 of the Local
Government Code, a provincial or city official may be
preventively suspended by the Minister of Local Government, not
by the Provincial Governor.
Upon receipt of the petition, this Court issued a temporary
restraining order commanding the respondents to "cease and
desist from implementing or enforcing Resolution No. 340-88
dated November 23, 1988 and Preventive Suspension Order
dated November 24, 1988, and enjoining respondent Robert O.
Taclob from assuming the position of OIC Mayor of Tangub
City" (pp. 14-16, Rollo).
In their comment on the petition, the respondents justified the
suspension of the petitioners as a valid exercise of the Provincial
Governor's power of general supervision over a component city
(Par. 6.4, Section 1, Rule 4 of the Implementing Rules &
Regulations of the Local Government Code), and that it was done
“in pursuance to (sic) the provisions of the Local Government
Code and the Rules & Regulations implementing said law."
However, the pertinent provisions of the Local Government
Code and the Implementing Rules and Regulations thereof do not
sustain the respondents' contention in this case.
Section 61 of the Local Government Code provides that
complaints against elective provincial or city officials should be
verified and should be filed before the Minister of Local
Government.
Section 63 provides that the Minister of Local Government may
impose a preventive suspension against the accused elective
provincial or city official, thus:
“Sec. 63. Preventive Suspension. - (1) Preventive suspension may be imposed
by the Minister of Local Government if the respondent is a provincial or city
47 | P a g e
official, by the provincial governor if the respondent is an elective municipal
official, or by the city or municipal mayor if the respondent is an elective
barangay official.
"(2) Preventive suspension may be imposed at any time after the issues are
joined, when there is reasonable ground to believe that the respondent has
committed the act or acts complained of, when the evidence of culpability is
strong, when the gravity of the offense so warrants, when the continuance in
office of the respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence. In all cases, preventive
suspension shall not extend beyond sixty days after the start of said suspension.
"(3) At the expiration of sixty days, the suspended official shall be deemed
reinstated in office without prejudice to the continuation of the proceedings
against him until its termination. However, if the delay in the proceedings of
the case is due to his fault, neglect or request, the time of the delay shall not be
counted in computing the time of suspension."
Section 7 of the Implementing Rules & Regulations reads as
follows:
"Sec. 7. Preventive Suspension. - If from the answer of the respondent, and
the complaint filed, the Minister/Sanggunian concerned find and determine
that there is reasonable ground to believe that he has committed the act or acts
complained of, when the evidence of guilt is strong, when, the gravity of the
offense so warrants, or the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records
and other evidences, the Minister of Local Government, provincial governor,
or municipal mayor as the case may be, may preventively suspend an elective
provincial, City, municipal or barangay official, respectively; Provided, That
the preventive suspension shall not exceed sixty (60) days after the start of
said suspension."
There is no merit in the respondents' contention that the order of
preventive suspension issued by Governor Chiongbian was within
the authority granted in Section 7, Rule 18 of the Implementing
Rules & Regulations to "the Minister of Local Government,
provincial governor, or municipal mayor, as the case may be," to
"preventively suspend an elective provincial, city, municipal or
barangay official, respectively."
Respondents misread and misconstrued Section 7, Rule 18 of the
Implementing Rules & Regulations of the Local Government
Code. The rule should be read in juxtaposition with Section 63 of
the Code which provides that "preventive suspension may be
imposed by the Minister of Local Government if the respondent
is a provincial or city official, by the provincial governor if the
respondent is an elective municipal official, or by the city or
municipal mayor if the respondent is an elective barangay official."
LAW O N P U B LI C O FFI C ER S
In light of Section 63 of the Code, Section 7 of Rule 18 of the
Implementing Rules& Regulations should be interpreted to mean
that the Minister of Local Government may preventively suspend
an elective provincial or city official, the Provincial Governor may
preventively suspend an elective municipal official, and the city or
municipal mayor may preventively suspend an elective barangay
official. This is as it should be for complaints against provincial
or city officials are supposed to be filed with the Minister (now
Secretary) of Local Government, hence, it is he (not the provincial
governor) who would know whether or not the charges are
serious enough to warrant the suspension of the accused elective
provincial or city official.
No rule or regulation issued by the Secretary of Local
Government may alter, amend, or contravene a provision of the
Local Government Code. The implementing rules should
conform, not clash, with the law that they implement, for a
regulation which operates to create a rule out of harmony with the
statute is a nullity (Commissioner of Internal Revenue vs. Vda. de
Prieto, L-13912, September 30, 1950). A rule or regulation that
was issued to implement a law may not go beyond the terms and
provisions of the law (People vs. Lim, 108 Phil. 1091).
In this case, the implementing rule (Sec. 7, Rule 18) does not in
fact clash with the law (Sec. 63, Local Government Code) - the
draftsmanship is not perfect but the use of the phrase "as the case
may be" and the term “respectively" indicates a delineation of the
power to suspend.
As the complaint or complaints against the petitioners were filed
with the Office of the Provincial Governor, not with the Minister
of Local Government as required in Section 61 of the Local
Government Code, and, as the preventive suspension of the
petitioners was ordered by the Provincial Governor, not by the
Minister of Local Government; the notice of hearing, subpoena,
and order of preventive suspension issued by the respondents
governor and members of the Sangguniang Panlalawigan against
the petitioners are hereby declared null and void. (Local
Government Code [BP 337], Title Two, Chapter 4, Sec. 63 [1].)
The respondents are without authority to investigate the
petitioners, and the latter may not be compelled to attend the
hearings. Their refusal to answer the charges against them was
justified.
WHEREFORE, the petition for certiorari is granted. The
Resolution No. 340-88 of the Sangguniang Panglunsod, and the
order of preventive suspension issued by respondent Governor
William Chiongbian, the appointment of Robert O. Taclob as
48 | P a g e
OIC Mayor of Tangub City, the notices of hearing and subpoenas
issued to the petitioners by the respondents are all annulled and
set aside. The temporary restraining order which We issued on
December 7, 1988, is hereby made permanent. SO ORDERED.
G.R. No. 154098, July 27, 2005
JOSE C. MIRANDA, PETITIONER, VS. HON.
SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN,
SEC. JOSE D. LINA, JR., IN HIS CAPACITY AS
SECRETARY OF THE DILG, AND FAUSTINO DY, JR.
IN HIS CAPACITY AS GOVERNOR OF THE
PROVINCE OF ISABELA, RESPONDENTS .
DECISION PUNO, J.:
First, the facts.
The Ombudsman placed petitioner Jose C. Miranda (Mayor
Miranda) then the mayor of Santiago City, Isabela, under
preventive suspension for six months from 25 July 1997 to 25
January 1998 for alleged violations of Republic Act No. 6713,
otherwise known as the Code of Conduct and Ethical Standards
for Public Officials and Employees. [1] Subsequently, then Vice
Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a
Complaint with the Office of the Ombudsman (Ombudsman) on
1 December 1997 which was docketed as OMB-1-97-2312.[2] In
the said Complaint, Vice Mayor Navarro alleged that Mayor
Miranda committed the following acts on 24 November 1997
despite the continuing effectivity of the Ombudsman's preventive
suspension order: (a) issued a memorandum addressed to Navarro
advising her that he was assuming his position as City Mayor; [3] (b)
gave directives to the heads of offices and other employees; [4] (c)
issued Office Order No. 11-021 which authorized certain persons
to start work;[5] and (d) insisted on performing the functions and
duties of Mayor despite Navarrro's requests to desist from doing
so without a valid court order and in spite of the order of
Department of Interior and Local Government (DILG)
Undersecretary Manuel Sanchez directing him to cease from
reassuming the position. [6] Vice Mayor Navarro contended that
Mayor Miranda committed the felony of usurpation of authority
or official functions under Article 177 of the Revised Penal Code
In his counter-affidavit, Mayor Miranda asserted that he
reassumed office on the advice of his lawyer and in good faith. [8]
He contended that under Section 63(b) of the Local Government
Code, local elective officials could not be preventively suspended
for a period beyond 60 days. [9] He also averred that, on the day he
reassumed office, he received a memorandum from DILG
LAW O N P U B LI C O FFI C ER S
Undersecretary Manuel Sanchez instructing him to vacate his
office and he immediately complied with the same. [10] Notably,
Mayor Miranda's counter- affidavit also stated that he left the
mayoralty post after "coercion" by the Philippine National
Police.[11]
On 28 October 1998, the Ombudsman filed with the
Sandiganbayan an Information against Mayor Miranda for
violation of Article 177 of the RPC, penalizing usurpation of
authority. On 20 November 1998, the Sandiganbayan ordered the
Office of Special Prosecutor to conduct a reinvestigation of the
case in light of the manifestations made by prosecution and
defense counsel.[12] After reinvestigation, Special Prosecutio n
Officer Rodrigo V. Coquia (Coquia) recommended the dismissal
of the case in a Resolution dated 14 September 2000. [13] Coquia
held that Miranda reassumed his office in "good faith" and on
"mistake of fact" due to the "difficult questions of law"
involved.[14]
Then Ombudsman Aniano A. Desierto (Ombudsman Desierto)
referred Coquia's resolution to the Ombudsman's Chief Legal
Counsel for review. The Chief Legal Counsel disagreed with
Coquia's findings and recommended the filing of the case against
Mayor Miranda.[15] He pointed out that Mayor Miranda's
invocation of good faith was belied by the fact that he received a
memorandum from the DILG informing him that his view of the
preventive suspension period was untenable and that he should
serve out its remaining period. [16] He further noted that Miranda
violated the orders of both the Ombudsman and the DILG. [17]
Ombudsman Desierto adopted the Chief Legal Counsel's
recommendation,[18] and the case was re-raffled to Special
Prosecution Officer Evelyn T. Lucero. Subsequently, the
prosecution filed an amended Information with the
Sandiganbayan,[19] to which the petitioner interposed a
negative plea.[20]
On 28 November 2001, the prosecution filed before the
Sandiganbayan a motion to suspend Mayor Miranda
pendente lite based on Section 13 of Republic Act No. 3019
(R.A. No. 3019), otherwise known as the Anti-Graft and
Corrupt Practices Act.[21] Miranda opposed the motion on the
ground that the offense of usurpation of authority or official
functions under Article 177 of the RPC is not embraced by
Section 13 of R.A. No. 3019 which only contemplates offenses
enumerated under R.A. No. 3019, Title VII, Book II of the RPC
or which involve "fraud upon government or public funds or
property."[22]
49 | P a g e
In a Resolution dated 4 February 2002, the Sandiganbayan
preventively suspended Mayor Miranda from office for 90
days.[23] The anti-graft court held that a violation of Article 177
of the RPC involves fraud "which in a general sense is deemed to
comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or
equitable duty, trust or confidence justly reposed, resulting in
damage to another or by which an undue and unconscious
advantage is taken of another."[24] It further ruled that Miranda's
act fell within the catch-all provision "x x x or for any offense
involving fraud upon government."[25] Miranda's motion for
reconsideration was denied in the Sandiganbayan's Resolution
dated 17 June 2002.[26] Hence, the present petition assailing
the Sandiganbayan's orders of preventive suspension. The
petitioner contends that the Sandiganbayan gravely abused its
discretion when it preventively suspended him on a ground not
authorized by law and raises the following issues: (1) whether
Section 13 of R.A. No. 3019 applies only to fraudulent acts
involving public funds or property; and (2) whether the crime of
usurpation of authority or official functions involves "fraud upon
government or public funds or property" found in Section 13 of
R.A. No. 3019.
We rule in the negative.
First. Section 13 of R.A. No. 3019, as amended, provides:
Section 13. Suspension and loss of benefits. - Any incumbent public
officer against whom any criminal prosecution under a valid
information under this Act or under Title 7, Book II of the
Revised Penal Code or for any offense involving fraud upon
government or public funds or property whether as a simple or as
a complex offense and in whatever stage of execution and mode
of participation, is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is acquitted ,
he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against
him.
In the event that such convicted officer, who may have alread y
been separated from the service, has already received such
benefits he shall be liable to restitute the same to the Government.
The Sandiganbayan properly construed Section 13 of R.A. No.
3019 as covering two types of offenses: (1) any offense involving
fraud on the government; and (2) any offense involving public
funds or property. Contrary to the submission of the petitioner,
nothing in R.A. No. 3019 evinces any legislative intent to limit
LAW O N P U B LI C O FFI C ER S
Section 13 only to acts involving fraud on public funds or
property. The phrase "any offense involving fraud upon
government or public funds or property" is clear and categorical.
To limit the use of "government" as an adjective that qualifies
"funds" is baseless. The word "public" precedes "funds" and
distinguishes the same from private funds. To qualify further
"public funds" as "government" funds, as petitioner claims is the
law's intent, is plainly superfluous. We are bound by the rule that
a statute should be construed reasonably with reference to its
controlling purpose and its provisions should not be given a
meaning that is inconsistent with its scope and object. R.A. No.
3019, commonly known as the Anti-Graft and Corrupt Practices
Act, should be read to protect the State from fraud by its own
officials.
Second. We further hold that the Sandiganbayan did not gravely
abuse its discretion when it ruled that petitioner's act fell within
the catch-all provision "x x x or for any offense involving fraud
upon government. The term "fraud" is defined, viz.:
An instance or an act of trickery or deceit esp. when involving
misrepresentation: an act of deluding [27]
It is obvious to the eyes that the phrase "fraud upon government"
means "any instance or act of trickery or deceit against the
government." It cannot be read restrictively so as to be equivalent
to malversation of funds as this is covered by the preceding phrase
"any offense involving . . . public funds or property." It ought to
follow that "fraud upon government" was committed when the
petitioner allegedly assumed the duties and performed acts
pertaining to the Office of the Mayor under pretense of official
position.
The dissent opines that fraud upon government is not necessarily
an essential element of the crime of usurpation of authority. The
submission may be correct as a general proposition but general
propositions hardly decide a case. In the case at bar, the issue is
whether the alleged acts of usurpation of authority committed by
the petitioner involve "fraud upon government or public funds or
property" as the term is understood under Section 13 of R.A. No.
3019. In ruling in the affirmative, the Sandiganbayan held:
Let us take a look at the acts complained of as alleged in the
Amended Information dated July 27, 2001:
x x x the above-named accused, a public officer, being then the
elected City Mayor of Santiago City, while under preventive
suspension did then and there, willfully, unlawfully and knowingly
and under pretense of official position, assume the duties and
functions of the Office of the Mayor, issue directives and
memoranda, and appoint certain persons to various positions in
50 | P a g e
the City Government and perform acts pertaining to an office to
which he knowingly was deprived of.
Moreover, in private complainant Amelita S. Navarro's Affidavit
of Complaint dated November 26, 1997, she said: "x x x, he
proceeded to his office and started giving directives to the various
heads of office and other employees, the unexpected acts of
respondents had caused serious disruptions in the day to day
affairs of the city government."
Accused's acts therefore in assuming the duties and function of
the Office of the Mayor despite his suspension from said office
resulted to a clear disruption of office and worst, a chaotic
situation in the affairs of the government as the employees, as well
as the public, suffered confusion as to who is the head of the
Office. This actuation of herein accused constitutes fraud which
in general sense is deemed to comprise anything calculated to
deceive, including all acts, omissions, and concealment involving
a breach of legal or equitable duty, trust or confidence justly
reposed, resulting in damage to another or by which an undue and
unconscious advantage is taken of another (37 Am. Jur. 2d 19 at
Sec. 19). Hence, the act complained of against accused herein falls
in the catchall provision "x x x or for any offense involving fraud
upon government x x x."
Moreover, the firmly entrenched doctrine which was held by the
Highest Tribunal in a long line of cases is that "x x x under Sectio n
13 of the Anti-Graft and Corrupt Practices Law, the suspension
of a public officer is mandatory after a determination has been
made of the validity of the Information x x x." In fact, as early as
1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the
Honorable Supreme Court speaking thru Justice Relova said:
Once the information is found to be sufficient in form and
substance, then the Court must issue the order of suspension as a
matter of course. There are no ifs and buts about it. x x x
After a perusal of the amended information herein, it clearly
appeared that the same was apparently valid for it conforms to the
requirements laid down under Section 6[,] Rule 110 of the Rules
of Court. In fact, accused herein interposed a negative plea
thereto thereby tacitly acquiescing to the validity of the said
Information.
There being no valid ground raised by the accused sufficien t
enough to warrant denial of the prayer of the prosecution in its
Motion to Suspend Accused Pende[n]te Lite (sic) and in consonan ce
with the imperious mandate of the law, the said prayer should be
accorded affirmative relief.[28] (Citations omitted)
LAW O N P U B LI C O FFI C ER S
In denying petitioner's Motion for Reconsideration, the
Sandiganbayan further held:
Accused in his motion substantially alleged that Article 177
(Usurpation of Authority and Official Function) of the Revised
Penal Code, which is the charge against herein accused, does not
fall under the catchall provision of Section 13 of Republic Act No.
3019 "x x x or for any offense involving fraud upon government
or public funds or property x x x." He said that the acts
complained of as alleged in the Information do not constitute
fraud upon government or public fund or property.
Though the argument by the accused seems plausible, this Court
is still inclined to uphold its ruling suspending accused pendente
lite. The accused argued that the fraud contemplated in the law is
one involving (1) government funds or property; and (2) public
funds or property. This is precisely availing in the case at bar. The
Information in herein case, says: "x x x accused x x x assume the
duties and functions of the Office of the Mayor, issue directives
and memoranda and appoint certain persons to various positions
in the city government, and perform acts pertaining to an office
to which he knowingly was deprived of." When accu sed-mayo r
appointed persons in various positions, he indirectly dealt with the
city's funds as those persons appointed will be given their
respective salaries, benefits and other monetary consideratio n
which will be paid wholly or mainly out of the city's
funds. Additionally, when he performed acts pertaining to the
Office of the Mayor, i.e.[,] approval of vouchers, and payment of
other expenses which is subject to proof, he likewise indirectly
dealt with the funds of the city.
Moreover, as the prosecution said, "when accused Miranda,
willfully and knowingly, during the effectivity of his suspension
barged into the City Hall, issued orders and directives and
performed functions as City Mayor, he was sending the unwritten
yet visible message that he was authorized to do and function as
such. x x x." We hold this as a fraud upon government resulting
in the chaos or confusion albeit temporary, as the employees
would be in a quandary whom to follow or obey.
Hence, considering that the charge herein evidently falls within
the compass of the suspension provision invoked by the
prosecution, there is no cogent reason for this Court to depart
from its previous ruling. Further, considering the mandatory
tenor of Section 13[,] Republic Act No. 3019, the motion for
reconsideration is hereby denied.
Accordingly, the Motion for Reconsideration is denied for lack of
merit.[29]
51 | P a g e
This Court finds no reason to disagree with the
Sandiganbayan. Its conclusions are amply supported by the
record. Additionally, the issue of whether petitioner committed
fraud upon the government or public funds or property is
essentially factual. In a special civil action for certiorari, the only
question that may be raised is whether or not the respondent acted
without or in excess of jurisdiction or with grave abuse of
discretion. The Court cannot correct errors of fact or law which
do not amount to grave abuse of discretion. [30]
The dissenting opinion, however, says there was no fraud. It
holds that "it would be fraud of public funds if these public
officials just collected their salaries without rendering service to
the government." It further asserts that "fraud upon
government" must be read so as to require that malversation of
funds was committed. [31] This is a complete volte face from its
claim that Section 13 of R.A. No. 3019 covers two types of
offenses: (1) any offense involving fraud upon the
government; and (2) any offense involving public funds or
property.[32] What is more, adopting the dissenting opinion's line
of reasoning would render superfluous the phrase "fraud upon
government" as malversation is subsumed by "any offense
involving public funds or property."
Third. We are not a bit persuaded by the posture of the petitioner
that he reassumed office under an honest belief that he was no
longer under preventive suspension. Petitioner's pretense
cannot stand scrutiny. Petitioner's own affidavit states: [33]
8. That on November 24, 1997, at that time, (sic) I had alread y
served my single preventive suspension for a total number
of ONE HUNDRED TWENTY (120) days more or less
counted from July 24, 1997, which far exceeds the allowable
period of 60 days as maximum preventive suspension, for a
single suspension for a local elective official like me as
provided for under the Local Government Code of 1991
(sic) on the same date, November 24, 1997 in good faith and
upon the advise (sic) of my lawyers, I notified both the
Ombudsman and DILG of my intention to assume my
office as the duly elected City Mayor of Santiago City;
9. That earlier on November 24, 1997 I started to reassume my
office and functions as City Mayor of Santiago City;
surprisingly on the same date, November 24, 1997 I
received a memorandum issued by Undersecretary Manuel
R. Sanchez of DILG instructing me to cease and desist from
my plan to reassume the functions and duties of my office;
LAW O N P U B LI C O FFI C ER S
 10. For less than a week, after November 24, 1997 Vice- In rejecting the defense of the accused Hilvano, we ruled: [37]
Mayor AMELITA NAVARRO relentlessly harassed and There is no excuse for defendant-appellant. In the beginning he
threatened me and my constituents with bodily harm using might have pleaded good faith, invoking the designation by the
the strong arm of the law thru the brute force of the PNP Mayor; but after he had been shown the letter of the Executive
courteousy (sic) of Undersecretary Manuel R. Sanchez I was Secretary and the opinion of the provincial fiscal, he had no right
constrained to ceased (sic) from performing my duties thereafter stubbornly to stick to the position. He was rightfully
and functions to avoid any possible unfortunate convicted.
incident that may happen to me and any
Petitioner's excuse for violating the order of preventive
constituents; x x x.[34] (Emphases supplied)
suspension is too flimsy to merit even a side-glance. He alleged
that he merely followed the advice of his lawyer. If petitioner
By petitioner's own admission, he refused to leave his position
and his counsel had an iota of respect for the rule of law, they
despite the memorandum of Undersecretary Sanchez and left
should have assailed the validity of the order of suspension in
only a few days after receipt thereof due to the coercion of the
court instead of taking the law into their own hands.
Philippine National Police. This contradicts his assertion that
he immediately complied with the memorandum of
Fourth. It should be stressed that petitioner was suspended by
Undersecretary Sanchez.[35] Petitioner cannot escape from his
the Sandiganbayan. Under Section 13 of R.A. No. 3019, this
own admission.
suspension is mandatory if the information is
sufficient. Understandably, the dissent argues that the Amended
To be sure, petitioner's honest belief defense is old hat. In
Information is insufficient in form as it should have "expressly
the 1956 case of People v. Hilvano,[36] the facts are:
and clearly stated that Miranda re- assumed office to defraud the
When Mayor Fidencio Latorre of Villareal, Samar, departed for
government or that in re-assuming office Miranda committed acts
Manila on official business early in the morning of September 22,
that defrauded the government"[38] and that it is improper to take
1952, he designated the herein defendant Francisco Hilvano,
into account the petitioner's admissions in his affidavit for this
councilor, to discharge the duties of his office. Later, during office
purpose.
hours on that same day, Vice-Mayor Juan Latorre went to the
municipal building; and having found Hilvano acting in the place
With due respect, the dissent is way off-line. The records will
of the Mayor, he served written notices to the corresponding
show that petitioner did not file a motion to quash the
municipal officers, including Hilvano, that he (Juan Latorre) as
information or a motion for bill of particulars before pleading to
Vice-Mayor was assuming the duties of the absent mayor.
the information. It is basic that entering a plea waives any
However, Hilvano refused to yield, arguing that he had been
objection the petitioner may have to the validity of the
designated by the Mayor. Whereupon the Vice-Mayor sent a
information except on the following grounds: (1) the information
telegram to the Executive Secretary informing the latter of the
charges no offense; (2) the trial court has no jurisdiction over the
controversy. And the said Secretary replied by letter, that under
offense charged; (3) the penalty or the offense has been
sec. 2195 of the Revised Administrative Code it was the Vice -
extinguished; and (4) double jeopardy has attached. [39] Objection s
Mayor who should discharge the duties of the Mayor during the
to the sufficiency of the allegations in the Amended Information
latter's temporary absence. Shown this official pronouncement,
do not fall among the exceptions to the rule. They fall under the
Hilvano still refused to surrender the position. Again the Vice-
objection that the information "does not conform substantially to
Mayor sought the opinion of the Provincial Fiscal, who by letter
the prescribed form."[40] Needless to state, the petitioner has by
(Exhibit D), replied that the Vice-Mayor had the right to the
his acts acquiesced to the validity and sufficiency of the Amended
office. Notwithstanding such opinion which was exhibited to him
Information. It is, thus, incorrect for the dissenting opinion to
- Hilvano declined to vacate the post, which he held for about a
peddle the proposition that the petitioner has been deprived of
month, appointing some policemen, solemnizing marriages and
his constitutional right to be apprised of the nature and cause of
collecting the corresponding salary for mayor.
the accusation against him. Worse, it is improper for the
dissenting opinion to raise this issue motu proprio . Under our
Wherefore Francisco Hilvano was prosecuted - and after trial -
Rules of Court, it is the petitioner who should raise this objection
was convicted of usurpation of public authority under Republic
in a motion to quash or motion for bill of particulars before
Act No. 10. He appealed in due time.
entering his plea.[41] The irregular procedure followed by the

52 | P a g e LAW O N P U B LI C O FFI C ER S
dissent would encourage the pernicious practice of "sandbagging"
where counsel foregoes raising a pleading defect before trial where
it can be easily corrected only to raise the defect later in the hope
of obtaining an arrest of judgment or new trial from a sympathetic
magistrate.[42] It is precisely this evil that is addressed by Rule 117,
Section 9 of our Revised Rules of Criminal Procedure.
Even assuming for the nonce, that the objection to the sufficien cy
of the information was raised in a timely fashion by the petitioner,
the dissenting opinion's arguments still do not convince. The
validity or sufficiency of allegations in an information is
determined according to the provisions of Section 9 of the
Revised Rules of Criminal Procedure, viz:
SECTION 9. Cause of the Accusation. - The acts or omissions
complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to
pronounce judgment. [43]
The test is whether the crime is described in intelligible terms with
such particularity as to apprise the accused, with reasonable
certainty, of the offense charged. The raison d'etre of the rule is to
enable the accused to suitably prepare his defense. [44] A perusal of
the Amended Information will bear out that it has hurdled this
legal bar. We quote its contents:
That on or about 24 November 1997, in the City of Santiago,
Isabela, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then the
elected City Mayor of Santiago City, while under preventive
suspension, did, then and there, willfully, unlawfully, and
knowingly and under pretense of official position, assume the
duties and function of the Office of the Mayor, issue directives
and memoranda, and appoint certain persons to various positions
in the city government, and perform acts pertaining to an office
to which he knowingly was deprived of. [45]
Using this test, it cannot be said that the Amended Information
failed to properly apprise the petitioner of the charge against him.
The information charged the petitioner with assuming the duties
and performing acts pertaining to the office of Mayor willfully,
unlawfully and knowingly under the pretense of official position.
Moreover, it states some of the specific acts which constitute
usurpation of official functions, namely, issuing directives and
memoranda and appointing certain persons to various positions
in the city government. These allegations are clear enough for a
layman to understand. Indeed, even the petitioner does not
53 | P a g e
complain about their ambiguity. Only the dissent does.
Fifth. The dissenting opinion also contends that the
Ombudsman's authority to preventively suspend local elective
officials for 6 months is limited by Section 63(b) of the Local
Government Code. Under the latter law, petitioner can only be
suspended for a maximum period of 60 days. It then jumps to the
conclusion that petitioner could not have usurped authority
because he reassumed office after 60 days. [46]
With due respect, the dissent fails to focus on the proper issue.
The issue before this Court is whether the Sandiganbayan
committed a grave abuse of discretion in suspending the
petitioner for 90 days. The validity of the Ombudsman's order
of preventive suspension of the petitioner for 6 months is not the
one assailed in the case at bar. The irrelevance of the suspension
order of the Ombudsman notwithstanding, the reliance of the
dissenting opinion on Garcia v. Mojica is inapropos. In Garcia,
we held:
Given these findings, we cannot say now that there is no eviden ce
sufficiently strong to justify the imposition of preventive
suspension against petitioner. But considering its purpose and
the circumstances in the case brought before us, it does
appear to us that the imposition of the maximum period of
six months is unwarranted.
On behalf of respondents, the Solicitor General stated during his
oral argument at the hearing that the documents mentioned in
respondents' comment (such as purchase orders, purchase
requests, and disbursement vouchers), documents that show
petitioner's guilt, were obtained after petitioner had been
suspended. Even if an afterthought, he claimed they strengthen
the evidence of respondents against petitioner. If the purpose of
the preventive suspension was to enable the investigating
authority to gather documents without intervention from
petitioner, then, from respondents' submission, we can only
conclude that this purpose was already achieved, during the
nearly month-long suspension of petitioner from June 25 to
July 19, 1999. Granting that now the evidence against
petitioner is already strong, even without conceding that
initially it was weak, it is clear to us that the maximum six-
month period is excessive and definitely longer than
necessary for the Ombudsman to make its legitimate case
against petitioner. We must conclude that the period during
which petitioner was already preventively suspended, has been
sufficient for the lawful purpose of preventing petitioner from
hiding and destroying needed documents, or harassing and
preventing witnesses who wish to appear against him.
LAW O N P U B LI C O FFI C ER S

We reach the foregoing conclusion, however, without
necessarily subscribing to petitioner's claim that the Local
Government Code, which he averred should apply to this
case of an elective local official, has been violated. True,
under said Code, preventive suspension may only be imposed
after the issues are joined, and only for a maximum period of sixty
days. Here, petitioner was suspended without having had the
chance to refute first the charges against him, and for the
maximum period of six months provided by the Ombudsman
Law. But as respondents argue, administrative complaints
commenced under the Ombudsman Law are distinct from
those initiated under the Local Government Code.
Respondents point out that the shorter period of suspension
under the Local Government Code is intended to limit the period
of suspension that may be imposed by a mayor, a governor, or the
President, who may be motivated by partisan political
considerations. In contrast the Ombudsman, who can impose
a longer period of preventive suspension, is not likely to be
similarly motivated because it is a constitutional body. The
distinction is valid but not decisive, in our view, of whether there
has been grave abuse of discretion in a specific case of preventive
suspension.[47] (Emphases supplied)
Nowhere in Garcia is it stated that the limits provided in the Local
Government Code apply to the Ombudsman. In fact, the Court
expressly stated that its decision was rendered without
subscribing to the petitioner's claim that the Local Government
Code had been violated. In fine, the Court only ruled that the
Ombudsman acted with grave abuse of discretion in imposing a
6-month preventive suspension since it was admitted that the
documents required were already obtained by 19 July 1999 or 24
days after the imposition of the preventive suspension. Therefore,
the purpose for which the suspension was imposed was alread y
served.
The dissenting opinion also cites the case of Rios v.
Sandiganbayan[48] as basis for assailing the Ombudsman's order
of preventive suspension. Rios is neither here nor there since the
powers of the Sandiganbayan were at issue in that case, not
those of the Ombudsman. It is also worth noting that Rios cited
Section 63 of the Local Government Code as its legal basis. This
provision provides:
SECTION 63. Preventive Suspension. -
(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective official of
a province, a highly urbanized or an independent
component city;
54 | P a g e
(2) By the governor, if the respondent is an elective official of
a component city or municipality; or
(3) By the mayor, if the respondent is an elective official of the
barangay.
(b) Preventive suspension may be imposed at any time after the
issues are joined, when the evidence of guilt is strong, and
given the gravity of the offense, there is great probability that
the continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence: Provided, That, any single
preventive suspension of local elective officials shall not
extend beyond sixty (60) days: Provided, further, That in the
event that several administrative cases are filed against an
elective official, he cannot be preventively suspended for more
than ninety (90) days within a single year on the same ground
or grounds existing and known at the time of the first
suspension.
(c) Upon expiration of the preventive suspension, the suspended
elective official shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him,
which shall be terminated within one hundred twenty (120)
days from the time he was formally notified of the case against
him. However, if the delay in the proceedings of the case is
due to his fault, neglect, or request, other than the appeal duly
filed, the duration of such delay shall not be counted in
computing the time of termination of the case.
It is plain that the provision was only meant as a cap on the
discretionary power of the President, governor and mayor to
impose excessively long preventive suspensions. The
Ombudsman is not mentioned in the said provision and was not
meant to be governed thereby. Indeed, the reason is not hard to
distill. The President, governor and mayor are political
personages. As such, the possibility of extraneous factors
influencing their decision to impose preventive suspensions is not
remote. The Ombudsman, on the other hand, is not subject to
political pressure given the independence of the office which is
protected by no less than the Constitution. This view was
embraced by the Court in Hagad v. Gozo-Dadole[49] and Garcia
v. Mojica.[50] In Hagad, we held:
Respondent local officials contend that the 6-month
preventive suspension without pay under Section 24 of the
Ombudsman Act is much too repugnant to the 60-day
preventive suspension provided by Section 63 of the Local
Government Code to even now maintain its application. The
two provisions govern differently. In order to justify the
preventive suspension of a public official under Section 24 of R.A.
No. 6770, the evidence of guilt should be strong, and (a) the
charge against the officer or employee should involve dishonestly,
LAW O N P U B LI C O FFI C ER S
oppression or grave misconduct or neglect in the performance of
duty; (b) that the charges should warrant removal from the
service; or (c) the respondent's continued stay in office would
prejudice the case filed against him. The Ombudsman can impose
the 6- month preventive suspension to all public officials, whether
elective or appointive, who are under investigation. Upon the
other hand, in imposing the shorter period of sixty (60) days of
preventive suspension prescribed in the Local Government Code
of 1991 on an elective local official (at any time after the issues are
joined), it would be enough that (a) there is reasonable ground to
believe that the respondent has committed the act or acts
complained of, (b) the evidence of culpability is strong,(c) the
gravity of the offense so warrants, or (d) the continuance in office
of the respondent could influence the witnesses or pose a threat
to the safety and integrity of the records and other evidence. [51]
In the same vein, we made the following observations in Garcia,
viz.:
Respondents may be correct in pointing out the reason for the
shorter period of preventive suspension imposable under the
Local Government Code. Political color could taint the exercise
of the power to suspend local officials by the mayor, governor, or
President's office. In contrast the Ombudsman, considering
the constitutional origin of his Office, always ought to be
insulated from the vagaries of politics, as respondents would
have us believe. x x x 6770,[57] otherwise known as "The Ombudsman Act of 1989,"
It was also argued in Hagad, that the six-month preventive
suspension under the Ombudsman Law is "much too
repugnant" to the 60-day period that may be imposed under
the Local Government Code. But per J. Vitug, "the two
provisions govern differently."[52] (Emphases supplied)
There is no reason to reverse this ruling. Our above ruling is in
accord with the intent of the law. It bears emphasis that Senator
Pimentel[53] explained during the Senate deliberations that the
purpose of Section 63 of the Code is to prevent the abuse of the
power of preventive suspension by members of the executive
branch, to wit:
The President.[54] I recall that in the case of Iloilo City Mayor
Ganzon, he challenged the right of the President, acting through
the Secretary of Local Government, I think, Luis Santos, to
suspend him - -
Senator Pimentel. That is true, Mr. President.
The President. - - contending that under the new Constitution,
even the President does not have that right.
55 | P a g e
Senator Pimentel. Now, as far as we are concerned, the
Senate Committee is ready to adopt a more stringent rule
regarding the power of removal and suspension by the Office
of the President over local government officials, Mr.
President. We would only wish to point out that in a subsequent
section, we have provided for the power of suspension of local
government officials to be limited only to 60 days and not more
than 90 days in any one year, regardless of the number of
administrative charges that may be filed against a local
government official. We, in fact, had in mind the case of
Mayor Ganzon of Iloilo where the Secretary of Local
Government sort of serialized the filing of charges against
him so that he can be continuously suspended when one
case is filed right after the other, Mr. President.
The President. Can that be done under this new Code?
Senator Pimentel. Under our proposal, that can no longer be
done, Mr. President. [55]
Verily, Section 63 of the Local Government Code does not
govern preventive suspensions imposed by the Ombudsman,
which is a constitutionally created office and independent from
the Executive branch of government. [56] The Ombudsman's
power of preventive suspension is governed by Republic Act No.
which provides:
SECTION 24. Preventive Suspension. - The Ombudsman or his
Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than
six months, without pay, except when the delay in the disposition
of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
suspension herein provided. [58] (Emphasis supplied)
The six-month period of preventive suspension imposed by the
Ombudsman [59] was indubitably within the limit provided by its
enabling law. This enabling law has not been modified by the
legislature.
LAW O N P U B LI C O FFI C ER S
The dissenting opinion submits that providing for a six-month
limit for the Ombudsman while keeping the limit for executive
officials at sixty days violates the constitutional proscription
against equal protection of the law. In essence, it avers that there
is no substantial distinction between preventive suspensions
handed down by the Ombudsman and those imposed by
executive officials. On the contrary, there is a world of differen ce
between them. The Constitution has endowed the Ombudsman
with unique safeguards to ensure immunity from political
pressure. Among these statutory protections are fiscal
autonomy,[60] fixed term of office[61] and classification as an
impeachable officer.[62] This much was recognized by this Court
in the earlier cited case of Garcia v. Mojica.[63] Moreover, there
are stricter safeguards for imposition of preventive suspension by
the Ombudsman. The Ombudsman Act of 1989 requires that the
Ombudsman determine: (1) that the evidence of guilt is strong;
and (2) that any of the following circumstances are present: (a) the
charge against such officer or employee involves dishonesty,
oppression, or grave misconduct or neglect in the performance of
duty; (b) the charges would warrant removal from the service; or
(c) the respondent's continued stay in office may prejudice the
case filed against him.[64]
The dissenting opinion finally points out the possibility of abuse
by the Ombudsman in imposing preventive suspensions. The
short reply is that all powers are susceptible of abuse but that is
no reason to strike down the grant of power. Suffice it to say that
the proper remedies against abuse in the exercise of power are a
petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure or amendment of the Ombudsman's enabling law by
the legislature, not a contortionist statutory interpretation by this
Court.
IN VIEW WHEREOF, the instant petition is DISMISSED
there being no showing that the Sandiganbayan gravely abused its
discretion in issuing its Resolution of 4 February 2002,
preventively suspending the petitioner for 90 days.
SO ORDERED.
G.R. No. 176702, November 13, 2013
OFFICE OF THE OMBUDSMAN, PETITIONER, VS.
MARCELINO A. DECHAVEZ, RESPONDENT.
56 | P a g e
D E C I S I O N BRION, J.:
The petitioner, Office of the Ombudsman (Ombudsman), seeks in
this Rule 45 petition for review on certiorari[1] the reversal of the
Court of Appeals’ (CA’s) decision [2] and resolution [3] reversing the
Ombudsman’s rulings [4] that dismissed respondent Marcelino A.
Dechavez (Dechavez) from the service for dishonesty.
THE FACTS
The attendant facts are not complicated and, in fact, involve the
oft-repeated scenario in the public service workplace – a
complaint by subordinate employees against their superior officer
for misconduct in office. In a twist of fortune (or misfortune), an
accident triggered the whole train of events that led to the present
case.
Dechavez was the president of the Negros State College of
Agriculture (NSCA) from 2001 until his retirement on April 9,
2006. On May 5, 2002, a Sunday, Dechavez and his wife, Amelia
M. Dechavez (Mrs. Dechavez), used the college service Suzuki
Vitara to go to Pontevedra, Negros Occidental. Dechavez drove
the vehicle himself. On their way back to the NSCA, they figured
in a vehicular accident in Himamaylan City, resulting in minor
injuries to the occupants and damage to the vehicle.
To support his claim for insurance, Dechavez executed an
affidavit[5] before the Government Service Insurance System
(GSIS). The GSIS subsequently granted Dechavez’s claims
amounting to P308,000.00, while the NSCA shouldered
P71,000.00 as its share in the vehicle’s depreciation expense. The
GSIS released P6,000.00 for Mrs. Dechavez’s third-party liability
claim for bodily injuries.
On November 11, 2002, twenty (20) faculty and staff members of
the NSCA (complainants) asked the Commission on Audit (COA)
to conduct an audit investigation of NSCA’s expenditures in the
May 5, 2002 vehicular accident. The COA dismissed the
complaint for lack of merit. [6]
The complainants then sought recourse with the Ombudsman,
Visayas, through a verified complaint [7] charging Dechavez with
Dishonesty under Section 46(b)(1), Chapter 6, Tile I of the
Administrative Code of 1987. [8]
THE OMBUDSMAN’S RULING
The Ombudsman dismissed Dechavez from the service with all
accessory penalties after finding him guilty. [9] The Ombudsman
ruled that the complainants sufficiently established their
LAW O N P U B LI C O FFI C ER S
allegations, while Dechavez’s defenses had been successfully required in administrative proceedings. It likewise invokes its
rebutted. The motion for reconsideration that Dechavez filed was findings and posits that because they are supported by substantial
subsequently denied. [10] evidence, they deserve great weight and must be accorded full
respect and credit.
THE CA’S RULING
The CA examined the same pieces of evidence that the Dechavez counters that the present petition raises factual issues
Ombudsman considered and reversed the Ombudsman’s that are improper for a petition for review on certiorari under Rule
findings.[11] 45. He adds that the present case has been mooted by his
retirement from the service on April 9, 2006, and should properly
In complete contrast with the Ombudsman’s rulings, the CA be dismissed.
found that the complainants failed to sufficiently show that
Dechavez had deliberately lied in his May 10, 2002 THE COURT’S RULING
affidavit. Dechavez sufficiently proved that he went on an official The Court finds the petition meritorious.
trip, based on the reasons outlined below and its reading of the
evidence: The CA’s factual findings are conclusive;
exceptions
First, there was nothing wrong if Dechavez worked on a Sunday;
he must, in fact, be commended for his dedication. The rule that the Court will not disturb the CA’s findings of fact
is not an absolute rule that admits of no exceptions. [13] A notable
Second, the Ombudsman should have accorded greater belief on exception is the presence of conflict of findings of fact between
the NSCA drivers’ positive assertion that they were not available or among the tribunals’ rulings on questions of fact. The case
to drive for Mr. and Mrs. Dechavez (as they had serviced other before us squarely falls under this exception as the tribunals below
faculty members at that time), as against the NSCA security made two critical conflicting factual findings. We are thus compelled to
guards’ allegation that these drivers were available then (because undertake our own factual examination of the evidence presented.
they allegedly saw the drivers within the college premises on that
Sunday); speculations on the nature of the trip should not arise This Court cannot be any clearer in laying down the rule on the
simply because Dechavez personally drove the vehicle. quantum of evidence to support an administrative ruling: “In
administrative cases, substantial evidence is required to support
Third, the certifications of Mr. Larry Parroco (Pontevedra any findings. Substantial evidence is such relevant evidence as a
Sanggunian Bayan Member) and Mr. Cornelio Geanga (Chair of reasonable mind may accept as adequate to support a
the Education Committee and Head Teacher of the M.H. Del conclusion. The requirement is satisfied where there is reasonable
Pilar Elementary School) should have persuaded the Ombudsman ground to believe that the petitioner is guilty of the act or omission
that the affiants are public officials who would not lightly issue a complained of, even if the evidence might not be
certification or falsely execute affidavits as they know the overwhelming.”[14]
implications and consequences of any falsity.
Our own examination of the records tells us that the
Fourth and lastly, the two lists of teaching instructors had been Ombudsman’s findings and appreciation of the presented
prepared by the same person, and if the second list had indeed evidence are more in accord with reason and common experien ce
been questionable, Mr. Pablito Cuizon (NSCA’s Chairman for so that it successfully proved, by the required quantum of
Instructions) would have not attached the second list to his evidence, Dechavez’s dishonesty, at the same time that we find
affidavit. the respondent’s reading of the evidence to be stretched to the
point of breaking, as our analysis below shows.
On February 7, 2007, the CA denied [12] the motion for
reconsideration filed by the Ombudsman. We start with our agreement with the CA’s view that the
Ombudsman’s finding – that Dechavez was not on official
THE PARTIES’ ARGUMENTS business on May 5, 2002 because it was a Sunday (a non-working
The Ombudsman argues that the guilt of Dechavez has been day) – by itself, is not sufficient basis for the conclusion that
proven by substantial evidence – the quantum of eviden ce Dechavez’s business on that day was not official. We,
57 | P a g e LAW O N P U B LI C O FFI C ER S
nevertheless, examined the other surrounding facts and are
convinced that the spouses Dechavez’s trip was a personal one;
thus, Dechavez had been dishonest when he made the claim that
he went on official business. The dishonesty, of course, did not
arise simply from the nature of the trip, but from the claim for
insurance that brought the spouses a substantial sum.
First. Dechavez alleged that the trip was urgent, and there were
no drivers available; hence, he drove the vehicle himself. He
added that the fact that the trip ticket was accomplished on May
5, 2002, a Sunday, and that it was typewritten, are not material as
he was not prohibited from driving the car himself.
We do not agree with Dechavez’s claim about the immateriality
of the trip ticket; it was presented as evidence and, as such, carries
implications far beyond what Dechavez claims. The fact alone
that the ticket, for a trip that was allegedly urgent, was typewritten
already speaks volumes about the integrity of this piece of
evidence. We agree with the Ombudsman, based on common
experience and probability, that had the trip really been urgent and
had the trip ticket been accomplished on the date of the trip, May
5, 2002, it would have been handwritten. The trip ticket, however,
was typewritten, indicating that it had been prepared ahead of
time, or thereafter, not on that Sunday immediately before leaving
on an urgent trip. In fact, if it had been prepared ahead of time,
then the trip could not have been urgent as there was advan ce
planning involved.
In other words, if the trip ticket had been prepared ahead of time,
the trip should have been scheduled ahead of time, and necessary
arrangements should have been made for the availability of a
driver. Therefore, it was unlikely that Dechavez would have
known that no driver would be available for him on the date of
the trip.
On another note, if the trip ticket had been prepared after the trip,
the Ombudsman was correct in observing that Dechavez had no
authority to drive the vehicle in the absence of the requisite trip
ticket.[15] Worse, if it had been prepared after the trip after an
accident had intervened, then there had been a conscious attempt
to “sanitize” the incidents of the trip. It is at this point where the
claim for insurance becomes material; the trip ticket removed all
questions about the regularity and official character of the trip.
After examining the testimonies, too, we lean in favor of the view
that there were available drivers on May 5, 2002, contrary to what
Dechavez claimed. As between the assertion of the security
guards that they had seen available drivers on the day of the trip,
and the drivers’ denial (and assertion that they had serviced other
58 | P a g e
faculty members at that time), the settled evidentiary rule is that
“as between a positive and categorical testimony which has a ring
of truth, on one hand[,] and a bare denial[,] on the other, the
former is generally held to prevail.” [16] Furthermore, while
Dechavez insists that the allegations of the drivers were
corroborated by the teachers they had driven for, the attestations
of these teachers remained to be hearsay: Dechavez failed to
present their attestations in evidence.
Dechavez additionally argues that the way the trip ticket was
accomplished bears no significance in these circumstances,
insisting further that it is of no moment that he drove the vehicle
himself, as he was not prohibited from doing so. Read in
isolation, the Court might just have found these positions
convincing. Read with the other attendant circumstances,
however, the argument becomes shaky.
If Dechavez thought that there was nothing wrong in driving the
vehicle himself, why would he indicate that the reason he drove
the vehicle himself was that there were no available drivers, and
that it was urgent? Finally, if indeed it was true that Dechavez
used to perform his extension service or confer with the NSCA’s
linkages during weekends, how come the trip became urgent and
the driver had not been assigned beforehand?
Second. We cannot give weight to the certification of Mr.
Parroco that Dechavez used to visit the Pontevedra District to
coordinate with his office, and that Dechavez also visited his
office on May 5, 2002. We likewise disregard the statement of Mr.
Geanga that Dechavez appeared before his office on May 5,
2002. The certifications of these two witnesses were submitted
only in October 2004 or two (2) years after the case was filed with
the Ombudsman. The time lag alone already renders the
certifications suspect and this inconsistency has not been
satisfactorily explained. The late use of the certifications also
deprived the complainants of the opportunity to refute them and
the Ombudsman the chance to examine the affiants. As the
Ombudsman observed, too, it is hard to believe that all four (4)
of them – Mr. and Mrs. Dechavez, Mr. Parroco, and Mr. Geanga
– happened to agree to work on a Sunday, a non-working day; this
story simply stretches matters beyond the point of believability in
the absence of supporting proof that this kind of arrangement has
been usual among them.
Finally, we find that Mrs. Dechavez was not on official business
on May 5, 2002; in fact, she was not teaching at that time. We
note in this regard that the parties presented two (2) conflicting
instructor’s summer teaching loads for 2002: the first one, dated
LAW O N P U B LI C O FFI C ER S
April 1, 2002, which did not include Mrs. Dechavez, while the proper and imposable under the situation.” [20]
other, an undated one, included Mrs. Dechavez ’s
name. Curiously, the same person who prepared both Recently, we emphasized that in a case that a public official’s
documents, Mr. Cuizon, failed to explain why there were two (2) cessation from service does not render moot an administrative
versions of the same document. Considering the highly irregular case that was filed prior to the official’s resignation. In the 2011
and undated nature of the list that contained the name of Mrs. case of Office of the Ombudsman v. Andutan, Jr.,[21] we reiterated the
Dechavez, we again concur with the Ombudsman’s reading that doctrine and laid down the line of cases supporting this principle
while we can presume that the undated list had been prepared when we ruled:
before the start of the summer classes, we can also presume that
the other list had been prepared subsequently to conveniently suit To recall, we have held in the past that a public official’s
the defense of the respondent. [17] resignation does not render moot an administrative case that was
filed prior to the official’s resignation. In Pagano v. Nazarro, Jr., we
Likewise, Ms. Fe Ulpiana, a teacher at the NSCA, whose name held that:
appears in the second document, attested that she had never been
assigned to register and assess the students’ school fees, contrary In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22
to what appeared thereon. We find it worth mentioning that July 2004, 434 SCRA 654, 658], this Court categorically ruled that
Dechavez’s witness, Mr. Cuizon, despite being subpoenaed by the the precipitate resignation of a government employee charged
Ombudsman, failed to furnish the Schedule of Classes for with an offense punishable by dismissal from the service does not
Summer 2002 and the Actual Teaching Load for Summer 2002. [18] render moot the administrative case against him. Resignation is
Dechavez also failed to provide the Ombudsman with the not a way out to evade administrative liability when facin g
subpoenaed daily time record (DTR) of Mrs. Dechavez for administrative sanction. The resignation of a public servant does
summer 2002 as the DTR supposedly could not be located . not preclude the finding of any administrative liability to which he
or she shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-
All told, too many gaps simply existed in Dechavez’s tale and 1974, 6 April 2005, 455 SCRA 13, 19-20]. [Italics supplied, citation
supporting evidence for his case to be convincing. omitted]

Retirement from the service during Likewise, in Baquerfo v. Sanchez,[22] we held:

the pendency of an administrative
case does not render the case moot Cessation from office of respondent by resignation or
and academi c retirement neither warrants the dismissal of the
administrative complaint filed against him while he was still
As early as 1975, we have upheld the rule that “the jurisdiction in the service nor does it render said administrative case
that was Ours at the time of the filing of the administrative moot and academic. The jurisdiction that was this Court’s at the
complaint was not lost by the mere fact that the respondent public time of the filing of the administrative complaint was not lost by
official had ceased to be in office during the pendency of his the mere fact that the respondent public official had ceased in
case. The Court retains its jurisdiction either to pronounce the office during the pendency of his case. Respondent’s resignation
respondent official innocent of the charges or declare him guilty does not preclude the finding of any administrative liability to
thereof. A contrary rule would be fraught with injustices and which he shall still be answerable. [Emphases ours; citations
pregnant with dreadful and dangerous implications.” [19] omitted]

Arguably, the cited case above is not applicable as it involved a Thus, from the strictly legal point of view and as we have held in
judge who retired four (4) days after a charge of grave misconduct, a long line of cases, jurisdiction, once it attaches, cannot be
gross dishonesty and serious inefficiency was filed against defeated by the acts of the respondent, save only where death
him. The wisdom of citing this authority in the present case can intervenes and the action does not survive.
be found, however, in its ruling that: “If innocent, respondent
official merits vindication of his name and integrity as he leaves WHEREFORE, under these premises, we hereby GRANT the
the government which he served well and faithfully; if guilty, he petition for review on certiorari. Accordingly, we REVERS E
deserves to receive the corresponding censure and a penalty AND SET ASIDE the decision dated March 31, 2006 and the
59 | P a g e LAW O N P U B LI C O FFI C ER S
resolution dated February 7, 2007 of the Court of Appeals in CA- [2] of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico
G.R. SP. No. 00673, and REINSTATE the decision dated P. Andutan, Jr. v. Office of the Ombudsman and Fact Finding and
October 29, 2004 and the order dated April 6, 2005 of the Office Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No.
of the Ombudsman. 68893. The assailed decision annulled and set aside the decision
of the Ombudsman dated July 30, 2001, [3] finding Uldarico P.
Costs against respondent Marcelino A. Dechavez . Andutan, Jr. guilty of Gross Neglect of Duty.

SO ORDERED. THE FACTUAL ANTECEDENTS

Andutan was formerly the Deputy Director of the One-Stop Shop
Tax Credit and Duty Drawback Center of the Department of
Finance (DOF). On June 30, 1998, then Executive Secretary
Ronaldo Zamora issued a Memorandum directing all non-career
officials or those occupying political positions to vacate their
positions effective July 1, 1998. [4] On July 1, 1998, pursuant to
the Memorandum, Andutan resigned from the DOF. [5]

On September 1, 1999, Andutan, together with Antonio P.

Belicena, former Undersecretary, DOF; Rowena P. Malonzo, Tax
Specialist I, DOF; Benjamin O. Yao, Chairman and Executive
Officer, Steel Asia Manufacturing Corporation (Steel Asia);
Augustus S. Lapid, Vice-President, Steel Asia; Antonio M.
Lorenzana, President and Chief Operating Officer, Steel Asia; and
Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc.,
was criminally charged by the Fact Finding and Intelligence
Bureau (FFIB) of the Ombudsman with Estafa through
Falsification of Public Documents, and violations of Section 3(a),
(e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act. [6] As government
employees, Andutan, Belicena and Malonzo were likewise
administratively charged of Grave Misconduct, Dishonesty,
Falsification of Official Documents and Conduct Prejudicial to
the Best Interest of the Service. [7]

The criminal and administrative charges arose from anomalies in

the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia,
among others. [8]

During the investigation, the FFIB found that Steel Asia

fraudulently obtained TCCs worth Two Hundred Forty-Two
G.R. No. 164679, July 27, 2011 Million, Four Hundred Thirty-Three Thousand, Five Hundred
Thirty-Four Pesos (P242,433,534.00). [9] The FFIB concluded
OFFICE OF THE OMBUDSMAN, PETITIONER, VS. that Belicena, Malonzo and Andutan - in their respective
ULDARICO P. ANDUTAN, JR., RESPONDENT. capacities - irregularly approved the "issuance of the TCCs to
several garment/textile companies and allowing their subsequent
D E C I S I O N BRION, J.: illegal transfer" to Steel Asia. [10]

Through a petition for review on certiorari, [1] the petitioner Office On November 11, 1999, the Ombudsman ordered the
of the Ombudsman (Ombudsman) seeks the reversal of the decision respondents therein (respondents) to submit their counter-
60 | P a g e LAW O N P U B LI C O FFI C ER S
affidavits. Only Malonzo complied with the order, prompting the
Ombudsman to set a Preliminary Conference on March 13, 2000.
Upon the respondents' failure to appear at the March 20, 2000
hearing, the Ombudsman deemed the case submitted for
resolution.
On July 30, 2001, the Ombudsman found the respondents guilty
of Gross Neglect of Duty. [11] Having been separated from the
service, Andutan was imposed the penalty of forfeiture of all
leaves, retirement and other benefits and privileges, and perpetual
disqualification from reinstatement and/or reemployment in any
branch or instrumentality of the government, including
government owned and controlled agencies or corporations.
After failing to obtain a reconsideration of the decision,
Andutan filed a petition for review on certiorari before the CA.
On July 28, 2004, [14] the CA annulled and set aside the decision
of the Ombudsman, ruling that the latter "should not have
considered the administrative complaints" because: first, Sectio n
20 of R.A. 6770 provides that the Ombudsman "may not conduct
the necessary investigation of any administrative act or omission
complained of if it believes that x x x [t]he complaint was filed
after one year from the occurrence of the act or omission
complained of"; [15] and second, the administrative case was filed
after Andutan's forced resignation. [16]
THE PETITIONER'S ARGUMENTS
In this petition for review on certiorari, the Ombudsman asks the
Court to overturn the decision of the CA. It submits, first, that
contrary to the CA's findings, administrative offenses do not
prescribe after one year from their commission, [17] and second, that
in cases of "capital" administrative offenses, resignation or
optional retirement cannot render administrative proceedings
moot and academic, since accessory penalties such as perpetual
disqualification and the forfeiture of retirement benefits may still
be imposed.
The Ombudsman argues that Section 20 of R.A. 6770 is not
mandatory. Consistent with existing jurisprudence, the use of the
word "may" indicates that Section 20 is merely directory or
permissive. [19] Thus, it is not ministerial upon it to dismiss the
administrative complaint, as long as any of the circumstan ces
under Section 20 is present. [20] In any case, the Ombudsman
urges the Court to examine its mandate under Section 13, Article
XI of the 1987 Constitution, and hold that an imposition of a one
(1) year prescriptive period on the filing of
61 | P a g e
unconstitutionally restricts its mandate. [21]
Further, the Ombudsman submits that Andutan's resignation
from office does not render moot the administrative proceedings
lodged against him, even after his resignation. Relying on Sectio n
VI(1) of Civil Service Commission (CSC) Memorandum Circular
No. 38, [22] the Ombudsman argues that "[a]s long as the breach
of conduct was committed while the public official or employee
was still in the service x x x a public servant's resignation is not a
bar to his administrative investigation, prosecution and
adjudication." [23] It is irrelevant that Andutan had alread y
resigned from office when the administrative case was filed since
he was charged for "acts performed in office which are inimical
[12] to the service and prejudicial to the interests of litigants and the
general public." [24] Furthermore, even if Andutan had alread y
[13] resigned, there is a need to "determine whether or not there
remains penalties capable of imposition, like bar from reenterin g
the (sic) public service and forfeiture of benefits." [25] Finally, the
Ombudsman reiterates that its findings against Andutan are
supported by substantial evidence.
THE RESPONDENT'S ARGUMENTS
Andutan raises three (3) counterarguments to the Ombudsman's
petition.
First, Andutan submits that the CA did not consider Section 20(5)
of R.A. 6770 as a prescriptive period; rather, the CA merely held
that the Ombudsman should not have considered the
administrative complaint. According to Andutan, Section 20(5)
"does not purport to impose a prescriptive period x x x but simply
prohibits the Office of the Ombudsman from conducting an
investigation where the complaint [was] filed more than one (1)
year from the occurrence of the act or omission complained of."
[26] Andutan believes that the Ombudsman should have referred
the complaint to another government agency. [27] Further,
Andutan disagrees with the Ombudsman's interpretation of
[18] Section 20(5). Andutan suggests that the phrase "may not conduct
the necessary investigation" means that the Ombudsman is
prohibited to act on cases that fall under those enumerated in
Section 20(5). [28]
Second, Andutan reiterates that the administrative case against him
was moot because he was no longer in the public service at the
time the case was commenced. [29] According to Andutan, Atty.
Perez v. Judge Abiera [30] and similar cases cited by the Ombudsman
do not apply since the administrative investigations against the
cases respondents in those cases were commenced prior to their
LAW O N P U B LI C O FFI C ER S
 resignation. Here, Andutan urges the Court to rule otherwise
since unlike the cases cited, he had already resigned before the
administrative case was initiated. He further notes that his
resignation from office cannot be characteriz ed as "preemptive,
i.e. made under an atmosphere of fear for the imminence of
formal charges" [31] because it was done pursuant to the
Memorandum issued by then Executive Secretary Ronaldo
Zamora.
Having established the propriety of his resignation, Andutan asks
the Court to uphold the mootness of the administrative case
against him since the cardinal issue in administrative cases is the
"officer's fitness to remain in office, the principal penalty
imposable being either suspension or removal." [32] The
Ombudsman's opinion - that accessory penalties may still be
imposed - is untenable since it is a fundamental legal principle that
"accessory follows the principal, and the former cannot exist
independently of the latter." [33]
The issue of whether Section 20(5) of R.A. 6770 is mandatory or
discretionary has been settled by jurisprudence. [34] In Office of the
Ombudsman v. De Sahagun, [35] the Court, speaking through Justice
Austria-Martinez, held:
[W]ell-entrenched is the rule that administrative offenses do not
prescribe [Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342,
September 20, 2005, 470 SCRA 218;Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476;Heck v. Judge Santos, 467
Phil. 798, 824 (2004);Floria v. Sunga,420 Phil. 637, 648-649
(2001)]. Administrative offenses by their very nature pertain to
the character of public officers and employees. In disciplining
public officers and employees, the object sought is not the
punishment of the officer or employee but the improvement of
the public service and the preservation of the public's faith and
confidence in our government [Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476, 481;Remolona v. Civil
Service Commission,414 Phil. 590, 601 (2001)].

Third, the Ombudsman's findings were void because procedural Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
and substantive due process were not observed. Likewise,
Andutan submits that the Ombudsman's findings lacked legal and SEC. 20.Exceptions. - The Office of the Ombudsmanmaynot
factual bases. conduct the necessary investigation of any administrative act or
omission complained of if it believes that:
ISSUES
Based on the submissions made, we see the following as the issues xx xx
for our resolution:

(5) The complaint was filed after one year from the occurrence of
I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman
the act or omission complained of. (Emphasis supplied)
from conducting an administrative investigation a year
after the act was committed?
proscribes the investigation of any administrative act or omission
if the complaint was filed after one year from the occurrence of
II. Does Andutan's resignation render moot the
the complained act or omission.
administrative case filed against him?

InMelchor v. Gironella [G.R. No. 151138, February 16, 2005, 451

III. Assuming that the administrative case is not moot, are the
SCRA 476], the Court held that the period stated in Section 20(5)
Ombudsman's findings supported by substantial evidence?
of R.A. No. 6770 does not refer to the prescription of the offense
but to the discretion given to theOmbudsmanon whether it would

THE COURT'S RULING investigate a particular administrative offense. The use of the
word "may" in the provision is construed as permissive and

We rule to deny the petition. operating to confer discretion [Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476, 481;Jaramilla v. Comelec,

The provisions of Section 20(5) are merely directory; 460 Phil. 507, 514 (2003)]. Where the words of a statute are clear,

the Ombudsman is not prohibited from conducting an plain and free from ambiguity, they must be given their literal

investigation a year after the supposed meaning and applied without attempted interpretation [Melchor v.

act was committed. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476,
481;National Federation of Labor v. National Labor Relations

62 | P a g e LAW O N P U B LI C O FFI C ER S
Commission, 383 Phil. 910, 918 (2000)]. of its right to institute an administrative
complaint against him.
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006,
508 SCRA 50],the Court interpreted Section 20 (5) of R.A. No. Although the Ombudsman is not precluded by Section 20(5) of
6770 in this manner: R.A. 6770 from conducting the investigation, the Ombudsman
can no longer institute an administrative case against Andutan
Petitioner argues that based on the abovementioned provision because the latter was not a public servant at the time the case was
[Section 20(5) of RA 6770)], respondent's complaint is barred by filed.
prescription considering that it was filed more than one year after
the alleged commission of the acts complained of. The Ombudsman argued - in both the present petition and in the
petition it filed with the CA - that Andutan's retirement from
Petitioner's argument is without merit. office does not render moot any administrative case, as long as he
is charged with an offense he committed while in office. It is
The use of the word "may" clearly shows that it is directory in irrelevant, according to the Ombudsman, that Andutan had
nature and not mandatory as petitioner contends. When used in a already resigned prior to the filing of the administrative case since
statute, it is permissive only and operates to confer discretion; the operative fact that determines its jurisdiction is the
while the word "shall" is imperative, operating to impose a duty commission of an offense while in the public service.
which may be enforced. Applying Section 20(5), therefore,it is
discretionary upon the Ombudsman whether or not to The Ombudsman relies on Section VI(1) of Civil Service
conduct an investigation on a complaint even if it was filed Commission Memorandum Circular No. 38 for this proposition,
after one year from the occurrence of the act or omission viz.:
complained of. In fine, the complaint is not barred by
prescription. (Emphasis supplied) Section VI.

The declaration of the CA in its assailed decision that while as a 1. x x x

general rule the word "may" is directory, the negative phrase "may An officer or employee under administrative investigation may be
not" is mandatory in tenor; that a directory word, when allowed to resign pending decision of his case but it shall be
qualified by the word "not," becomes prohibitory and without prejudice to the continuation of the proceeding against
therefore becomes mandatory in character, is not plausible. him. It shall also be without prejudice to the filing of any
It is not supported by jurisprudence on statutory administrative, criminal case against him for any act
construction. [emphases and underscoring supplied] committed while still in the service. (emphasis and
underscoring supplied)
Clearly, Section 20 of R.A. 6770 does not prohibit the
Ombudsman from conducting an administrative investigation
The CA refused to give credence to this argument, holding that
after the lapse of one year, reckoned from the time the alleged act
the provision "refers to cases where the officers or employees
was committed. Without doubt, even if the administrative case
were already charged before they were allowed to resign or were
was filed beyond the one (1) year period stated in Section 20(5),
separated from service." [36] In this case, the CA noted that "the
the Ombudsman was well within its discretion to conduct the
administrative cases were filed only after Andutan was retired,
administrative investigation.
hence the Ombudsman was already divested of jurisdiction and
could no longer prosecute the cases." [37]
However, the crux of the present controversy is not on the issue
of prescription, but on the issue of the Ombudsman's authority
Challenging the CA's interpretation, the Ombudsman argues that
to institute an administrative complaint against a government
the CA "limited the scope of the cited Civil Service Memorandum
employee who had already resigned. On this issue, we rule in
Circular to the first sentence." [38] Further, according to the
Andutan's favor.
Ombudsman, "the court a quo ignored the second statement in the
said circular that contemplates a situation where previous to the
Andutan's resignation divests the Ombudsman
institution of the administrative investigation or charge, the public
63 | P a g e LAW O N P U B LI C O FFI C ER S
official or employee subject of the investigation has resigned." [39] obtains.

To recall, we have held in the past that a public official's
resignation does not render moot an administrative case that was
filed prior to the official's resignation. In Pagano v. Nazarro, Jr.,
we held that:
InOffice of the Court Administrator v. Juan [A.M. No. P-03-1726,22
July 2004, 434 SCRA 654, 658], this Court categorically ruled that
the precipitate resignation of a government employee charged
with an offense punishable by dismissal from the servicedoes
notrender moot the administrative case against him.Resignation
is not a way out to evade administrative liability when facing
administrative sanction.The resignation of a public servant
does not preclude the finding of any administrative liability
to which he or she shall still be answerable [Baquerfo v. Sanchez,
A.M. No. P-05-1974,6 April 2005, 455 SCRA 13, 19-20].
[emphasis and underscoring supplied]
The Ombudsman's general assertion that Andutan pre-empted
the filing of a case against him by resigning, since he "knew for
[40] certain that the investigative and disciplinary arms of the State
would eventually reach him" [44] is unfounded. First, Andutan's
resignation was neither his choice nor of his own doing; he was
forced to resign. Second, Andutan resigned from his DOF post on
July 1, 1998, while the administrative case was filed on September
1, 1999, exactly one (1) year and two (2) months after his
resignation. The Court struggles to find reason in the
Ombudsman's sweeping assertions in light of these facts.
What is clear from the records is that Andutan was forced to
resign more than a year before the Ombudsman filed the
administrative case against him. Additionally, even if we were to
accept the Ombudsman's position that Andutan foresaw the filing
of the case against him, his forced resignation negates the claim
that he tried to prevent the filing of the administrative case.

Likewise, in Baquerfo v. Sanchez, [41] we held:

Having established the inapplicability of prevailing jurisprudence,
we turn our attention to the provisions of Section VI of CSC
Cessation from office of respondent by resignation [Reyes v. Cristi,
Memorandum Circular No. 38. We disagree with the
A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8] or retirement [Re:
Ombudsman's interpretation that "[a]s long as the breach of
Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged
conduct was committed while the public official or employee was
Falsification of Public Documents and Malversation of Public Funds, A.M.
still in the service x x x a public servant's resignation is not a bar
No. 2004-17-SC, 27 September 2004;Caja v. Nanquil, A.M. No. P-
to his administrative investigation, prosecution and adjudication."
04-1885, 13 September 2004] neither warrants the dismissal of
[45] If we agree with this interpretation, any official - even if he has
the administrative complaint filed against him while he was
been separated from the service for a long time - may still be
still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348
subject to the disciplinary authority of his superiors, ad
Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June
infinitum. We believe that this interpretation is inconsistent with
1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22
the principal motivation of the law - which is to improve public
April 1977, 76 SCRA 301] nor does it render said administrative
service and to preserve the public's faith and confidence in the
case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533
government, and not the punishment of the public official
(1998)]. The jurisdiction that was this Court's at the time of the
concerned. [46] Likewise, if the act committed by the public official
filing of the administrative complaint was not lost by the mere fact
is indeed inimical to the interests of the State, other legal
that the respondent public official had ceased in office during the
mechanisms are available to redress the same.
pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)].
Respondent's resignation does not preclude the finding of
The possibility of imposing
any administrative liability to which he shall still be
accessory penalties does not
answerable [OCA v. Fernandez, A.M. No. MTJ-03-1511, 20
negate the Ombudsman's lack
August 2004]. [emphases and underscoring supplied)
of jurisdiction.

However, the facts of those cases are not entirely applicable to the
The Ombudsman suggests that although the issue of Andutan's
present case. In the above-cited cases, the Court found that the
removal from the service is moot, there is an "irresistible
public officials - subject of the administrative cases - resigned,
justification" to "determine whether or not there remains penalties
either to prevent the continuation of a case already filed [42] or to
capable of imposition, like bar from re-entering the public service
pre-empt the imminent filing of one. [43] Here, neither situation
and forfeiture of benefits." [47] Otherwise stated, since accesso ry
64 | P a g e LAW O N P U B LI C O FFI C ER S
penalties may still be imposed against Andutan, the administrative
case itself is not moot and may proceed despite the inapplicability
of the principal penalty of removal from
We find several reasons that militate against this position.
First, although we have held that the resignation of an official does
not render an administrative case moot and academic because
accessory penalties may still be imposed, this holding must be read
in its proper context. In Pagano v. Nazarro, Jr., [48] indeed, we held:
A case becomes moot and academic only when there is no more
actual controversy between the parties or no useful purpose can
be served in passing upon the merits of the case [Tantoy, Sr. v.
Abrogar, G.R. No. 156128,9 May 2005, 458 SCRA 301, 305]. The
instant case is not moot and academic, despite the petitioner's
separation from government service.Even if the most severe of
administrative sanctions - that of separation from service - may
no longer be imposed on the petitioner, there are other penalties
which may be imposed on her if she is later found guilty of
administrative offenses charged against her, namely, the
disqualification to hold any government office and the
forfeiture of benefits. [emphasis and underscoring supplied]
Reading the quoted passage in a vacuum, one could be led to the
conclusion that the mere availability of accessory penalties justifies
the continuation of an administrative case. This is a misplaced
reading of the case and its
Esther S. Pagano - who was serving as Cashier IV at the Office of
the Provincial Treasurer of Benguet - filed her certificate of
candidacy for councilor four days after the Provincial Treasurer
directed her to explain why no administrative case should be filed
against her. The directive arose from allegations that her
accountabilities included a cash shortage of P1,424,289.99. She
filed her certificate of candidacy under the pretext that since she
was deemed ipso facto resigned from office, she was no longer
under the administrative jurisdiction of her superiors.
Thus, according to Pagano, the administrative complaint had
become
We rejected Pagano's position on the principal ground "that the
precipitate resignation of a government employee charged with an
offense punishable by dismissal from the servicedoes notrender
moot the administrative case against him. Resignation is not a
way out to evade administrative liability when
administrative sanction." [49] Our position that accessory penalties
65 | P a g e
are still imposable - thereby negating the mootness of the
administrative complaint - merely flows from the fact that Pagano
office. pre-empted the filing of the administrative case against her. It was
neither intended to be a stand-alone argument nor would it have
justified the continuation of the administrative complaint if
Pagano's filing of candidacy/resignation did not reek of
irregularities. Our factual findings in Pagano confirm this, viz.:
At the time petitioner filed her certificate of candidacy, petitioner
was already notified by the Provincial Treasurer that she needed
to explain why no administrative charge should be filed against
her, after it discovered the cash shortage ofP1,424,289.99 in her
accountabilities.Moreover, she had already filed her answer.To all
intents and purposes, the administrative proceedings had
already been commenced at the time she was considered
separated from service through her precipitate filing of her
certificate of candidacy.Petitioner's bad faith was manifest
when she filed it, fully knowing that administrative
proceedings were being instituted against her as part of the
procedural due process in laying the foundation for an
administrative case. [50] (emphasis and underscoring supplied)
Plainly, our justification for the continuation of the administrative
case - notwithstanding Pagano's resignation - was her "bad faith"
in filing the certificate of candidacy, and not the availability of
accessory penalties.
Second, we agree with the Ombudsman that "fitness to serve in
ruling.
public office x x x is a question of transcendental [importance] [51]"
and that "preserving the inviolability of public office" compels the
state to prevent the "re-entry [to] public service of persons who
have x x x demonstrated their absolute lack of fitness to hold
public office." [52] However, the State must perform this task
within the limits set by law, particularly, the limits of
jurisdiction. As earlier stated, under the Ombudsman's theory,
the administrative authorities may exercise administrative
jurisdiction over subordinates ad infinitum; thus, a public official
who has validly severed his ties with the civil service may still be
the subject of an administrative complaint up to his
deathbed. This is contrary to the law and the public policy behind
moot.
it.
Lastly, the State is not without remedy against Andutan or any
public official who committed violations while in office, but had
already resigned or retired therefrom. Under the "threefold
liability rule," the wrongful acts or omissions of a public officer
facin g
may give rise to civil, criminal and administrative liability.
[53] Even if the Ombudsman may no longer file an administrative
LAW O N P U B LI C O FFI C ER S
case against a public official who has already resigned or retired,
the Ombudsman may still file criminal and civil cases to vindicate
Andutan's alleged transgressions. In fact, here, the Ombudsman
- through the FFIB - filed a criminal case for Estafa and violations
of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices
Act against Andutan. If found guilty, Andutan will not only be
meted out the penalty of imprisonment, but also the penalties of
perpetual disqualification from office, and confiscation
forfeiture of any prohibited interest.
Conclusion
Public office is a public trust. No precept of administrative law is
more basic than this statement of what assumption of public
office involves. The stability of our public institutions relies on
the ability of our civil servants to serve their constituencies well.
While we commend the Ombudsman's resolve in pursuing the
present case for violations allegedly committed by Andutan, the
Court is compelled to uphold the law and dismiss the petition.
Consistent with our holding that Andutan is no longer the proper
subject of an administrative complaint, we find no reason to delve
on the Ombudsman's factual
WHEREFORE, we DENY the Office of the Ombudsman's
petition for review on certiorari, and AFFIRM the decision of the
Court of Appeals in CA-G.R. SP No. 68893, promulgated on July
28, 2004, which annulled and set aside the July 30, 2001 decision
of the Office of the Ombudsman, finding Uldarico P. Andutan,
Jr. guilty of Gross Neglect of
No pronouncement as to costs. SO ORDERED.
G.R. Nos. 217126-27, November 10, 2015
CONCHITA CARPIO MORALES, IN HER CAPACITY
AS THE OMBUDSMAN, PETITIONER, VS. COURT
OF APPEALS (SIXTH DIVISION) AND JEJOMAR
ERWIN S. BINAY, JR., RESPONDENTS.
D E CI SION
PERLAS-BERNABE, J.:
"All government is a trust, every branch of government is a trust, and
immemorially acknowledged so to be[.]"[1]
The Case
66 | P a g e
Before the Court is a petition for certiorari and prohibition [2] filed
on March 25, 2015 by petitioner Conchita Carpio Morales, in her
capacity as the Ombudsman (Ombudsman), through the Office
of the Solicitor General (OSG), assailing: (a) the Resolution [3]
dated March 16, 2015 of public respondent the Court of Appeals
(CA) in CA-G.R. SP No. 139453, which granted private
or respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for
[54] the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order[4] dated March 10, 20,15 of
the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive
suspension order) preventively suspending him and several other
public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution [5]
dated March 20, 2015 of the CA, ordering the Ombudsman to
comment on Binay, Jr.'s petition for contempt [6] in CA-G.R. SP
No. 139504.
Pursuant to the Resolution [7] dated April 6, 2015, the CA issued
a writ of preliminary injunction [8] (WPI) in CA-G.R. SP No.
139453 which further enjoined the implementation of the
findings. preventive suspension order, prompting the Ombudsman to file
a supplemental petition [9] on April 13, 2015.
The Facts
On July 22, 2014, a complaint/affidavit [10] was filed by Atty.
Renato L. Bondal and Nicolas "Ching" Enciso VI before the
Duty. Office of the Ombudsman against Binay, Jr. and other public
officers and employees of the City Government of Makati
(Binay, Jr., et al), accusing them of Plunder[11] and violation of
Republic Act No. (RA) 3019, [12] otherwise known as "The Anti-
Graft and Corrupt Practices Act," in connection with the five (5)
phases of the procurement and construction of the Makati City
Hall Parking Building (Makati Parking Building). [13]
On September 9, 2014, the Ombudsman constituted a Special
Panel of Investigators [14] to conduct a fact-finding investigation,
submit an investigation report, and file the necessary complaint,
if warranted (1st Special Panel).[15] Pursuant to the
Ombudsman's directive, on March 5, 2015, the 1st Special Panel
filed a complaint [16] (OMB Complaint) against Binay, Jr., et al,
charging them with six (6) administrative cases [17] for Grave
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the
Best Interest of the Service, and six (6) criminal cases [18] for
violation of Section 3 (e) of RA 3019, Malversation of Public
Funds, and Falsification of Public Documents (OMB Cases). [19]
LAW O N P U B LI C O FFI C ER S
As to Binay, Jr., the OMB Complaint alleged that he was
involved in anomalous activities attending the following
procurement and construction phases of the Makati Parking
Building project, committed during his previous and present
terms as City Mayor of Makati:
the remaining balance of the contract [48] with MANA
Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building
project in the amount of P429,011.48. [49]

On March 6, 2015, the Ombudsman created another Special

Binay, Jr.'s First Term (2010 to 2013) [20]
Panel of Investigators to conduct a preliminary investigation and
(a) On September 21, 2010, Binay, Jr. issued the Notice of
administrative adjudication on the OMB Cases (2 nd Special
Award [21] for Phase III of the Makati Parking Building project
Panel).[50] Thereafter, on March 9, 2015, the 2nd Special Panel
to Hilmarc's Construction Corporation (Hilmarc's), and
issued separate orders [51] for each of the OMB Cases, requiring
consequently, executed the corresponding contract [22] on
Binay, Jr., et al. to file their respective counter-affidavits.[52]
September 28, 2010,[23] without the required publication and the
lack of architectural design, [24] and approved the release of funds
Before Binay, Jr., et al.'s filing of their counter-affidavits, the
therefor in the following amounts as follows: (1)
Ombudsman, upon the recommendation of the 2 nd Special
P130,518,394.80 on December 15, 2010;[25] (2) P134,470,659.64
Panel, issued on March 10, 2015, the subject preventive
on January 19, 2011;[26] (3) P92,775,202.27 on February 25,
suspension order, placing Binay, Jr., et al. under preventive
2011;[27] (4) P57,148,625.51 on March 28, 2011;[28] (5)
suspension for not more than six (6) months without pay, during
P40,908,750.61 on May 3, 2011;[29] and (6) P106,672,761.90 on
the pendency of the OMB Cases. [53] The Ombudsman ruled that
July 7, 2011;[30]
the requisites for the preventive suspension of a public officer
are present,[54] finding that: (a) the evidence of Binay, Jr., et al.'s
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award [31]
guilt was strong given that (1) the losing bidders and members of
for Phase IV of the Makati Parking Building project to
the Bids and Awards Committee of Makati City had attested to
Hilmarc's, and consequently, executed the corresponding
the irregularities attending the Makati Parking Building project;
contract[32] on August 18, 2011,[33] without the required
(2) the documents on record negated the publication of bids; and
publication and the lack of architectural design, [34] and approved
(3) the disbursement vouchers, checks, and official receipts
the release of funds therefor in the following amounts as
showed the release of funds; and (b) (1) Binay, Jr., et al. were
follows: (1) P182,325,538.97 on October 4, 2O11; [35] (2)
administratively charged with Grave Misconduct, Serious
P173,132,606.91 on October 28,2011; [36] (3) P80,408,735.20 on
Dishonesty, and Conduct Prejudicial to the Best Interest of the
December 12, 2011;[37] (4) P62,878,291.81 on February 10,
Service; (2) said charges, if proven to be true, warrant removal
2012;[38] and (5) P59,639,167.90 on October 1, 2012; [39]
from public service under the Revised Rules on Administrative
Cases in the Civil Service (RRACCS), and (3) Binay, Jr., et al.'s
(c) On September 6, 2012, Binay, Jr. issued the Notice of
respective positions give them access to public records and allow
Award [40] for Phase V of the Makati Parking Building project to
them to influence possible witnesses; hence, their continued stay
Hilmarc's, and consequently, executed the corresponding
in office may prejudice the investigation relative to the OMB
contract[41] on September 13, 2012,[42] without the required
Cases filed against them. [55] Consequently, the Ombudsman
publication and the lack of architectural design, [43] and approved
directed the Department of Interior and Local Government
the release of the funds therefor in the amounts of
(DILG), through Secretary Manuel A. Roxas II (Secretary
P32,398,220.05[44] and P30,582,629.30[45] on December 20,
Roxas), to immediately implement the preventive suspension
2012; and
order against Binay, Jr., et al., upon receipt of the same. [56]

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

On March 11, 2015, a copy of the preventive suspension order
was sent to the Office of the City Mayor, and received by
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the
Maricon Ausan, a member of Binay, Jr.'s staff. [57]
release of funds for the remaining balance of the September 13,
2012 contract with Hilmarc's for Phase V of the Makati Parking
The Proceedings Before the CA
Building project in the amount of P27,443,629.97; [47] and

On even date,[58] Binay, Jr. filed a petition for certiorari[59] before

(e) On July 24, 2013, Binay, Jr. approved the release of funds for
67 | P a g e LAW O N P U B LI C O FFI C ER S
the CA, docketed as CA-G.R. SP No. 139453, seeking the
nullification of the preventive suspension order, and praying for
the issuance of a TRO and/or WPI to enjoin its
implementation.[60] Primarily, Binay, Jr. argued that he could
not be held administratively liable for any anomalous activity
attending any of the five (5) phases of the Makati Parking
Building project since: (a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases
III to V transpired during his first term and that his re-election
as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus
rendering the administrative cases against him moot and
academic.[61] In any event, Binay, Jr. claimed that the
Ombudsman's preventive suspension order failed to show
that the evidence of guilt presented against him is strong,
maintaining that he did not participate in any of the purported
irregularities.[62] In support of his prayer for injunctive relief,
Binay, Jr. argued that he has a clear and unmistakable right to
hold public office, having won by landslide vote in the 2010 and
2013 elections, and that, in view of the condonation doctrine, as
well as the lack of evidence to sustain the charges against him,
his suspension from office would undeservedly deprive the
electorate of the services of the person they have conscientiously
chosen and voted into office. [63]
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused
the implementation of the preventive suspension order through
the DILG National Capital Region - Regional Director, Renato
L. Brion, CESO III (Director Brion), who posted a copy thereof
on the wall of the Makati City Hall after failing to personally
serve the same on Binay, Jr. as the points of entry to the Makati
City Hall were closed. At around 9:47 a.m., Assistant City
Prosecutor of Makati Billy C. Evangelista administered the oath
of office on Makati City Vice Mayor Romulo V. Peña, Jr. (Peña,
Jr.) who thereupon assumed office as Acting Mayor.[64]
At noon of the same day, the CA issued a Resolution [65] (dated
March 16, 2015), granting Binay, Jr.'s prayer for a TRO, [66]
notwithstanding Pena, Jr.'s assumption of duties as Acting
Mayor earlier that day.[67] Citing the case of Governor Garcia, Jr. v.
CA,[68] the CA found that it was more prudent on its part to
issue a TRO in view of the extreme urgency of the matter and
seriousness of the issues raised, considering that if it were
established that the acts subject of the administrative cases
against Binay, Jr. were all committed during his prior term, then,
applying the condonation doctrine, Binay, Jr.'s re-election meant
that he can no longer be administratively charged. [69] The CA
then directed the Ombudsman to comment on Binay, Jr.'s
68 | P a g e
petition for certiorari. [70]
On March 17, 2015, the Ombudsman manifested [71] that the
TRO did not state what act was being restrained and that since
the preventive suspension order had already been served and
implemented, there was no longer any act to restrain.[72]
On the same day, Binay, Jr. filed a petition for
contempt,[73] docketed as CA-G.R. SP No. 139504, accusing
Secretary Roxas, Director Brion, the officials of the Philippine
National Police, and Pena, Jr. of deliberately refusing to obey the
CA, thereby allegedly impeding, obstructing, or degrading the
administration of justice. [74] The Ombudsman and Department
of Justice Secretary Leila M. De Lima were subsequently
impleaded as additional respondents upon Binay, Jr.'s filing of
the amended and supplemental petition for contempt [75] (petition
for contempt) on March 19, 2015. [76] Among others, Binay, Jr.
accused the Ombudsman and other respondents therein for
willfully and maliciously ignoring the TRO issued by the CA
against the preventive suspension order. [77]
In a Resolution[78] dated March 20, 2015, the CA ordered the
consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No.
139504, and, without necessarily giving due course to Binay,
Jr.'s petition for contempt, directed the Ombudsman to file
her comment thereto. [79] The cases were set for hearing of oral
arguments on March 30 and 31, 2015. [80]
The Proceedings Before the Court
Prior to the hearing of the oral arguments before the CA, or on
March 25, 2015, the Ombudsman filed the present petition
before this Court, assailing the CA's March 16, 2015 Resolution,
which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No.
139453, and the March 20, 2015 Resolution directing her to file a
comment on Binay, Jr.'s petition for contempt in CA-G.R. SP
No. 139504.[81] The Ombudsman claims that: (a) the CA had no
jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section
14 of RA 6770,[82] or "The Ombudsman Act of 1989," which
states that no injunctive writ could be issued to delay the
Ombudsman's investigation unless there is prima facie evidence
that the subject matter thereof is outside the latter's
jurisdiction;[83] and (b) the CA's directive for the Ombudsman to
comment on Binay, Jr.'s petition for contempt is illegal and
improper, considering that the Ombudsman is an impeachable
officer, and therefore, cannot be subjected to contempt
proceedings.[84]
LAW O N P U B LI C O FFI C ER S
In his comment [85] filed on April 6, 2015, Binay, Jr. argues that
Section 1, Article VIII of the 1987 Constitution specifically
grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the
Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in
this case when said office issued the preventive suspension order
against him.[86] Binay, Jr. posits that it was incumbent upon the
Ombudsman to1 have been apprised of the condonation
doctrine as this would have weighed heavily in determining
whether there was strong evidence to warrant the issuance of the
preventive suspension order. [87] In this relation, Binay, Jr.
maintains that the CA correctly enjoined the implementation of
the preventive suspension order given his clear and unmistakable
right to public office, and that it is clear that he could not be
held administratively liable for any of the charges against him
since his subsequent re-election in 2013 operated as a
condonation of any administrative offenses he may have
committed during his previous term. [88] As regards the CA's
order for the Ombudsman to comment on his petition for
contempt, Binay, Jr. submits that while the Ombudsman is
indeed an impeachable officer and, hence, cannot be removed
from office except by way of impeachment, an action for
contempt imposes the penalty of fine and imprisonment,
without necessarily resulting in removal from office. Thus, the
fact that the Ombudsman is an impeachable officer should not
deprive the CA of its inherent power to punish contempt. [89]
Meanwhile, the CA issued a Resolution[90] dated April 6, 2015,
after the oral arguments before it were held, [91] granting Binay,
Jr.'s prayer for a WPI, which further enjoined the
implementation of the preventive suspension order. In so ruling,
the CA found that Binay, Jr. has an ostensible right to the final
relief prayed for, namely, the nullification of the preventive
suspension order, in view of the condonation doctrine, citing
Aguinaldo v. Santos.[92] Particularly, it found that the
Ombudsman can hardly impose preventive suspension against
Binay, Jr. given that his re-election in 2013 as City Mayor of
Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building
project from 2007 to 2013. [93] In this regard, the CA added that,
although there were acts which were apparently committed by
Binay, Jr. beyond his first term — namely, the alleged payments
on July 3, July 4, and July 24, 2013, [94] corresponding to the
services of Hillmarc's and MANA - still, Binay, Jr. cannot be
held administratively liable therefor based on the cases of
Salalima v. Guingona, Jr.,[95] and Mayor Garcia v. Mojica[96]
wherein the condonation doctrine was still applied by the Court
69 | P a g e
although the payments were made after the official's re-election,
reasoning that the payments were merely effected pursuant to
contracts executed before said re-election.[97] To this, the CA
added that there was no concrete evidence of Binay, Jr.'s
participation for the alleged payments made on July 3, 4, and 24,
2013.[98]
In view of the CA's supervening issuance of a WPI pursuant to
its April 6, 2015 Resolution, the Ombudsman filed a
supplemental petition [99] before this Court, arguing that the
condonation doctrine is irrelevant to the determination of
whether the evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman also maintained
that a reliance on the condonation doctrine is a matter of
defense, which should have been raised by Binay, Jr. before it
during the administrative proceedings, and that, at any rate, there
is no condonation because Binay, Jr. committed acts subject of
the OMB Complaint after his re-election in 2013.[100]
On April 14 and 21, 2015,[101] the Court conducted hearings for
the oral arguments of the parties. Thereafter, they were required
to file their respective memoranda. [102] In compliance thereto,
the Ombudsman filed her Memorandum [103] on May 20, 2015,
while Binay, Jr. submitted his Memorandum the following
day.[104]
Pursuant to a Resolution [105] dated June 16, 2015, the Court
directed the parties to comment on each other's memoranda,
and the OSG to comment on the Ombudsman's Memorandum,
all within ten (10) days from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to
each other's memoranda.[106] Meanwhile, on July 16, 2015, the
OSG filed its Manifestation In Lieu of Comment, [107] simply
stating that it was mutually agreed upon that the Office of the
Ombudsman would file its Memorandum, consistent with its
desire to state its "institutional position."[108] In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the
Ombudsman pleaded, among others, that this Court abandon
the condonation doctrine. [109] In view of the foregoing, the case
was deemed submitted for resolution.
The Issues Before the Court
Based on the parties' respective pleadings, and as raised during
the oral arguments conducted before this Court, the main issues
to be resolved in seriatim are as follows:
LAW O N P U B LI C O FFI C ER S
 I. Whether or not the present petition, and not motions for
reconsideration of the assailed CA issuances in CA-G.R.
SP No. 139453 and CA-G.R. SP No. 139504, is the
Ombudsman's plain, speedy, and adequate remedy;
II. Whether or not the CA has subject matter jurisdiction
over the main petition for certiorari in CA-G.R. SP No.
139453;
III. Whether or not the CA has subject matter jurisdiction to
issue a TRO and/or WPI enjoining the implementation
of a preventive suspension order issued by the
Ombudsman;
IV. Whether or not the CA gravely abused its discretion in
issuing the TRO and eventually, the WPI in CA-G.R. SP
No. 139453 enjoining the implementation of the
preventive suspension order against Binay, Jr. based on
the condonation doctrine; and
V. Whether or not the CA's directive for the Ombudsman to
' comment on Binay, Jr.'s petition for contempt in CA-
G.R. SP No. 139504 is improper and illegal.
The Ruling of the Court
The petition is partly meritorious.
I.
A common requirement to both a petition for certiorari and a
petition for prohibition taken under Rule 65 of the 1997 Rules
of Civil Procedure is that the petitioner has no other plain,
speedy, and adequate remedy in the ordinary course of law.
Sections 1 and 2 thereof provide:
Section 1. Petition for certiorari. - When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board
or officer, and granting such incidental reliefs as law and justice
may require.
xx xx
70 | P a g e
Section 2. Petition for prohibition. - When the proceedings of
any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging
the facts r with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings
in the action or matter specified therein, or otherwise granting
such incidental reliefs as law and justice may require.
x x x x (Emphases supplied)
Hence, as a general rule, a motion for reconsideration must first
be filed with the lower court prior to resorting to the
extraordinary remedy of certiorari or prohibition since a motion
for reconsideration may still be considered as a plain, speedy,
and adequate remedy in the ordinary course of law. The rationale
for the pre-requisite is to grant an opportunity for the lower
court or agency to correct any actual or perceived error
attributed to it by the re-examination of the legal and factual
circumstances of the case. [110]
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the
mere absence of all other legal remedies and the danger of failure
of justice without the writ, that must usually determine the
propriety of certiorari [or prohibition]. A remedy is plain, speedy[,]
and adequate if it will promptly relieve the petitioner from the
injurious effects of the judgment, order, or resolution of the
lower court or agency, x x x."[111]
In this light, certain exceptions were crafted to the general rule
requiring a prior motion for reconsideration before the filing of
a petition for certiorari, which exceptions also apply to a petition
for prohibition.[112] These are: (a) where the order is a patent
nullity, as where the court a quo has no jurisdiction; (b) where the
questions raised in the certiorari proceedings have been duly
raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court; (c) where there
is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government or
of the petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration
would be useless; (e) where petitioner was deprived of due
process and there is extreme urgency for relief; (f) where, in a
LAW O N P U B LI C O FFI C ER S
criminal case, relief from an order of arrest is urgent and the The Ombudsman's argument against the CA's lack of subject
granting of such relief by the trial court is improbable; (g) where matter jurisdiction over the main petition, and her corollary
the proceedings in the lower court are a nullity for lack of due prayer for its dismissal, is based on her interpretation of Section
process; (h) where the proceedings were ex parte or in which the 14, RA 6770, or the Ombudsman Act, [118] which reads in full:
petitioner had no opportunity to object; and (i) where the issue
raised is one purely of law or where public interest is Section 14. Restrictions. - No writ of injunction shall be issued
involved.[113] by any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence
In this case, it is ineluctably clear that the above-highlighted that the subject matter of the investigation is outside the
exceptions attend since, for the first time, the question on the jurisdiction of the Office of the Ombudsman.
authority of the CA - and of this Court, for that matter - to
enjoin the implementation of a preventive suspension order No court shall hear any appeal or application for remedy against
issued by the Office of the Ombudsman is put to the fore. This the decision or findings of the Ombudsman, except the Supreme
case tests the constitutional and statutory limits of the Court, on pure question of law.
fundamental powers of key government institutions - namely,
the Office of the Ombudsman, the Legislature, and the Judiciary
The subject provision may be dissected into two (2) parts.
- and hence, involves an issue of transcendental public
importance that demands no less than a careful but expeditious
The first paragraph of Section 14, RA 6770 is a prohibition
resolution. Also raised is the equally important issue on the
against any court (except the Supreme Court [119]) from issuing a
propriety of the continuous application of the condonation
writ of injunction to delay an investigation being conducted by
doctrine as invoked by a public officer who desires exculpation
the Office of the Ombudsman. Generally speaking, "[injunction
from administrative liability. As such, the Ombudsman's direct
is a judicial writ, process or proceeding whereby a party is
resort to certiorari and prohibition before this Court,
ordered to do or refrain from doing a certain act. It may be the
notwithstanding her failure to move for the prior
main action or merely a provisional remedy for and as an
reconsideration of the assailed issuances in CA-G.R. SP No.
incident in the main action."[120] Considering the textual qualifier
139453 and CA-G.R. SP No. 139504 before the CA, is justified.
"to delay," which connotes a suspension of an action while the
main case remains pending, the "writ of injunction" mentioned
II.
in this paragraph could only refer to injunctions of the
provisional kind, consistent with the nature of a provisional
Albeit raised for the first time by the Ombudsman in her
injunctive relief.
Memorandum,[114] it is nonetheless proper to resolve the issue on
the CA's lack of subject matter jurisdiction over the main
The exception to the no injunction policy is when there is prima
petition for certiorari in CA-G.R. SP No. 139453, in view of the
facie evidence that the subject matter of the investigation is
well-established rule that a court's jurisdiction over the subject
outside the office's jurisdiction. The Office of the Ombudsman
matter may be raised at any stage of the proceedings. The
has disciplinary authority over all elective and appointive officials
rationale is that subject matter jurisdiction is conferred by law,
of the government and its subdivisions, instrumentalities, and
and the lack of it affects the very authority of the court to take
agencies, with the exception only of impeachable officers,
cognizance of and to render judgment on the action. [115] Hence,
Members of Congress, and the Judiciary. [121] Nonetheless, the
it should be preliminarily determined if the CA indeed had
Ombudsman retains the power to investigate any serious
subject matter jurisdiction over the main CA-G.R. SP No.
misconduct in office allegedly committed by officials removable
139453 petition, as the same determines the validity of all
by impeachment, for the purpose of filing a verified complaint
subsequent proceedings relative thereto. It is noteworthy to
for impeachment, if warranted. [122] Note that the Ombudsman
point out that Binay, Jr. was given the opportunity by this Court
has concurrent jurisdiction over certain administrative cases
to be heard on this issue, [116] as he, in fact, duly submitted his
which are within the jurisdiction of the regular courts or
opposition through his comment to the Ombudsman's
administrative agencies, but has primary jurisdiction to
Memorandum.[117] That being said, the Court perceives no
investigate any act or omission of a public officer or employee
reasonable objection against ruling on this issue.
who is under the jurisdiction of the Sandiganbayan. [123]

71 | P a g e LAW O N P U B LI C O FFI C ER S

On the other hand, the second paragraph of Section 14, RA
6770 provides that no appeal or application for remedy may be
heard against the decision or findings of the Ombudsman, with
the exception of the Supreme Court on pure questions of law.
This paragraph, which the Ombudsman particularly relies on in
arguing that the CA had no jurisdiction over the main CA-G.R.
SP No. 139453 petition, as it is supposedly this Court which has
the sole jurisdiction to conduct a judicial review of its decisions
or findings, is vague for two (2) reasons: (1) it is unclear what the
phrase "application for remedy" or the word "findings" refers to;
and (2) it does not specify what procedural remedy is solely
allowable to this Court, save that the same be taken only against
a pure question of law. The task then, is to apply the relevant
principles of statutory construction to resolve the am biguity.
"The underlying principle of all construction is that the intent of
the legislature should be sought in the words employed to
express it, and that when found[,] it should be made to govern, x
x x. If the words of the law seem to be of doubtful im port, it
may then perhaps become necessary to look beyond them in
order to ascertain what was in the legislative mind at the time the
law was enacted; what the circumstances were, under which the
action was taken; what evil, if any, was meant to be redressed; x
x x [a]nd where the law has contemporaneously been put into
operation, and in doing so a construction has necessarily been
put upon it, this construction, especially if followed for some
considerable period, is entitled to great respect, as being very
probably a true expression of the legislative purpose, and is not
lightly to be overruled, although it is not conclusive." [124]
As an aid to construction, courts may avail themselves of the
actual proceedings of the legislative body in interpreting a statute
of doubtful meaning. In case of doubt as to what a provision of
a statute means, the meaning put to the provision during the
legislative deliberations may be adopted, [125] albeit not controlling
in the interpretation of the law. [126]
A. The Senate deliberations cited by the
Ombudsman do not pertain to the second
paragraph of Section 14, RA 6770.
The Ombudsman submits that the legislative intent behind
Section 14, RA 6770, particularly on the matter of judicial review
of her office's decisions or findings, is supposedly clear from the
following Senate deliberations: [127]
72 | P a g e
Senator [Edgardo J.] Angara, x x x. On page 15, Mr.
President, line 14, after the phrase "petition for" delete the word
"review" and in lieu thereof, insert the word CERTIORARI. So
that, review or appeal from the decision of the Ombudsman
would only be taken not on a petition for review, but on certiorari.
The President [Jovito R. Salonga]. What is the practical
effect of that? Will it be more difficult to reverse the
decision under review?
Senator Angara. It has two practical effect ways, Mr. President.
First is that the findings of facts of the Ombudsman would
be almost conclusive if supported by substantial evidence.
Second, we would not unnecessarily clog the docket of the
Supreme Court. So, it in effect will be a very strict appeal
procedure.
xx xx
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that,
for example, if there are exhaustive remedies available to a
respondent, the respondent himself has the right to exhaust the
administrative remedies available to him?
Senator Angara. Yes, Mr. President, that is correct.
Senator Guingona. And he himself may cut the proceeding
short by appealing to the Supreme Court only on certiorari?
Senator Angara. On question of law, yes.
Senator Guingona. And no other remedy is available to
him?
Senator Angara. Going to the Supreme Court, Mr.
President?
Senator Guingona. Yes. What I mean to say is, at what stage,
for example, if he is a presidential appointee who is the
respondent, if there is f no certiorari available, is the respondent
given the right to exhaust his administrative remedies first before
the Ombudsman can take the appropriate action?
Senator Angara. Yes, Mr. President, because we do not intend
to change the administrative law principle that before one can go
to court, he must exhaust all administrative remedies xxx available to
him before he goes and seeks judicial review.
LAW O N P U B LI C O FFI C ER S
xx xx
Senator [Neptali A.] Gonzales. What is the purpose of the
Committee in changing the method of appeal from one of a
petition for review to a petition for certiorari?
Senator Angara. To make it consistent, Mr. President, with
the provision here in the bill to the effect that the finding of
facts of the Ombudsman is conclusive if supported by
substantial evidence.
Senator Gonzales. A statement has been made by the
Honorable Presiding Officer to which I concur, that in an
appeal by certiorari, the appeal is more difficult. Because in
certiorari it is a matter of discretion on the part of the court,
whether to give due course to the petition or dismiss it
outright. Is that not correct, Mr. President?
Senator Angara. That is absolutely correct, Mr. President
Senator Gonzales. And in a petition for certiorari, the issue
is limited to whether or not the Ombudsman here has acted
without jurisdiction and has committed a grave abuse of
discretion amounting to lack of jurisdiction. Is that not the
consequence, Mr. President.
Senator Angara. That is correct, Mr. President.
Senator Gonzales. And it is, therefore, in this sense that the
intention of the Committee is to make it harder to have a
judicial review, but should be limited only to cases that I have
enumerated.
Senator Angara. Yes, Mr. President.
Senator Gonzales. I think, Mr. President, our Supreme Court
has made a distinction between a petition for review and a
petition for certiorari; because before, under the 1935
Constitution appeal from any order, ruling or decision of the
COMELEC shall be by means of review. But under the
Constitution it is now by certiorari and the Supreme Court said
that by this change, the court exercising judicial review will not
inquire into the facts, into the evidence, because we will not go
deeply by way of review into the evidence on record but its
authority will be limited to a determination of whether the
administrative agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I assume that that
is the purpose of this amendment, Mr. President.
73 | P a g e
Senator Angara. The distinguished Gentleman has stated it so
well.
Senator Gonzales. I just want to put that in the Record. Senator
Angara. It is very well stated, Mr. President.
xx xx
The President. It is evident that there must be some final
authority to render decisions. Should it be the Ombudsman
or should it be the Supreme Court?
Senator Angara. As I understand it, under our scheme of
government, Mr. President, it is and has to be the Supreme
Court to make the final determination.
The President. Then if that is so, we have to modify Section
17.
Senator Angara. That is why, Mr. President, some of our
Colleagues have made a reservation to introduce an appropriate
change during the period of Individual Amendments.
xxxx
The President. All right. Is there any objection to the
amendment inserting the word CERTIORARI instead of
"review"? [Silence] Hearing none, the same is approved. [128]
Upon an assiduous scrutiny of these deliberations, the Court is,
however, unconvinced that the provision debated on was
Section 14, RA 6770, as the Ombudsman invokes. Note that the
exchange begins with the suggestion of Senator Angara to delete
the word "review" that comes after the phrase "petition for
review" and, in its stead, insert the word "certiorari" so that the
"review or appeal from the decision of the Ombudsman would
not only be taken on a petition for review, but on certiorari" The
ensuing exchange between Senators Gonzales and Angara then
dwells on the purpose of changing the method of review from
one of a petition for review to a petition for certiorari - that is, to
make "the appeal x x x more difficult." Ultimately, the
amendment to the change in wording, from "petition for review"
to "petition for certiorari" was approved.
Noticeably, these references to a "petition for review" and the
proposed "petition for certiorari" are nowhere to be found in the
LAW O N P U B LI C O FFI C ER S
text of Section 14, RA 6770. In fact, it was earlier mentioned that
this provision, particularly its second paragraph, does not
indicate what specific procedural remedy one should take in
assailing a decision or finding of the Ombudsman; it only reveals
that the remedy be taken to this Court based on pure questions
of law. More so, it was even commented upon during the oral
arguments of this case[129] that there was no debate or
clarification made on the current formulation of the second
paragraph of Section 14, RA 6770 per the available excerpts of
the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the
Ombudsman's entreaty that the CA had no subject matter
jurisdiction over the main CA-G.R. SP No. 139453 petition.
On the contrary, it actually makes greater sense to posit that
these deliberations refer to another Ombudsman Act provision,
namely Section 27, RA 6770. This is because the latter textually
reflects the approval of Senator Angara's suggested amendment,
i.e., that the Ombudsman's decision or finding may be assailed in
a petition for certiorari to this Court (fourth paragraph), and
further, his comment on the conclusive nature of the factual
findings of the Ombudsman, if supported by substantial
evidence (third paragraph):
Section 27. Effectivity and Finality of Decisions.— (1) All
provisionary orders of the Office of the Ombudsman are
immediately effective and executory.
or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition for
certiorari within ten (10) days from receipt of the written
notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of
the Rules of Court.
The above rules may be amended or modified by the Office of
the ' Ombudsman as the interest of justice may require.
(Emphasis and underscoring supplied)
At first blush, it appears that Section 27, RA 6770 is equally
ambiguous in stating that a "petition for certiorari" should be
taken in accordan ce with Rule 45 of the Rules of Court, as it is
well-known that under the present 1997 Rules of Civil
Procedure, petitions for certiorari are governed by Rule 65 of the
said Rules. However, it should be discerned that the
Ombudsman Act was passed way back in 1989[130] and, hence,
before the advent of the 1997 Rules of Civil Procedure. [131] At
that time, the governing 1964 Rules of Court,[132] consistent
with Section 27, RA 6770, referred to the appeal taken
thereunder as a petition for certiorari, thus possibly explaining
the remedy's textual denomination, at least in the provision's
final approved version:
RULE 45
Appeal from Court of Appeals to Supreme Court

A motion for reconsideration of any order, directive or decision

SECTION 1. Filing of Petition with Supreme Court. - A party may
of the Office of the Ombudsman must be filed within five (5)
appeal by certiorari, from a judgment of the Court of Appeals,
days after receipt of written notice and shall be entertained only
by filing with the Supreme Court a petition for certiorari ,
on any of the following grounds:
within fifteen (15) days from notice of judgment or of the denial
(1) New evidence has been discovered which materially affects
of his motion for reconsideration filed in due time, and paying at
the order, directive or decision;
the same time, to the clerk of said court the corresponding
docketing fee. The petition shall not be acted upon without
(2) Errors of law or irregularities have been committed
proof of service of a copy thereof to the Court of Appeals.
prejudicial to the interest of the movant. The motion for
(Emphasis supplied)
reconsideration shall be resolved within three (3) days from
filing: Provided, That only one motion for reconsideration shall be
B. Construing the second paragraph of
entertained.
Section 14, RA 6770.
Findings of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive. Any order, The Senate deliberations' lack of discussion on the second
directive or decision imposing the penalty of public censure or paragraph of Section 14, RA 6770 notwithstanding, the other
reprimand, suspension of not more than one (1) month's salary principles of statutory construction can apply to ascertain the
shall be final and unappealable. meaning of the provision.

In all administrative disciplinary cases, orders, directives, To recount, the second paragraph of Section 14, RA 6770 states

74 | P a g e LAW O N P U B LI C O FFI C ER S
that "[n]o court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question
of law." ; in the Court of Appeals, the clerk of the Supreme Court, upon
As a general rule, the second paragraph of Section 14, RA 6770
bans the whole range of remedies against issuances of the
Ombudsman, by prohibiting: (a) an appeal against any decision
or finding of the Ombudsman, and (b) "any application of
remedy" (subject to the exception below) against the same. To
clarify, the phrase "application for remedy," being a generally
worded provision, and being separated from the term "appeal"
by the disjunctive "or", [133] refers to any remedy (whether taken
mainly or provisionally), except an appeal, following the maxim
generalia verba sunt generaliter intelligenda: general words are to be
understood in a general sense. [134] By the same principle, the
word "findings," which is also separated from the word
"decision" by the disjunctive "or", would therefore refer to any
finding made by the Ombudsman (whether final or provisional),
except a decision.
The subject provision, however, crafts an exception to the
foregoing general rule. While the specific procedural vehicle is
not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable
remedy against "the decision or findings of the Ombudsman," a
Rule 45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of law,"
whether under the 1964 Rules of Court or the 1997 Rules of
Civil Procedure:
Rule 45, 1964 Rules of Court
RULE 45
Appeal from Court of Appeals to Supreme Court
xx xx
Section 2. Contents of Petition. — The petition shall contain a
concise statement of the matters involved, the assignment of
errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a
true copy of the judgment sought to be reviewed, together with
twelve (12) copies of the record on appeal, if any, and of the
petitioner's brief as filed in the Court of Appeals. A verified
statement of the date when notice of judgment and denial of the
motion for reconsideration, if any, were received shall
accompany the petition.
75 | P a g e
Only questions of law may be raised in the petition and
must be distinctly set forth. If no record on appeal has been filed
admission of the petition, shall demand from the Court of
Appeals the elevation of the whole record of the case. (Emphasis
and underscoring supplied)
Rule 45, 1997 Rules of Civil Procedure
RULE 45
Appeal by Certiorari to the Supreme Court
Section 1. Filing of petition with Supreme Court. - A party
desiring to appeal by certiorari from a judgment, final order or
resolution of the Court of Appeals, the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition may include
an application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek
the same provisional remedies by verified motion filed in the
same action or proceeding at any time during its pendency.
(Emphasis and underscoring supplied)
That the remedy excepted in the second paragraph of Section
14, RA 6770 could be a petition for certiorari under Rule 65 of the
1964 Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of procedure. It is basic
procedural law that a Rule 65 petition is based on errors of
jurisdiction, and not errors of judgment to which the
classifications of (a) questions of fact, (b) questions of law, or (c)
questions of mixed fact and law, relate to. In fact, there is no
procedural rule, whether in the old or new Rules, which grounds
a Rule 65 petition on pure questions of law. Indeed, it is also a
statutory construction principle that the lawmaking body cannot
be said to have intended the establishment of conflicting and
hostile systems on the same subject. Such a result would render
legislation a useless and idle ceremony, and subject the laws to
uncertainty and unintelligibility. [135] There should then be no
confusion that the second paragraph of Section 14, RA 6770
refers to a Rule 45 appeal to this Court, and no other. In sum,
the appropriate construction of this Ombudsman Act provision
is that all remedies against issuances of the Office of the
Ombudsman are prohibited, except the above-stated Rule 45
LAW O N P U B LI C O FFI C ER S
remedy to the Court on pure questions of law.
C. Validity of the second paragraph of
Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770's
extremely limited restriction on remedies is inappropriate since a
Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against
final decisions or orders of lower courts, [136] and not against
"findings" of quasi-judicial agencies. As will be later elaborated
upon, Congress cannot interfere with matters of procedure;
hence, it cannot alter the scope of a Rule 45 appeal so as to
apply to interlocutory "findings" issued by the Ombudsman.
More significantly, by confining the remedy to a Rule 45
appeal, the provision takes away the remedy of certiorari,
grounded on errors of jurisdiction, in denigration of the judicial
power constitutionally vested in courts. In this light, the second
paragraph of Section 14, RA 6770 also increased this Court's
appellate jurisdiction, without a showing, however, that it gave
its consent to the same. The provision is, in fact, very similar to
the fourth paragraph of Section 27, RA 6770 (as above-cited),
which was invalidated in the case of Fabian v. Desiertoni[137]
(Fabian).[138]
In Fabian, the Court struck down the fourth paragraph of
Section 27, RA 6770 as unconstitutional since it had the effect of
increasing the appellate jurisdiction of the Court without its
advice and concurrence in violation of Section 30, Article VI of
the 1987 Constitution. [139] Moreover, this provision was found to
be inconsistent with Section 1, Rule 45 of the present 1997 Rules
of Procedure which, as above-intimated, applies only to a review
of "judgments or final orders of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law;" and not of quasi-
judicial agencies, such as the Office of the Ombudsman, the
remedy now being a Rule 43 appeal to the Court of
Appeals. In Ruivivar v. Office of the Ombudsman,[140] the Court's
ratiocinations and ruling in Fabian were recounted:
The case of Fabian v. Desierto arose from the doubt created in the
application of Section 27 of R.A. No. 6770 (The Ombudsman's
Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure
of the Office of the Ombudsman) on the availability of appeal
before the Supreme Court to assail a decision or order of the
Ombudsman in administrative cases. In Fabian, we
invalidated Section 27 of R.A. No. 6770 (and Section 7, Rule
III of A.O. No. 7 and the other rules implementing the Act)
76 | P a g e
insofar as it provided for appeal by certiorari under Rule 45
from the decisions or orders of the Ombudsman in
administrative cases. We held that Section 27 of R.A. No.
6770 had the effect, not only of increasing the appellate
jurisdiction of this Court without its advice and
concurrence in violation of Section 30, Article VI of the
Constitution; it was also inconsistent with Section 1, Rule
45 of the Rules of Court which provides that a petition for
review on certiorari shall apply only to a review of
"judgments or final orders of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court, or other courts authorized by law." We
pointedly said:
As a consequence of our ratiocination that Section 27 of
Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy
adopted in appeals from quasi-judicial agencies in the 1997
Revised Rules of Civil Procedure, appeals from decisions of the
Office of the Ombudsman in administrative disciplinary cases
should be taken to the CA under the provisions of Rule 43. [141]
(Emphasis supplied)
Since the second paragraph of Section 14, RA 6770 limits the
remedy against "decision or findings" of the Ombudsman to a
Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770[142] - attempts to effectively increase the
Supreme Court's appellate jurisdiction without its advice and
concurrence,[143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary
to the Ombudsman's posturing, [144] Fabian should squarely apply
since the above-stated Ombudsman Act provisions are in part
materia in that they "cover the same specific or particular subject
matter,"[145] that is, the manner of judicial review over issuances
of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is
clearly determinative of the existence of the CA's subject matter
jurisdiction over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative thereto, as the
Ombudsman herself has developed, the Court deems it proper
to resolve this issue ex mero motu (on its own motion [146]). This
procedure, as was similarly adopted in Fabian, finds its bearings
in settled case law:
The conventional rule, however, is that a challenge on
constitutional grounds must be raised by a party to the case,
neither of whom did so in this case, but that is not an inflexible
LAW O N P U B LI C O FFI C ER S
rule, as we shall explain.
Since the constitution is intended for the observance of the
judiciary and other departments of the government and the
judges are sworn to support its provisions, the courts are not at
liberty to overlook or disregard its commands or countenance
evasions thereof. When it is clear , that a statute transgresses the
authority vested in a legislative body, it is the duty of the courts
to declare that the constitution, and not the statute, governs in a
case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional
questions which are not raised in the pleadings, the rule has been
recognized to admit of certain exceptions. It does not preclude a
court from inquiring into its own jurisdiction or compel it to
enter a judgment that it lacks jurisdiction to enter. If a statute on
which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding,
and since it may determine whether or not it has jurisdiction, it
necessarily follows that it may inquire into the constitutionality
of the statute.
Constitutional questions, not raised in the regular and
orderly procedure in the trial are ordinarily rejected unless
the jurisdiction of the court below or that of the appellate
court is involved in which case it may be raised at any time
or on the court's own motion. The Court ex mero motu may
take cognizance of lack of jurisdiction at any point in the case
where that fact is developed. The court has a clearly recognized
right to determine its own jurisdiction in any proceeding. [147]
(Emphasis supplied)
D. Consequence of invalidity.
In this case, the Rule 65 petition for certiorari in CA-G.R. SP No.
139453 was filed by Binay, Jr. before the CA in order to nullify
the preventive suspension order issued by the Ombudsman, an
interlocutory order,[148] hence, unappealable. [149]
In several cases decided after Fabian, the Court has ruled that
Rule 65 petitions for certiorari against unappelable issuances [150] of
the Ombudsman should be filed before the CA, and not directly
before this Court:
In Office of the Ombudsman v. Capulong [151] (March 12, 2014),
wherein a preventive suspension order issued by the Office of
the Ombudsman was - similar to this case - assailed through a
77 | P a g e
Rule 65 petition for certiorari filed by the public officer before the
CA, the Court held that "[t]here being a finding of grave abuse
of discretion on the part of the Ombudsman, it was certainly
imperative for the CA to grant incidental reliefs, as sanctioned by
Section 1 of Rule 65."[152]
In Dagan v. Office of the Ombudsman [153] (November 19, 2013),
involving a Rule 65 petition for certiorari assailing a final and
unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner
employed the correct mode of review in this case, i.e., a special
civil action for certiorari before the Court of Appeals."[154] In this
relation, it stated that while "a special civil action for Certiorari is
within the concurrent original jurisdiction of the Supreme Court
and the Court of Appeals, such petition should be initially filed
with the Court of Appeals in observance of the doctrine of
hierarchy of courts." Further, the Court upheld Barata v. Abalos,
Jr.[155] (June 6, 2001), wherein it was ruled that the remedy
against final and unappealable orders of the Office of the
Ombudsman in an administrative case was a Rule 65 petition to
the CA. The same verdict was reached in Ruivivar[156] (September
16, 2008).
Thus, with the unconstitutionality of the second paragraph of
Section 14, RA 6770, the Court, consistent with existing
jurisprudence, concludes that the CA has subject matter
jurisdiction over the main CA-G.R. SP No. 139453 petition.
That being said, the Court now examines the objections of the
Ombudsman, this time against the CA's authority to issue the
assailed TRO and WPI against the implementation of the
preventive suspension order, incidental to that main case.
III.
From the inception of these proceedings, the Ombudsman has
been adamant that the CA has no jurisdiction to issue any
provisional injunctive writ against her office to enjoin its
preventive suspension orders. As basis, she invokes the first
paragraph of Section 14, RA 6770 in conjunction with her
office's independence under the 1987 Constitution. She advances
the idea that "[i]n order to further ensure [her office's]
independence, [RA 6770] likewise insulated it from judicial
intervention,"[157] particularly, "from injunctive reliefs
traditionally obtainable from the courts,"[158] claiming that said
writs may work "just as effectively as direct harassment or
political pressure would."[159]
A. The concept of Ombudsman independence.
LAW O N P U B LI C O FFI C ER S

Section 5, Article XI of the 1987 Constitution guarantees the
independence of the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of
the Ombudsman, composed of the Ombudsman to be known
as Tanodbayan, one overall Deputy and at least one Deputy each
for Luzon, Visayas[,] and Mindanao. A separate Deputy for the
military establishment may likewise be appointed. (Emphasis
supplied)
In Gonzales III v. Office of the President [160] (Gonzales III), the Court
traced the historical underpinnings of the Office of the
Ombudsman:
Prior to the 1973 Constitution, past presidents established
several Ombudsman-like agencies to serve as the people's
medium for airing grievances and for direct redress against
abuses and misconduct in the government. Ultimately, however,
these agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance
of their function as government critic.
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to give
it political independence and adequate powers to enforce its
mandate. Pursuant to the ( 1973 Constitution, President
Ferdinand Marcos enacted Presidential Decree (PD) No. 1487,
as amended by PD No. 1607 and PD No. 1630, creating the
Office of the Ombudsman to be known as Tanodbayan. It was
tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any
government-owned or controlled corporation. When the Office
of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to
conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control
the prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the
1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the
state policy in Section 27, Article II and the standard of
accountability in public service under Section 1, Article XI of the
1987 Constitution. These provisions read:
78 | P a g e
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against
graft and corruption.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency;
act with patriotism and justice, and lead modest lives. [161]
(Emphasis supplied)
More significantly, Gonzales III explained the broad scope of the
office's mandate, and in correlation, the impetus behind its
independence:
Under Section 12, Article XI of the 1987 Constitution, the
Office of the Ombudsman is envisioned to be the "protector of
the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action
bureau. This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses , of
the bureaucracy. Pursuant to Section 13 (8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it
to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority;
Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of
the Government and its subdivisions, instrumentalities, and
agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an "activist watchman,"
the < Court has upheld its actions, although not squarely falling
under the broad powers granted [to] it by the Constitution and
by RA No. 6770, if these actions are reasonably in line with its
official function and consistent with the law and the
Constitution.
The Ombudsman's broad investigative and disciplinary powers
include all acts of malfeasance, misfeasance, and nonfeasance of
all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the Office of
the Ombudsman from the pressures and influence of
officialdom and partisan politics and from fear of external
LAW O N P U B LI C O FFI C ER S
reprisal by making it an "independent" office, x x x.
xx xx
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional
agency that is considered "a notch above other grievance-
handling investigative bodies." It has powers, both constitutional
and statutory, that are commensurate , with its daunting task of
enforcing accountability of public officers. [162] (Emphasis and
underscoring supplied)
Gonzales III is the first case which grappled with the meaning of
the Ombudsman's independence vis-a-vis the independence of
the other constitutional bodies. Pertinently, the Court observed:
(1) "[T]he independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares
certain characteristics - they do not owe their existence to any
act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms,
the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to
the extent that the absence of 'independence' would result in the
impairment of their core functions"[163];
(2) "[T]he Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed
in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent
constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal
autonomy and violative not only [of] the express mandate of
the Constitution, but especially as regards the Supreme Court, of
the independence and separation of powers upon which the
entire fabric of our constitutional system is based"; [164] and
(3) "[T]he constitutional deliberations explain the Constitutional
Commissions' need for independence. In the deliberations of the
1973 Constitution, the delegates amended the 1935 Constitution
by providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the premise
that the effectivity of this body is dependent on its freedom
from the tentacles of politics. In a similar manner, the
deliberations of the 1987 Constitution on the Commission on
Audit highlighted the developments in the past Constitutions
geared towards insulating the Commission on Audit from
79 | P a g e
political pressure."[165]
At bottom, the decisive ruling in Gonzales III, however, was that
the independence of the Office of the Ombudsman, as well as
that of the foregoing independent bodies, meant freedom from
control or supervision of the Executive Department:
[T]he independent constitutional commissions have been
consistently intended by the framers to be independent from
executive control or supervision or any form of political
influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted
to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990,
192 SCRA 358), we emphasized that the Constitutional
Commissions, which have been characteriz ed under the
Constitution as "independent," are not under the control of
the President, even if they discharge functions that are
executive in nature. The Court declared as unconstitutional the
President's act of temporarily appointing the respondent in that
case as Acting Chairman of the [Commission on Elections]
"however well-meaning" it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court
categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be
placed under the discretionary power of the President.
xx xx
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior - but is similar in
degree and kind - to the independence similarly guaranteed by
the Constitution to the Constitutional Commissions since all
these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper
functioning.[166] (Emphases and underscoring supplied)
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770,
which provides that "[a] Deputy or the Special Prosecutor, may
be removed from office by the President for any of the grounds
provided for the removal of the Ombudsman, and after due
process," partially unconstitutional insofar as it subjected the
Deputy Ombudsman to the disciplinary authority of the President
for violating the principle of independence. Meanwhile, the
validity of Section 8 (2), RA 6770 was maintained insofar as the
LAW O N P U B LI C O FFI C ER S
Office of the Special Prosecutor was concerned since said office
was not considered to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the
latter enjoys under the
As may be deduced from the various discourses in Gonzales III,
the concept of Ombudsman's independence covers three (3)
things:
First: creation by the Constitution, which means that the office
cannot be abolished, nor its constitutionally specified functions
and privileges, be removed, altered, or modified by law, unless the
Constitution itself allows, or an amendment thereto is made;
Second: fiscal autonomy, which means that the office "may not
be obstructed from [its] freedom to use or dispose of [its] funds
for purposes germane to [its] functions; [168] hence, its budget
cannot be strategically decreased by officials of the political
branches of government so as to impair said functions; and
Third: insulation from executive supervision and control,
which means that those within the ranks of the office can only be
disciplined by an internal
Evidently, all three aspects of independence intend to protect the
Office of the Ombudsman from political harassment and
pressure, so as to free it from the "insidious tentacles of
politics."[169]
That being the case, the concept of Ombudsman independence
cannot be invoked as basis to insulate the Ombudsman from
judicial power constitutionally vested unto the courts. Courts are
apolitical bodies, which are ordained to act as impartial tribunals
and apply even justice to all. Hence, the Ombudsman's notion that
it can be exempt from an incident of judicial power - that is, a
provisional writ of injunction against a preventive suspension
order - clearly strays from the concept's rationale of insulating the
office from political harassment
B. The first paragraph of Section
6770 in light of the powers of Congress and the
Court under the 1987
The Ombudsman's erroneous abstraction
independence notwithstanding, it remains that the first paragraph
of Section 14, RA 6770 textually prohibits courts from extending
provisional injunctive relief to delay any investigation conducted
by her office. Despite the usage of the general phrase "[n]o writ
80 | P a g e
of injunction shall be issued by any court," the Ombudsman
herself concedes that the prohibition does not cover the Supreme
Court.[170] As support, she cites the following Senate deliberations:
Constitution. [167]
Senator [Ernesto M.] Maceda. Mr. President, I do not know if
an amendment is necessary. I would just like to inquire for the
record whether below the Supreme Court, it is understood
that there is no injunction policy against the Ombudsman
by lower courts. Or, is it necessary to have a special
paragraph for that?
Senator Angara. Well, there is no provision here, Mr. President,
that will prevent an injunction against the Ombudsman being
issued.
Senator Maceda. In which case, I think that the intention,
this being one of the highest constitutional bodies, is to
subject this only to certiorari to the Supreme Court. I think
an injunction from the Supreme Court is, of course, in order
but no lower courts should be allowed to interfere. We had a
very bad experience with even, let us say, the Forestry Code where no injunction
is supposed to be issued against the Department of Natural Resources.
authority. Injunctions are issued right and left by RTC judges all over
the country.
The President. Why do we not make an express provision to
that effect?
Senator Angara. We would welcome that, Mr. President.
The President. No [writs of injunction] from the trial courts
other than the Supreme Court.
Senator Maceda. I so move, Mr. President, for that amendment.
The President. Is there any objection? [Silence] Hearing none, the
same is approved.[171]
or pressure.
Further, she acknowledges that by virtue of Sections 1 and 5 (1),
14, RA
Article VIII of the 1987 Constitution, acts of the Ombudsman,
including interlocutory orders, are subject to the Supreme Court's
Constitution.
power of judicial review As a corollary, the Supreme Court may
issue ancillary mjunctive writs or provisional remedies in the
of her office's
exercise of its power of judicial review over matters pertaining to
ongoing investigations by the Office of the Ombudsman.
Respecting the CA, however, the Ombudsman begs to differ. [172]
LAW O N P U B LI C O FFI C ER S
With these submissions, it is therefore apt to examine the validity
of the first paragraph of Section 14, RA 6770 insofar as it prohibits
all courts, except this Court, from issuing provisional writs of
injunction to enjoin an Ombudsman investigation. That the
constitutionality of this provision is the lis mota of this case has not
been seriously disputed. In fact, the issue anent
constitutionality was properly raised and presented during the
course of these proceedings. [173] More importantly, its resolution
is clearly necessary to the complete disposition of this case. [174]
In the enduring words of Justice Laurel in Angara v. The Electoral
Commission (Angara),[175] the "Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the executive,
the legislative[,] and the judicial departments of
government."[176] The constitutional demarcation of the three
fundamental powers of government is more commonly known as
the principle of separation of powers. In the landmark case of
Belgica v. Ochoa, Jr. (Belgica),[177] the Court held that "there is a
violation of the separation of powers principle when one branch
of government unduly encroaches on the domain of another." [178]
In particular, "there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of
another department's functions."[179]
Under Section 1, Article VIII of the 1987 Constitution, judicial
power is allocated to the Supreme Court and all such lower
courts:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.
This Court is the only court established by the Constitution, while
all other lower courts may be established by laws passed by
Congress. Thus, through the passage of Batas Pambansa Bilang
(BP) 129,[180] known as "The Judiciary Reorganization Act of
1980," the Court of Appeals, [181] the Regional Trial Courts, [182] and
the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts [183] were established. Later, through
the passage of RA 1125, [184] and Presidential Decree No. (PD)
1486,[185] the Court of Tax Appeals, and the Sandiganbayan were
81 | P a g e
respectively established.
In addition to the authority to establish lower courts, Sectio n
2, Article VIII of the 1987 Constitution empowers Congress to
define, prescribe, and apportion the jurisdiction of all courts,
its except that it may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Section 5 [186] of the
same Article:
Section 2. The Congress shall have the power to define, prescrib e,
' and apportion the jurisdiction of the various courts but may not
deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
the
xx xx
Jurisdiction, as hereinabove used, m ore accurately pertains to
jurisdiction over the subject matter of an action. In The Diocese of
Bacolod v. Commission on Elections,[187] subject matter jurisdiction was
defined as "the authority 'to hear and determine cases of the
general class to which the proceedings in question belong
and is conferred by the sovereign authority which organizes
the court and defines its powers.'"
Among others, Congress defined, prescribed, and apportioned the
subject matter jurisdiction of this Court (subject to the
aforementioned constitutional limitations), the Court of Appeals,
and the trial courts, through the passage of BP 129, as amended.
In this case, the basis for the CA's subject matter jurisdiction
over Binay, Jr.'s main petition for certiorari in CA-G.R. SP No.
139453 is Section 9(1), Chapter I of BP 129, as amended:
Section 9. Jurisdiction. - The Court of Appeals shall exercise:
1. Original jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus, and quo warranto, and
auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction[.]
Note that the CA's certiorari jurisdiction, as above-stated, is not
only original but also concurrent with the Regional Trial Courts
(under Section 21 (1), Chapter II of BP 129), and the Supreme
Court (under Section 5, Article VIII of the 1987 Philippine
Constitution). In view of the concurrence of these courts'
jurisdiction over petitions for certiorari, the doctrine of hierarchy
LAW O N P U B LI C O FFI C ER S
of courts should be followed. In People v. Cuaresma,[188] the
doctrine was explained as follows:
[T]his concurrence of jurisdiction is not x x x to be taken as
according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which applicatio n
therefor will be directed. There is after all a hierarchy of courts.
That hierarchy is determinative of the venue of appeals, and
should also serve as a general determinant of the appropriate
forum for petitions for the extraordinary writs. A becoming regard
for that judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court,
and those against the latter, with the Court of Appeals. [189]
When a court has subject matter jurisdiction over a particular
case, as conferred unto it by law, said court may then exercise its
jurisdiction acquired over that case, which is called judicial
power.
Judicial power, as vested in the Supreme Court and all other
courts established by law, has been defined as the "totality of
powers a court exercises when it assumes jurisdiction and
hears and decides a case."[190] Under Section 1, Article VIII of
the 1987 Constitution, it includes "the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government."
In Oposa v. Factoran, Jr.[191] the Court explained the expanded scope
of judicial power under the 1987 Constitution:
The first part of the authority represents the traditional concep t
of judicial power, involving the settlement of conflicting rights as
conferred by law. The second part of the authority represents a
broadening of f judicial power to enable the courts of justice to
review what was before forbidden territory, to wit, the discretio n
of the political departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even the
wisdom of the decisions of the executive and the legislature and
to declare their acts invalid for lack or excess of jurisdiction
because they are tainted with grave abuse of discretion. The catch ,
of course, is the meaning of "grave abuse of discretion," which is
82 | P a g e
a very elastic phrase that can expand or contract according to the
disposition of the judiciary. [192]
Judicial power is never exercised in a vacuum. A court's exercise
of the jurisdiction it has acquired over a particular case
conforms to the limits and parameters of the rules of
procedure duly promulgated by this Court. In other words,
procedure is the framework within which judicial power is
exercised. In Manila Railroad Co. v. Attorney-General,[193] the Court
elucidated that "[t]he power or authority of the court over the
subject matter existed and was fixed before procedure in a given
cause began. Procedure does not alter or change that power
or authority; it simply directs the manner in which it shall be
fully and justly exercised. To be sure, in certain cases, if that
power is not exercised in conformity with the provisions of the
procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. This does not mean that it loses
jurisdiction of the subject matter."[194]
While the power to define, prescribe, and apportion the
jurisdiction of the various courts is, by constitutional design,
vested unto Congress, the power to promulgate rules
concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts
belongs exclusively to this Court. Section 5 (5), Article VIII of
the 1987 Constitution reads:
Section 5. The Supreme Court shall have the following
powers:
x x x x
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such
rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved by the
Supreme Court. (Emphases and underscoring supplied)
In Echegaray v. Secretary of Justice [195] (Echegaray), the Court traced
the evolution of its rule-making authority, which, under the
1935[196] and 1973 Constitutions, [197] had been priorly subjected to
a power-sharing scheme with Congress. [198] As it now stands, the
LAW O N P U B LI C O FFI C ER S
1987 Constitution textually altered the old provisions by Court with Congress, more so with the Executive.[202]
deleting the concurrent power of Congress to amend the (Emphasis and underscoring supplied)
rules, thus solidifying in one body the Court's rule-making
powers, in line with the Framers' vision of institutionalizing a
Under its rule-making authority, the Court has periodically passed
"[s]tronger and more independent judiciary."[199]
various rules of procedure, among others, the current 1997 Rules
of Civil Procedure. Identifying the appropriate procedural
The records of the deliberations of the Constitutional
remedies needed for the reasonable exercise of every court's
Commission would show [200] that the Framers debated on
judicial power, the provisional remedies of temporary
whether or not the Court's rule-making powers should be shared
restraining orders and writs of preliminary injunction were
with Congress. There was an initial suggestion to insert the
thus provided.
sentence "The National Assembly may repeal, alter, or
supplement the said rules with the advice and concurrence of the
A temporary restraining order and a writ of preliminary injunction
Supreme Court", right after the phrase "Promulgate rules
both constitute temporary measures availed of during the
concerning the protection and enforcement of constitutional
pendency of the action. They are, by nature, ancillary because they
rights, pleading, practice, and procedure in all courts, the
are mere incidents in and are dependent upon the result of the
admission to the practice of law, the integrated bar, and legal
main action. It is well-settled that the sole object of a temporary
assistance to the underprivileged" in the enumeration of powers
restraining order or a writ of preliminary injunction, whether
of the Supreme Court. Later, Commissioner Felicitas S. Aquino
prohibitory or mandatory, is to preserve the status quo[203]
proposed to delete the former sentence and, instead, after the
until the merits of the case can be heard. They are usually granted
word "[underprivileged," place a comma (,) to be followed by "the
when it is made to appear that there is a substantial controversy
phrase with the concurren ce of the National Assembly."
between the parties and one of them is committing an act or
Eventually, a compromise formulation was reached wherein ( a)
threatening the immediate commission of an act that will cause
the Committee members agreed to Commissioner Aquino's
irreparable injury or destroy the status quo of the controversy
proposal to delete the phrase "the National Assembly may repeal,
before a full hearing can be had on the merits of the case. In other
alter, or supplement the said rules with the advice and
words, they are preservative remedies for the protection of
concurrence of the Supreme Court" and ( b) in turn,
substantive rights or interests, and, hence, not a cause of action in
Commissioner Aquino agreed to withdraw his proposal to add
itself, but merely adjunct to a main suit. [204] In a sense, they are
"the phrase with the concurren ce of the National Assembly." The
regulatory processes meant to prevent a case from being mooted
changes were approved, thereby leading to the present lack
by the interim acts of the parties.
of textual reference to any form of Congressional
participation in Section 5 (5), Article VIII, supra. The
Rule 58 of the 1997 Rules of Civil Procedure generally governs
prevailing consideration was that "both bodies, the Supreme
the provisional remedies of a TRO and a WPI. A preliminary
Court and the Legislature, have their inherent powers."[201]
injunction is defined under Section 1, [205] Rule 58, while Sectio n
3[206] of the same Rule enumerates the grounds for its issuance.
Thus, as it now stands, Congress has no authority to repeal, alter,
Meanwhile, under Section 5[207] thereof, a TRO may be issued as
or supplement rules concerning pleading, practice, and procedure.
a precursor to the issuance of a writ of preliminary injunction
As pronounced in Echegaray:
under certain procedural parameters.

The rule making power of this Court was expanded. This Court
The power of a court to issue these provisional injunctive reliefs
for the first time was given the power to promulgate rules
coincides with its inherent power to issue all auxiliary writs,
concerning the protection and enforcement of constitutional
processes, and other means necessary to carry its acquired
rights. The Court was also r granted for the first time the power
jurisdiction into effect under Section 6, Rule 135 of the Rules
to disapprove rules of procedure of special courts and quasi-
of Court which reads:
judicial bodies. But most importantly, the 1987 Constitution
took away the power of Congress to repeal, alter, or
Section 6. Means to carry jurisdiction into effect. - When by law
supplement rules concerning pleading, practice and
jurisdiction is conferred on a court or judicial officer, all auxiliary
procedure. In fine, the power to promulgate rules of
writs, f processes and other means necessary to carry it into effect
pleading, practice and procedure is no longer shared by this
83 | P a g e LAW O N P U B LI C O FFI C ER S
may be employed by such court or officer; and if the procedure to
be followed in the exercise of such jurisdiction is not specifically
pointed out by law [208] or by these rules, any suitable process or
mode of proceeding may be adopted which appears comfortable
to the spirit of the said law or rules.
In City of Manila v. Grecia-Cuerdo,[209] which is a case involving "[t]he
supervisory power or jurisdiction of the [Court of Tax Appeals]
to issue a writ of certiorari in aid of its appellate jurisdiction"[210]
over "decisions, orders or resolutions of the RTCs in local tax
cases originally decided or resolved by them in the exercise of their
original or appellate jurisdiction,"[211] the Court ruled that said
power "should coexist with, and be a complement to, its appellate
jurisdiction to review, by appeal, the final orders and decisions of
the RTC, in order to have complete supervision over the acts of
the latter:"[212]
A grant of appellate jurisdiction implies that there is included in it
the power necessary to exercise it effectively, to make all
orders that ; will preserve the subject of the action, and to
give effect to the final determination of the appeal. It carries
with it the power to protect that jurisdiction and to make the
decisions of the court thereunder effective. The court, in aid of its
appellate jurisdiction, has authority to control all auxiliary and
incidental matters necessary to the efficient and proper exercise
of that jurisdiction. For this purpose, it may, when necessary,
prohibit or restrain the performance of any act which might
interfere with the proper exercise of its rightful jurisdiction in
cases pending before it. [213] (Emphasis supplied)
In this light, the Court expounded on the inherent powers of a
court endowed with subject matter jurisdiction:
[A] court which is endowed with a particular jurisdiction should
have powers which are necessary to enable it to act effectively
within such jurisdiction. These should be regarded as powers
which are inherent in its jurisdiction and the court must
possess them in order to enforce its rules of practice and to
suppress any abuses of its process and to t defeat any
attempted thwarting of such process.
x x x x
Indeed, courts possess certain inherent powers which may be
said to be implied from a general grant of jurisdiction, in addition
to those expressly conferred on them. These inherent powers
are such powers as are necessary for the ordinary and
84 | P a g e
efficient exercise of jurisdiction; or are essential to the
existence, dignity and functions of the courts, as well as to
the due administration of justice; or are directly appropriate,
convenient and suitable to the execution of their granted
powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the
litigants.[214] (Emphases and underscoring supplied)
Broadly speaking, the inherent powers of the courts resonates the
long-entrenched constitutional principle, articulated way back in
the 1936 case of Angara, that "where a general power is conferred
or duty enjoined, every particular power necessary for the exercise
of the one or the performance of the other is also conferred." [215]
In the United States, the "inherent powers doctrine refers to the
principle, by which the courts deal with diverse matters over
which they are thought to have intrinsic authority like procedural
[rule-making] and general judicial housekeeping. To justify the
invocation or exercise of inherent powers, a court must show that
the powers are reasonably necessary to achieve the specific
purpose for which the exercise is sought. Inherent powers
enable the judiciary to accomplish its constitutionally
mandated functions."[216]
In Smothers v. Lewis [217] (Smothers), a case involving the
constitutionality of a statute which prohibited courts from
enjoining the enforcement of a revocation order of an alcohol
beverage license pending appeal, [218] the Supreme Court of
Kentucky held:
[T]he Court is x x x vested with certain "inherent" powers to
do that which is reasonably necessary for the administration
of justice within the scope of their jurisdiction. x x x [W]e said
while considering the rule making power and the judicial power
to be one and the same that ". . . the grant of judicial power
[rule making power] to the courts by the constitution carries
with it, as a necessary incident, the right to make that power
effective in the administration of justice." (Emphases
supplied)
Significantly, Smothers characterized a court's issuance of
provisional injunctive relief as an exercise of the court's inherent
power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally
impermissible:
LAW O N P U B LI C O FFI C ER S
It is a result of this foregoing line of thinking that we now adopt
the language framework of 28 Am.Jur.2d, Injunctions, Section 15,
and once and for all make clear that a court, once having obtained
jurisdiction of a cause of action, has, as an incidental to its
constitutional grant of power, inherent power to do all things
reasonably necessary to the administration of justice in the case
before it. In the exercise of this power, a court, when
necessary in order to protect or preserve the subject matter
of the litigation, to protect its jurisdiction and to make its
judgment effective, may grant or issue a temporary
injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this
particular instance the injunction, is exclusively within the
constitutional realm of the courts. As such, it is not within
the purview of the legislature to grant or deny the power nor
is it within the purview of the legislature to shape or fashion
circumstances under which this inherently judicial power
may be or may not be granted or denied.
This Court has historically recognized constitutional limitations
upon the power of the legislature to interfere with or to inhibit
the performance of constitutionally granted and inherently
provided judicial functions, x x x
x x x x
We reiterate our previously adopted language, ". . . a court, once
having obtained jurisdiction of a cause of action, has, as incidental
to its general jurisdiction, inherent power to do all things
reasonably necessary f to the administration of justice in the case
before it. . ." This includes the inherent power to issue
injunctions. (Emphases supplied)
Smothers also pointed out that the legislature's authority to provide
a right to appeal in the statute does not necessarily mean that it
could control the appellate judicial proceeding:
However, the fact that the legislature statutorily provided for this
appeal does not give it the right to encroach upon the
constitutionally granted powers of the judiciary. Once the
administrative action has ended and the right to appeal
arises the legislature is void of any right to control a
subsequent appellate judicial proceeding. The judicial rules
have come into play and have preempted the field.[219]
(Emphasis supplied)
85 | P a g e
With these considerations in mind, the Court rules that when
Congress passed the first paragraph of Section 14, RA 6770 and,
in so doing, took away from the courts their power to issue a TRO
and/or WPI to enjoin an investigation conducted by the
Ombudsman, it encroached upon this Court's constitutional rule-
making authority. Clearly, these issuances, which are, by nature,
provisional reliefs and auxiliary writs created under the provisions
of the Rules of Court, are matters of procedure which belong
exclusively within the province of this Court. Rule 58 of the Rules
of Court did not create, define, and regulate a right but merely
prescribed the means of implementing an existing right [220] since
it only provided for temporary reliefs to preserve the applicant's
right in esse which is threatened to be violated during the course
of a pending litigation. In the case of Fabian,[221] it was stated that:
If the rule takes away a vested right, it is not procedural. If the rule
creates a right such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of implementing
an existing right then the rule deals merely with procedure.
Notably, there have been similar attempts on the part of Congress,
in the exercise of its legislative power, to amend the Rules of
Court, as in the cases of: (a) In Re: Exemption of The National Power
Corporation from Payment of Filing/ Docket Fees;[222] (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System
(GSIS) from Payment of Legal Fees; [223] and (c) Baguio Market Vendors
Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes[224]
While these cases involved legislative enactments exempting
government owned and controlled corporations and cooperatives
from paying filing fees, thus, effectively modifying Rule 141 of the
Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled that
the prerogative to amend, repeal or even establish new rules
of procedure[225] solely belongs to the Court, to the exclusion
of the legislative and executive branches of government. On
this score, the Court described its authority to promulgate rules
on pleading, practice, and procedure as exclusive and "[o]ne of
the safeguards of [its] institutional independence."[226]
That Congress has been vested with the authority to define,
prescribe, and apportion the jurisdiction of the various courts
under Section 2, Article VIII supra, as well as to create statutory
courts under Section 1, Article VIII supra, does not result in an
abnegation of the Court's own power to promulgate rules of
pleading, practice, and procedure under Section 5 (5), Article VIII
supra. Albeit operatively interrelated, these powers are
nonetheless institutionally separate and distinct, each to be
LAW O N P U B LI C O FFI C ER S
preserved under its own sphere of authority. When Congress JUSTICE LEONEN:
creates a court and delimits its jurisdiction, the procedure Okay. Now, would you know what rule covers injunction in the
for which its jurisdiction is exercised is fixed by the Court Rules of Court?
through the rules it promulgates. The first paragraph of Sectio n
14, RA 6770 is not a jurisdiction-vesting provision, as the ACTING SOLICITOR GENERAL HILBAY:
Ombudsman misconceives, [227] because it does not define, Rule 58, Your Honor.
prescribe, and apportion the subject matter jurisdiction of courts
to act on certiorari cases; the certiorari jurisdiction of courts, JUSTICE LEONEN:
particularly the CA, stands under the relevant sections of BP 129 58, that is under the general rubric if Justice Bersamin will
which were not shown to have been repealed. Instead, through correct me if I will be mistaken under the rubric of what is called
this provision, Congress interfered with a provisional remedy provisional remedies, our resident expert because Justice Peralta
that was created by this Court under its duly promulgated is not here so Justice Bersamin for a while. So provisional
rules of procedure, which utility is both integral and inherent remedy you have injunction, x x x.
to every court's exercise of judicial power. Without the
Court's consent to the proscription, as may be manifested by xx xx
an adoption of the same as part of the rules of procedure
through an administrative circular issued therefor, there JUSTICE LEONEN:
thus, stands to be a violation of the separation of powers Okay, Now, we go to the Constitution. Section 5, subparagraph
principle. 5 of Article VIII of the Constitution, if you have a copy of the
Constitution, can you please read that provision? Section 5,
In addition, it should be pointed out that the breach of Congress Article VIII the Judiciary subparagraph 5, would you kindly read
in prohibiting provisional injunctions, such as in the first that provision?
paragraph of Section 14, RA 6770, does not only undermine the
constitutional allocation of powers; it also practically dilutes a ACTING SOLICTOR GENERAL HILBAY.
court's ability to carry out its functions. This is so since a "Promulgate rules concerning the protection and enforcement of
particular case can easily be mooted by supervening events constitutional rights, pleading, practice and procedure in all
if no provisional injunctive relief is extended while the court courts..."
is hearing the same. Accordingly, the court's acquired
jurisdiction, through which it exercises its judicial power, is JUSTICE LEONEN:
rendered nugatory. Indeed, the force of judicial power, especially Okay, we can stop with that, promulgate rules concerning
under the present Constitution, cannot be enervated due to a pleading, practice and procedure in all courts. This is the power,
court's inability to regulate what occurs during a proceeding's the competence, the jurisdiction of what constitutional organ?
course. As earlier intimated, when jurisdiction over the subject
matter is accorded by law and has been acquired by a court, its ACTING SOLICITOR GENERAL HILBAY:
exercise thereof should be undipped. To give true meaning to the The Supreme Court, Your Honor.
judicial power contemplated by the Framers of our Constitution,
the Court's duly promulgated rules of procedure should therefore JUSTICE LEONEN:
remain unabridged, this, even by statute. Truth be told, the policy The Supreme Court. This is different from Article VIII Sections
against provisional injunctive writs in whatever variant should 1 and 2 which we've already been discussed with you by my
only subsist under rules of procedure duly promulgated by the other colleagues, is that not correct?
Court given its sole prerogative over the same.
ACTING SOLICITOR GENERAL HILBAY:
The following exchange between Associate Justice Marvic Mario Correct, Your Honor.
Victor F. Leonen (Justice Leonen) and the Acting Solicito r
General Florin T. Hilbay (Acting Solicitor General Hilbay) JUSTICE LEONEN:
mirrors the foregoing observations: Okay, so in Section 2, [apportion] jurisdiction that is the power
of Congress, is that not correct?

86 | P a g e LAW O N P U B LI C O FFI C ER S
ACTING SOLICITOR GENERAL HILBAY: What about bill [of] particulars, can Congress say, no Court shall
Correct, Your Honor. have the power to issue the supplemental pleading called the bill
of t particular [s]? It cannot, because that's part of procedure...
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the ACTING SOLICITOR GENERAL HILBAY:
Court, is that not correct? That is true.

ACTING SOLICITOR GENERAL HILBAY: JUSTICE LEONEN

Correct, Your Honor. ...or for that matter, no Court shall act on a Motion to Quash, is
that not correct?
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a ACTING SOLICITOR GENERAL HILBAY:
separate case or is it part of litigation in an ordinary case? Correct.

ACTING SOLICITOR GENERAL HILBAY: JUSTICE LEONEN:

It is an ancillary remedy, Your Honor. So what's different with the writ of injunction?

JUSTICE LEONEN: ACTING SOLICITOR GENERAL HILBAY:

In fact, it originated as an equitable remedy, is that not correct? Writ of injunction, Your Honor, requires the existence of
jurisdiction on the part of a court that was created by Congress.
ACTING SOLICITOR GENERAL HILBAY: In the absence of jurisdiction... (interrupted)
Correct, Your Honor.
JUSTICE LEONEN:
JUSTICE LEONEN: No, writ of injunction does not attach to a court. In other words,
In order to preserve the power of a court so that at the end when they create a special agrarian court it has all procedures
of litigation, it will not be rendered moot and academic, is with it but it does not attach particularly to that particular court,
that not correct? is that not correct?

ACTING SOLICITOR GENERAL HILBAY: ACTING SOLICTOR GENERAL HILBAY:

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

JUSTICE LEONEN: JUSTICE LEONEN:

In that view, isn't Section 14, first paragraph, unconstitutional? Again, Counsel, what statute provides for a TRO, created the
concept of a TRO? It was a Rule. A rule of procedure and the
ACTING SOLICITOR GENERAL HILBAY: Rules of Court, is that not correct?
No, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
xx xx Yes, Your Honor.

JUSTICE LEONEN. JUSTICE LEONEN:

Can Congress say that a Court cannot prescribe Motions to And a TRO and a writ of preliminary injunction does not exist
Dismiss under Rule 16? unless it is [an] ancillary to a particular injunction in a court, is
that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of the Court to ACTING SOLICITOR GENERAL HILBAY:
create remedies, x x x. Correct, Your Honor.

JUSTICE LEONEN. xxxx[228] (Emphasis supplied)

87 | P a g e LAW O N P U B LI C O FFI C ER S

In Biraogo v. The Philippine Truth Commission of 2010, [229] the Court
instructed that "[i]t is through the Constitution that the
fundamental powers of government are established, limited and
defined, and by which these powers are distributed among the
several departments. The Constitution is the basic and
paramount law to which all other laws must conform and to
which all persons, including the highest officials of the land,
must defer." It would then follow that laws that do not conform
to the Constitution shall be stricken down for being
unconstitutional. [230]
However, despite the ostensible breach of the separation of
powers principle, the Court is not oblivious to the policy
considerations behind the first paragraph of Section 14, RA
6770, as well as other statutory provisions of similar import.
Thus, pending deliberation on whether or not to adopt the same,
the Court, under its sole prerogative and authority over all
matters of procedure, deems it proper to declare as ineffective
the prohibition against courts other than the Supreme Court
from issuing provisional injunctive writs to enjoin investigations
conducted by the Office of the Ombudsman, until it is adopted
as part of the rules of procedure through an administrative
circular duly issued therefor.
Hence, with Congress interfering with matters of procedure
(through passing the first paragraph of Section 14, RA 6770)
without the Court's consent thereto, it remains that the CA had
the authority to issue the questioned injunctive writs enjoining
the implementation of the preventive suspension order against
Binay, Jr. At the risk of belaboring the point, these issuances
were merely ancillary to the exercise of the CA's certiorari
jurisdiction conferred to it under Section 9 (1), Chapter I of BP
129, as amended, and which it had already acquired over the
main CA-G.R. SP No. 139453 case.
IV.
The foregoing notwithstanding, the issue of whether or not the
CA gravely abused its jurisdiction in issuing the TRO and WPI
in CA-G.R. SP No. 139453 against the preventive suspension
order is a persisting objection to the validity of said injunctive
writs. For its proper analysis, the Court first provides the context
of the assailed injunctive writs.
A. Subject matter of the CA's iniunctive writs is the
preventive suspension order.
88 | P a g e
By nature, a preventive suspension order is not a penalty but
only a preventive measure. In Quimbo v. Acting Ombudsman
Gervacio,[231] the Court explained the distinction, stating that its
purpose is to prevent the official to be suspended from
using his position and the powers and prerogatives of his
office to influence potential witnesses or tamper with
records which may be vital in the prosecution of the case
against him:
Jurisprudential law establishes a clear-cut distinction between
suspension as preventive measure and suspension as penalty.
The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends
sought to be achieved.
Preventive suspension is merely a preventive measure, a
preliminary step in an administrative investigation. The
purpose of the suspension order is to prevent the accused
from using his position and the powers and prerogatives of
his office to influence potential witnesses or tamper with
records which may be vital in the prosecution of the case
against him. If after such investigation, the charge is established
and the person investigated is found guilty of acts warranting his
suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly
provided by Section 24 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987
(Executive Order No. 292) and other Pertinent Civil Service
Laws.
Section. 24. Preventive suspension is not a punishment or
penalty for misconduct in office but is considered to be a
preventive measure. (Emphasis supplied)
Not being a penalty, the period within which one is under
preventive suspension is not considered part of the actual
penalty of suspension. So Section 25 of the same Rule XIV
provides:
Section 25. The period within which a public officer or employee
charged is placed under preventive suspension shall not be
considered part of the actual penalty of suspension imposed
upon the employee found guilty. [232] (Emphases supplied)
The requisites for issuing a preventive suspension order are
explicitly stated in Section 24, RA 6770:
LAW O N P U B LI C O FFI C ER S
Section 24. Preventive Suspension. - The Ombudsman or his
Deputy may preventively suspend any officer or employee under
his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such
officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the
case filed against him.
The preventive suspension shall continue until the case is
terminated by the Office of the Ombudsman but not more than
six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due
to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing
the period of suspension herein provided. (Emphasis and
underscoring supplied)
In other words, the law sets forth two (2) conditions that must
be satisfied to justify the issuance of an order of preventive
suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first
requirement:
(a) The charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty;
(b) The charge would warrant removal from the service; or
(c) The respondent's continued stay in office may prejudice the
case filed against him.[233]
B. The basis of the CA's injunctive writs is the condonation
doctrine.
Examining the CA's Resolutions in CA-G.R. SP No. 139453
would, however, show that the Ombudsman's non-compliance
with the requisites provided in Section 24, RA 6770 was not the
basis for the issuance of the assailed injunctive writs.
The CA's March 16, 2015 Resolution which directed the issuance
of the assailed TRO was based on the case of Governor Garcia,
Jr. v. CA [234] (Governor Garcia, Jr.), wherein the Court emphasized
that "if it were established in the CA that the acts subject of the
89 | P a g e
administrative complaint were indeed committed during
petitioner [Garcia's] prior term, then, following settled
jurisprudence, he can no longer be administratively charged." [235]
Thus, the Court, contemplating the application of the
condonation doctrine, among others, cautioned, in the said case,
that "it would have been more prudent for [the appellate court] to
have, at the very least, on account of the extreme urgency of the
matter and the seriousness of the issues raised in the certiorari
petition, issued a TRO x x x"[236] during the pendency of the
proceedings.
Similarly, the CA's April 6, 2015 Resolution which directed the
issuance of the assailed WPI was based on the condonation
doctrine, citing the case of Aguinaldo v. Santos[237] The CA held
that Binay, Jr. has an ostensible right to the final relief prayed for,
i.e., the nullification of the preventive suspension order, finding
that the Ombudsman can hardly impose preventive suspension
against Binay, Jr. given that his re-election in 2013 as City Mayor
of Makati condoned any administrative liability arising from
anomalous activities relative to the Makati Parking Building
project from 2007 to 2013. [238] Moreover, the CA observed that
although there were acts which were apparently committed by
Binay, Jr. beyond his first term , i.e., the alleged payments on July
3, 4, and 24, 2013,[239] corresponding to the services of Hillmarc's
and MANA - still, Binay, Jr. cannot be held administratively liable
therefor based on the cases of Salalima v. Guingona, Jr.,[240] and
Mayor Garcia v. Mojica,[241] wherein the condonation dobtrine
was applied by the Court although the payments were made after
the official's election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election.[242]
The Ombudsman contends that it was inappropriate for the CA
to have considered the condonation doctrine since it was a matter
of defense which should have been raised and passed upon by her
office during the administrative disciplinary proceedings. [243]
However, the Court agrees with the CA that it was not precluded
from considering the same given that it was material to the
propriety of according provisional injunctive relief in conformity
with the ruling in Governor Garcia, Jr., which was the subsisting
jurisprudence at that time. Thus, since condonation was duly
raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,[244]
the CA did not err in passing upon the same. Note that although
Binay, Jr. secondarily argued that the evidence of guilt against him
was not strong in his petition in CA-G.R. SP No. 139453,[245] it
appears that the CA found that the application of the condonation
doctrine was already sufficient to enjoin the implementation of
the preventive suspension order. Again, there is nothing aberran t
with this since, as remarked in the same case of Governor Garcia,
LAW O N P U B LI C O FFI C ER S
Jr., if it was established that the acts subject of the administrative
complaint were indeed committed during Binay, Jr.'s prior term,
then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation
having been invoked by Binay, Jr. as an exculpatory affirmative
defense at the onset, the CA deemed it unnecessary to determine
if the evidence of guilt against him was strong, at least for the
purpose of issuing the subject injunctive
With the preliminary objection resolved and the basis of the
assailed writs herein laid down, the Court now proceeds to
determine if the CA gravely abused its discretion in applying the
condonation
C. The origin of the condonation
Generally speaking, condonation has been defined as "[a] victim's
express or implied forgiveness of an offense, [especially] by
treating the offender as if there had been no offense."[246]
The condonation doctrine - which connotes this same sense of
complete extinguishment of liability as will be herein elaborated
upon - is not based on statutory law. It is a jurisprudential creatio n
that originated from the 1959 case of Pascual v. Hon.
Provincial Board of Nueva Ecija,[247] (Pascual), which was therefore
decided under the 1935
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor
of San Jose, Nueva Ecija, sometime in November 1951, and was
later re-elected to the same position in 1955. During his second
term, or on October 6, 1956, the Acting Provincial Governor
filed administrative charges before the Provincial Board of
Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint
in Criminal Case No. 3556 on December 18 and 20, 1954. In
defense, Arturo Pascual argued that he cannot be made liable for
the acts charged against him since they were committed during his
previous term of office, and therefore, invalid grounds for
disciplining him during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija, later decided
against Arturo Pascual, and when the case reached this Court on
appeal, it recognized that the controversy posed a novel issue -
that is, whether or not an elective official may be disciplined for a
wrongful act committed by him during his immediately precedin g
term of
As there was no legal precedent on the issue at that time, the
Court, in Pascual, resorted to American authorities and "found
90 | P a g e
that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in
part, to a divergence of views with respect to the question of
whether the subsequent election or appointment condones the
prior misconduct."[248] Without going into the variables of
these conflicting views and cases, it proceeded to state that:
writs. The weight of authorities x x x seems to incline toward the
rule denying the right to remove one from office because of
misconduct during a prior term, to which we fully
subscribe.[249] (Emphasis and underscoring supplied)
doctrine.
The conclusion is at once problematic since this Court has now
uncovered that there is really no established weight of authority in
doctrine.
the United States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an official's re-
election denies the right to remove him from office due to a
misconduct during a prior term. In fact, as pointed out during the
oral arguments of this case, at least seventeen (17) states in the US
have abandoned the condonation doctrine. [250] The Ombudsman
aptly cites several rulings of various US State courts, as well as
literature published on the matter, to demonstrate the fact that the
doctrine is not uniformly applied across all state jurisdictions.
Indeed, the treatment is nuanced:
Constitution.
(1) For one, it has been widely recognized that the propriety of
removing a public officer from his current term or office for
misconduct which he allegedly committed in a prior term of office
is governed by the language of the statute or constitutional
provision applicable to the facts of a particular case (see In Re
Removal of Member of Council Coppola).[251] As an example, a Texas
statute, on the one hand, expressly allows removal only for an act
committed during a present term: "no officer shall be prosecuted
or removed from office for any act he may have committed prior
to his election to office" (see State ex rel. Rowlings v. Loomis).[252] On
the other hand, the Supreme Court of Oklahoma allows removal
from office for "acts of commission, omission, or neglect
committed, done or omitted during a previous or preceding term
of office" (see State v. Bailey)[253] Meanwhile, in some states where
the removal statute is silent or unclear, the case's resolution was
contingent upon the interpretation of the phrase "in office." On
one end, the Supreme Court of Ohio strictly construed a removal
statute containing the phrase "misfeasance of malfeasance in
office" and thereby declared that, in the absence of clear legislative
office.
language making, the word "office" must be limited to the single
term during which the offense charged against the public officer
occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
LAW O N P U B LI C O FFI C ER S
County)[254] Similarly, the Common Pleas Court of Allegheny
County, Pennsylvania decided that the phrase "in office" in its
state constitution was a time limitation with regard to the grounds
of removal, so that an officer could not be removed for
misbehaviour which occurred; prior to the taking of the office (see
Commonwealth v. Rudman)[255] The opposite was construed in the
Supreme Court of Louisiana which took the view that an officer's
inability to hold an office resulted from the commission of certain
offenses, and at once rendered him unfit to continue in office,
adding the fact that the officer had been re-elected did not
condone or purge the offense (see State ex rel. Billon v. Bourgeois).[256]
Also, in the Supreme Court of New York, Apellate Division,
Fourth Department, the court construed the words "in office" to
refer not to a particular term of office but to an entire tenure; it
stated that the whole purpose of the legislature in enacting the
statute in question could easily be lost sight of, and the intent of
the law-making body be thwarted, if an unworthy official could
not be removed during one term for misconduct for a previous
one (Newman v. Strobel).[257]
(2) For another, condonation depended on whether or not the
public officer was a successor in the same office for which he has
been administratively charged. The "own-successor theory,"
which is recognized in numerous States as an exception to
condonation doctrine, is premised on the idea that each term of a
re-elected incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office. Thus,
infractions committed in a previous term are grounds for removal
because a re-elected incumbent has no prior term to speak of [258]
(see Attorney-General v. Tufts;[259] State v. Welsh;[260] Hawkins v.
Common Council of Grand Rapids; [261] Territory v. Sanches; [262] and Tibbs
v. City of Atlanta).[263]
(3) Furthermore, some State courts took into consideration the
continuing nature of an offense in cases where the condonation
doctrine was invoked. In State ex rel. Douglas v. Megaarden, [264] the
public officer charged with malversation of public funds was
denied the defense of condonation by the Supreme Court of
Minnesota, observing that "the large sums of money illegally
collected during the previous years are still retained by him." In
State ex rel. Beck v. Harvey [265] the Supreme Court of Kansas ruled
that "there is no necessity" of applying the condonation doctrin e
since "the misconduct continued in the present term of office[;]
[thus] there was a duty upon defendant to restore this money on
demand of the county commissioners." Moreover, in State ex rel.
Londerholm v. Schroeder, [266] the Supreme Court of Kansas held that
"insofar as nondelivery and excessive prices are concerned, x x x
there remains a continuing duty on the part of the defendant to
91 | P a g e
make restitution to the country x x x, this duty extends into the
present term, and neglect to discharge it constitutes misconduct."
Overall, the foregoing data clearly contravenes the preliminary
conclusion in Pascual that there is a "weight of authority" in the
US on the condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for the numerous
factors relevant to the debate on condonation, an outright
adoption of the doctrine in this jurisdiction would not have been
proper.
At any rate, these US cases are only of persuasive value in the
process of this Court's decision-making. "[They] are not relied
upon as precedents, but as guides of interpretation." [267]
Therefore, the ultimate analysis is on whether or not the
condonation doctrine, as espoused in Pascual, and carried over in
numerous cases after, can be held up against prevailing legal
norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. As adjudged in the case of
Belgica, the stare decisis rule should not operate when there are
powerful countervailing considerations against its application. [268]
In other words, stare decisis becomes an intractable rule only
when circumstances exist to preclude reversal of standing
precedent.[269] As the Ombudsman correctly points out,
jurisprudence, after all, is not a rigid, atemporal abstraction; it is
an organic creature that develops and devolves along with the
society within which it thrives.[270] In the words of a recent US
Supreme Court Decision, "[w]hat we can decide, we can
undecide."[271]
In this case, the Court agrees with the Ombudsman that since the
time Pascual was decided, the legal landscape has radically shifted.
Again, Pascual was a 1959 case decided under the 1935
Constitution, which dated provisions do not reflect the experien ce
of the Filipino People under the 1973 and 1987 Constitutions.
Therefore, the plain difference in setting, including, of course, the
sheer impact of the condonation doctrine on public
accountability, calls for Pascual's judicious re-examination.
D. Testing the Condonation Doctrine.
Pascual's ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the
term in which the public officer was elected for each term is
separate and distinct:
LAW O N P U B LI C O FFI C ER S
Offenses committed, or acts done, during previous term are
generally held not to furnish cause for removal and this is
especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal
from office, and disqualification from holding office for the
term for which the officer was elected or appointed. (67
C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery
vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson,
130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter, 281
P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs.
Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other
terms x x x.[272]
Second, an elective official's re-election serves as a condonation
of previous misconduct, thereby cutting the right to remove him
therefor; and
[T]hat the reelection to off ice operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him
therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala.
121, 63 So. 559, 50 L.R.A. (NS) 553. [273] (emphasis supplied)
Third, courts may not deprive the electorate, who are assumed
to have known the life and character of candidates, of their right
to elect officers:
As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17
A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —
The Court should never remove a public officer for acts done
prior to his present term of office. To do otherwise would be to
deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed
that they did this with knowledge of his life and character,
and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the
court, by reason of such faults or misconduct to practically
overrule the will of the people. [274] (Emphases supplied)
The notable cases on condonation following Pascual are as
follows:
(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the
Court first applied the condonation doctrine, thereby quoting
the above-stated passages from Pascual in verbatim.
92 | P a g e
(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein
the Court clarified that the condonation doctrine does not
apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves
the People of the Philippines as a community, and is a public
wrong to the State at large; whereas, in the latter, only the
populace of the constituency he serves is affected. In addition,
the Court noted that it is only the President who may pardon a
criminal offense.
(3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a case
decided under the 1987 Constitution wherein the condonation
doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely
supervened the pendency of, the proceedings.
(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996) -
wherein the Court reinforced the condonation doctrine by
stating that the same is justified by "sound public policy."
According to the Court, condonation prevented the elective
official from being "hounded" by administrative cases filed by
his "political enemies" during a new term, for which he has to
defend himself "to the detriment of public service." Also, the
Court mentioned that the administrative liability condoned by
re-election covered the execution of the contract and the
incidents related therewith. [279]
(5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10,
1999) - wherein the benefit of the doctrine was extended to then
Cebu City Mayor Alvin B. Garcia who was administratively
charged for his involvement in an anomalous contract for the
supply of asphalt for Cebu City, executed only four (4) days
before the upcoming elections. The Court ruled that
notwithstanding the timing of the contract's execution, the
electorate is presumed to have known the petitioner's
background and character, including his past misconduct; hence,
his subsequent re-election was deemed a condonation of his
prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine
should be the time when the contract was perfected; this meant
that as long as the contract was entered into during a prior
term, acts which were done to implement the same, even if
done during a succeeding term, do not negate the
application of the condonation doctrine in favor of the
elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman[281]
(Salumbides, Jr.; April 23, 2010) - wherein the Court explained the
LAW O N P U B LI C O FFI C ER S
doctrinal innovations in the Salalima and Mayor Garcia rulings, to current laws in order to determine if there is legal basis for the
wit: continued application of the doctrine of condonation.

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced The foundation of our entire legal system is the Constitution. It is
the doctrine. The condonation rule was applied even if the the supreme law of the land; [284] thus, the unbending rule is that
administrative complaint was not filed before the reelection every statute should be read in light of the Constitution.[285]
of the public official, and even if the alleged misconduct Likewise, the Constitution is a framework of a workable
occurred four days before the elections, respectively. government; hence, its interpretation must take into account the
Salalima did not distinguish as to the date of filing of the complexities, realities, and politics attendant to the operation of
administrative complaint, as long as the alleged misconduct was the political branches of government. [286]
committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the As earlier intimated, Pascual was a decision promulgated in 1959.
wrongdoing that gave rise to the public official's culpability was Therefore, it was decided within the context of the 1935
committed prior to the date of reelection. [282] (Emphasis Constitution which was silent with respect to public
supplied) accountability, or of the nature of public office being a public
trust. The provision in the 1935 Constitution that comes closest
in dealing with public office is Section 2, Article II which states
The Court, citing Civil Service Commission v. Sojor,[283] also clarified
that "[t]he defense of the State is a prime duty of government, and
that the condonation doctrine would not apply to appointive
in the fulfillment of this duty all citizens may be required by law
officials since, as to them, there is no sovereign will to
to render personal military or civil service."[287] Perhaps owing to
disenfranchise.
the 1935 Constitution's silence on public accountability, and
considering the dearth of jurisprudential rulings on the matter, as
(7) And finally, the above discussed case of Governor Garcia, Jr.
well as the variance in the policy considerations, there was no
-wherein the Court remarked that it would have been prudent for
glaring objection confronting the Pascual Court in adopting the
the appellate court therein to have issued a temporary restraining
condonation doctrine that originated from select US cases existing
order against the implementation of a preventive suspension
at that time.
order issued by the Ombudsman in view of the condonation
doctrine.
With the advent of the 1973 Constitution, the approach in dealing
with public officers underwent a significant change. The new
A thorough review of the cases post-1987, among others,
charter introduced an entire article on accountability of public
Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. - all cited
officers, found in Article XIII. Section 1 thereof positively
by the CA to justify its March 16, 2015 and April 6, 2015
recognized, acknowledged, and declared that "[p]ublic office is
Resolutions directing the issuance of the assailed injunctive writs
a public trust." Accordingly, "[p]ublic officers and employees
- would show that the basis for condonation under the prevailing
shall serve with the highest degree of responsibility,
constitutional and statutory framework was never accounted for.
integrity, loyalty and efficiency, and shall remain
What remains apparent from the text of these cases is that the
accountable to the people."
basis for condonation, as jurisprudential doctrine, was - and still
remains - the above-cited postulates of Pascual, which was lifted
After the turbulent decades of Martial Law rule, the Filipino
from rulings of US courts where condonation was amply
People have framed and adopted the 1987 Constitution, which
supported by their own state laws. With respect to its applicability
sets forth in the Declaration of Principles and State Policies in
to administrative cases, the core premise of condonation - that is,
Article II that "[t]he State shall maintain honesty and
an elective official's re-election cuts qff the right to remove him
integrity in the public service and take positive and effective
for an administrative offense committed during a prior term - was
measures against graft and corruption."[288] Learning how
adopted hook, line, and sinker in our jurisprudence largely because
unbridled power could corrupt public servants under the regime
the legality of that doctrine was never tested against existing legal
of a dictator, the Framers put primacy on the integrity of the
norms. As in the US, the propriety of condonation is - as it should
public service by declaring it as a constitutional principle and a
be -dependent on the legal foundation of the adjudicating
State policy. More significantly, the 1987 Constitution
jurisdiction. Hence, the Court undertakes an examination of our
strengthened and solidified what has been first proclaimed in the
93 | P a g e LAW O N P U B LI C O FFI C ER S
1973 Constitution by commanding public officers to be
accountable to the people at all times:
Section 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty,
and efficiency and act with patriotism and justice, and lead
modest lives.
In Belgica, it was explained that:
[t]he aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust," is
an overarching reminder that every instrumentality of
government should exercise their official functions only in
accordance with the principles of the Constitution which
embodies the parameters of the people's trust. The notion of a
public trust connotes accountability x x x.[289] (Emphasis
supplied)
The same mandate is found in the Revised Administrative Code
under the section of the Civil Service Commission, [290] and also,
in the Code of Conduct and Ethical Standards for Public
Officials and Employees. [291]
For local elective officials like Binay, Jr., the grounds to
discipline, suspend or remove an elective local official from
office are stated in Section 60 of Republic Act No. 7160,[292]
otherwise known as the "Local Government Code of 1991"
(LGC), which was approved on October 10 1991, and took
effect on January 1, 1992:
Section 60. Grounds for Disciplinary Action. - An elective local
official may be disciplined, suspended, or removed from office
on any of the r following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an
offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working
days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang
barangay;
(g) Application for, or acquisition of, foreign citizenship or
94 | P a g e
residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and
other laws.
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.
Related to this provision is Section 40 (b) of the LGC which
states that those removed from office as a result of an
administrative case shall be disqualified from running for
any elective local position:
Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
xx xx
(b) Those removed from office as a result of an
administrative case;
x x x x (Emphasis supplied)
In the same sense, Section 52 (a) of the RRACCS provides that
the penalty of dismissal from service carries the accessory
penalty of perpetual disqualification from holding public
office:
Section 52. - Administrative Disabilities Inherent in Certain
Penalties. -
a. The penalty of dismissal shall carry with it cancellation
of eligibility, forfeiture of retirement benefits, perpetual
disqualification from holding public office, and bar
from taking the civil service examinations.
In contrast, Section 66 (b) of the LGC states that the penalty of
suspension shall not exceed the unexpired term of the elective
local official nor constitute a bar to his candidacy for as long as
he meets the qualifications required for the office. Note,
however, that the provision only pertains to the duration of the
penalty and its effect on the official's candidacy. Nothing
therein states that the administrative liability therefor is
extinguished by the fact of re-election:
Section 66. Form and Notice of Decision. - x x x.
xx xx
LAW O N P U B LI C O FFI C ER S
(b) The penalty of suspension shall not exceed the unexpired grounds for discipline enumerated therein cannot anymore be
term of the respondent or a period of six (6) months for every invoked against an elective local official to hold him
administrative offense, nor shall said penalty be a bar to the administratively liable once he is re-elected to office. In fact,
candidacy of the respondent so suspended as long as he meets Section 40 (b) of the LGC precludes condonation since in the first
the qualifications required for the office. place, an elective local official who is meted with the penalty of
removal could not be re-elected to an elective local position due
to a direct disqualification from running for such post. In similar
Reading the 1987 Constitution together with the above-cited
regard, Section 52 (a) of the RRACCS imposes a penalty of
legal provisions now leads this Court to the conclusion that the
perpetual disqualification from holding public office as an
doctrine of condonation is actually bereft of legal bases.
accessory to the penalty of dismissal from service.

To begin with, the concept of public office is a public trust

To compare, some of the cases adopted in Pascual were decided
and the corollary requirement of accountability to the
by US State jurisdictions wherein the doctrine of condonation of
people at all times, as mandated under the 1987 Constitution,
administrative liability was supported by either a constitutional or
is plainly inconsistent with the idea that an elective local
statutory provision stating, in effect, that an officer cannot be
official's administrative liability for a misconduct committed
removed by a misconduct committed during a previous term, [294]
during a prior term can be wiped off by the fact that he was
or that the disqualification to hold the office does not extend
elected to a second term of office, or even another elective post.
beyond the term in which the official's delinquency
Election is not a mode of condoning an administrative
occurred.[295] In one case,[296] the absence of a provision against
offense, and there is simply no constitutional or statutory basis
the re-election of an officer removed - unlike Section 40 (b) of the
in our jurisdiction to support the notion that an official elected
LGC-was the justification behind condonation. In another
for a different term is fully absolved of any administrative
case,[297] it was deemed that condonation through re-election was
liability arising from an offense done during a prior term. In this
a policy under their constitution - which adoption in this
jurisdiction, liability arising from administrative offenses
jurisdiction runs counter to our present Constitution's
may be condoned bv the President in light of Section 19,
requirements on public accountability. There was even one case
Article VII of the 1987 Constitution which was interpreted in
where the doctrine of condonation was not adjudicated upon but
Llamas v. Orbos[293] to apply to administrative offenses:
only invoked by a party as a ground; [298] while in another case,
which was not reported in full in the official series, the crux of the
The Constitution does not distinguish between which cases
disposition was that the evidence of a prior irregularity in no way
executive clemency may be exercised by the President, with the
pertained to the charge at issue and therefore, was deemed to be
sole exclusion of impeachment cases. By the same token, if
incompetent.[299] Hence, owing to either their variance or
executive clemency may be exercised only in criminal cases, it
inapplicability, none of these cases can be used as basis for the
would indeed be unnecessary to provide for the exclusion of
continued adoption of the condonation doctrine under our
impeachment cases from the coverage of Article VII, Section 19
existing laws.
of the Constitution. Following petitioner's proposed
interpretation, cases of impeachment are automatically excluded
At best, Section 66 (b) of the LGC prohibits the enforcement of
inasmuch as the same do not necessarily involve criminal
the penalty of suspension beyond the unexpired portion of the
offenses.
elective local official's prior term, and likewise allows said official
to still run for re-election This treatment is similar to People ex rel
In the same vein, We do not clearly see any valid and convincing
Bagshaw v. Thompson [300] and Montgomery v. Novell [301] both cited in
, reason why the President cannot grant executive clemency in
Pascual, wherein it was ruled that an officer cannot be suspended
administrative cases. It is Our considered view that if the
for a misconduct committed during a prior term. However, as
President can grant reprieves, commutations and pardons, and
previously stated, nothing in Section 66 (b) states that the elective
remit fines and forfeitures in criminal cases, with much more
local official's administrative liability is extinguished by the fact of
reason can she grant executive clemency in administrative cases,
re-election. Thus, at all events, no legal provision actually supports
which are clearly less serious than criminal offenses.
the theory that the liability is condoned.

Also, it cannot be inferred from Section 60 of the LGC that the

Relatedly it should be clarified that there is no truth in Pascual's
95 | P a g e LAW O N P U B LI C O FFI C ER S
postulation that the courts would be depriving the electorate of
their right to elect their officers if condonation were not to be
sanctioned. In political law, election pertains to the process by
which a particular constituency chooses an individual to hold a
public office. In this jurisdiction, there is, again, no legal basis to
conclude that election automatically implies condonation. Neither
is there any legal basis to say that every democratic and republican
state has an inherent regime of condonation. If condonation of an
elective official's administrative liability would perhaps, be allowed
in this jurisdiction, then the same should have been provided by
law under our governing legal mechanisms. May it be at the time
of Pascual or at present, by no means has it been shown that such
a law, whether in a constitutional or statutory provision, exists.
Therefore, inferring from this manifest absence, it cannot be said
that the electorate's will has been abdicated .
Equally infirm is Pascual's proposition that the electorate, when re-
electing a local official, are assumed to have done so with
knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any.
Suffice it to state that no such presumption exists in any
statute or procedural rule.[302] Besides, it is contrary to human
experience that the electorate would have full knowledge of a
public official's misdeeds. The Ombudsman correctly points out
the reality that most corrupt acts by public officers are shrouded
in secrecy, and concealed from the public. Misconduct
committed by an elective official is easily covered up, and is
almost always unknown to the electorate when they cast
their votes.[303] At a conceptual level, condonation presupposes
that the condoner has actual knowledge of what is to be
condoned. Thus, there could be no condonation of an act that
is unknown. As observed in Walsh v. City Council of Trenton [304]
decided by the New Jersey Supreme Court:
Many of the cases holding that re-election of a public official
prevents his removal for acts done in a preceding term of office
are reasoned out on the theory of condonation. We cannot
subscribe to that theory because condonation, implying as it
does forgiveness, connotes knowledge and in the absence of
knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.
That being said, this Court simply finds no legal authority to
sustain the condonation doctrine in this jurisdiction. As can be
seen from this discourse, it was a doctrine adopted from one
class of US rulings way back in 1959 and thus, out of touch from
- and now rendered obsolete by - the current legal regime. In
96 | P a g e
consequence, it is high time for this Court to abandon the
condonation doctrine that originated from Pascual, and affirmed
in the cases following the same, such as Aguinaldo, Salalima,
Mayor Garcia, and Governor Garcia, Jr. which were all relied upon
by the CA.
It should, however, be clarified that this Court's abandonment of
the condonation doctrine should be prospective in application for
the reason that judicial decisions applying or interpreting the
laws or the Constitution, until reversed, shall form part of the
legal system of the Philippines. [305] Unto this Court devolves the
sole authority to interpret what the Constitution means, and all
persons are bound to follow its interpretation. As explained in
De Castro v. Judicial Bar Council.[306]
Judicial decisions assume the same authority as a statute itself
and, until authoritatively abandoned, necessarily become, to the
extent that they are applicable, the criteria that must control the
actuations, not only of those called upon to abide by them, but
also of those duty-bound to enforce obedience to them. [307]
Hence, while the future may ultimately uncover a doctrine's error,
it should be, as a general rule, recognized as "good law" prior to
its abandonment. Consequently, the people's reliance thereupon
should be respected. The landmark case on this matter is People v.
Jabinal,[308] wherein it was ruled:
[W]hen a doctrine of this Court is overruled and a different view
is adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on the old doctrine and
acted on the faith thereof.
Later, in Spouses Benzonan v. CA,[309] it was further elaborated:
[Pursuant to Article 8 of the Civil Code "judicial decisions
applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines." But while our
decisions form part of the law of the land, they are also subject to
Article 4 of the Civil Code which provides that "laws shall have
no retroactive effect unless the contrary is provided." This is
expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a
law usually divests rights that have already become vested or
impairs the obligations of contract and hence, is
unconstitutional. [310]
LAW O N P U B LI C O FFI C ER S

Indeed, the lessons of history teach us that institutions can greatly
benefit from hindsight and rectify its ensuing course. Thus, while
it is truly perplexing to think that a doctrine which is barren of
legal anchorage was able to endure in our jurisprudence for a
considerable length of time, this Court, under a new membership,
takes up the cudgels and now abandons the condonation doctrine.
E. Consequence of ruling.
As for this section of the Decision, the issue to be resolved is
whether or not the CA committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the
assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be
considered as with grave abuse of discretion when such act is
done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must
be so patent and gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion
and hostility.[311] It has also been held that "grave abuse of
discretion arises when a lower court or tribunal patently
violates the Constitution, the law or existing
jurisprudence."[312]
As earlier established, records disclose that the CA's resolutions
directing the issuance of the assailed injunctive writs were all
hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of
the subject TRO was based on the case of Governor Garcia, Jr.,
while the April 6, 2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo, Salalima, Mayor
Garcia, and again, Governor Garcia, Jr. Thus, by merely following
settled precedents on the condonation doctrine, which at that
time, unwittingly remained "good law," it cannot be concluded
that the CA committed a grave abuse of discretion based on its
legal attribution above. Accordingly, the WPI against the
Ombudsman's preventive suspension order was correctly issued.
With this, the ensuing course of action should have been for the
CA to resolve the main petition for certiorari in CA-G.R. SP No.
139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr.
administratively liable and imposed upon him the penalty of
dismissal, which carries the accessory penalty of perpetual
97 | P a g e
disqualification from holding public office, for the present
administrative charges against him, the said CA petition appears
to have been mooted. [313] As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core,
serves the purpose of assisting the Office of the Ombudsman in
its investigation. It therefore has no more purpose - and perforce,
dissolves - upon the termination of the office's process of
investigation in the instant administrative case.
F. Exceptions to the mootness principle.
This notwithstanding, this Court deems it apt to clarify that the
mootness of the issue regarding the validity of the preventive
suspension order subject of this case does not preclude any of its
foregoing determinations, particularly, its abandonment of the
condonation doctrine. As explained in Belgica, '"the moot and
academic principle' is not a magical formula that can automatically
dissuade the Court in resolving a case. The Court will decide cases,
otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation
and the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth,
the case is capable of repetition yet evading review."[314] All of
these scenarios obtain in this case:
First, it would be a violation of the Court's own duty to uphold
and defend the Constitution if it were not to abandon the
condonation doctrine now that its infirmities have become
apparent. As extensively discussed, the continued application of
the condonation doctrine is simply impermissible under the
auspices of the present Constitution which explicitly mandates
that public office is a public trust and that public officials shall be
accountable to the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential
creation that has persisted as a defense of elective officials to
escape administrative liability. It is the first time that the legal
intricacies of this doctrine have been brought to light; thus, this is
a situation of exceptional character which this Court must
ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the
multitude of elective local officials throughout the years, it is
indubitable that paramount public interest is involved.
Third, the issue on the validity of the condonation doctrin e
clearly requires the formulation of controlling principles to guide
the bench, the bar, and the public. The issue does not only involve
LAW O N P U B LI C O FFI C ER S
an in-depth exegesis of administrative law principles, but also puts Without necessarily giving due course to the Petition for
to the forefront of legal discourse the potency of the Contempt respondents [Hon. Conchita Carpio Morales, in her
accountability provisions of the 1987 Constitution. The Court capacity as the Ombudsman, and the Department of Interior and
owes it to the bench, the bar, and the public to explain how this Local Government] are hereby DIRECTED to file Comment on
controversial doctrine came about, and now, its reasons for the Petition/Amended and Supplemental Petition for Contempt
abandoning the same in view of its relevance on the parameters (CA-G.R. SP No. 139504) within an inextendible period of three
of public office. (3) days from receipt hereof. (Emphasis and underscoring
supplied)
And fourth, the defense of condonation has been consistently
invoked by elective local officials against the administrative
Thus, even if the Ombudsman accedes to the CA's directive by
charges filed against them. To provide a sample size, the
filing a comment, wherein she may properly raise her objections
Ombudsman has informed the Court that "for the period of July
to the contempt proceedings by virtue of her being an
2013 to December 2014 alone, 85 cases from the Luzon Office
impeachable officer, the CA, in the exercise of its sound judicial
and 24 cases from the Central Office were dismissed on the
discretion, may still opt not to give due course to Binay, Jr.'s
ground of condonation. Thus, in just one and a half years, over a
contempt petition and accordingly, dismiss the same. Sjmply put,
hundred cases of alleged misconduct - involving infractions such
absent any indication that the contempt petition has been given
as dishonesty, oppression, gross neglect of duty and grave
due course by the CA, it would then be premature for this Court
misconduct - were placed beyond the reach of the Ombudsman's
to rule on the issue. The submission of the Ombudsman on this
investigatory and prosecutorial powers."[315] Evidently, this
score is perforce denied.
fortifies the finding that the case is capable of repetition and must
therefore, not evade review .
WHEREFORE, the petition is PARTLY GRANTED. Under
the premises of this Decision, the Court resolves as follows:
In any event, the abandonm ent of a doctrine is wholly within the
prerogative of the Court. As mentioned, it is its own
(a) the second paragraph of Section 14 of Republic Act No. 6770
jurisprudential creation and may therefore, pursuant to its
is declared UNCONSTITUTIONAL, while the policy against
mandate to uphold and defend the Constitution, revoke it
the issuance of provisional injunctive writs by courts other than
notwithstanding supervening events that render the subject of
the Supreme Court to enjoin an investigation conducted by the
discussion moot.
Office of the Ombudsman under the first paragraph of the said
provision is DECLARED ineffective until the Court adopts the
V.
same as part of the rules of procedure through an administrative
circular duly issued therefor;
With all matters pertaining to CA-G.R. SP No. 139453 passed
upon, the Court now rules on the final issue on whether or not
(b) The condonation doctrine is ABANDONED, but the
the CA's Resolution [316] dated March 20, 2015 directing the
abandonment is PROSPECTIVE in effect;
Ombudsman to comment on Binay, Jr.'s petition for contempt in
CA-G.R. SP No. 139504 is improper and illegal.
(c) The Court of Appeals (CA) is DIRECTED to act on
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition for
The sole premise of the Ombudsman's contention is that, as an
certiorari in CA-G.R. SP No. 139453 in light of the Office of the
impeachable officer, she cannot be the subject of a charge for
Ombudsman's supervening issuance of its Joint Decision dated
indirect contempt [317] because this action is criminal in nature and
October 9, 2015 finding Binay, Jr. administratively liable in the six
the penalty therefor would result in her effective removal from
(6) administrative complamts, docketed as OMB-C-A-15-0058,
office.[318] However, a reading of the aforesaid March 20, 2015
OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061,
Resolution does not show that she has already been subjected to
OMB-C-A-15-0062, and OMB-C-A-15-0063; and
contempt proceedings. This issuance, in? fact, makes it clear that
notwithstanding the directive for the Ombudsman to comment,
(d) After the filing of petitioner Ombudsman Conchita Carpio
the CA has not necessarily given due course to Binay, Jr.'s
Morales's comment, the CA is DIRECTED to resolve Binay, Jr.'s
contempt petition:
petition for contempt in CA-G.R. SP No. 139504 with utmost

98 | P a g e LAW O N P U B LI C O FFI C ER S
dispatch. SO ORDERED.

99 | P a g e LAW O N P U B LI C O FFI C ER S