G.R. No. 145368 - April 12, 2002 who were also its first nine (9) directors.
o its first nine (9) directors. Petitioner was elected Expocorp Chief
SALVADOR H. LAUREL, Petitioner, v. HON. ANIANO A. DESIERTO, in his
capacity as Ombudsman, respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223
"constituting a Committee for the preparation of the National Centennial Celebration
in 1998." The Committee was mandated "to take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial of the
Declaration of Philippine Independence and the Inauguration of the Malolos
Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
"reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1988." It renamed the Committee as the "National Centennial
Commission." Appointed to chair the reconstituted Commission was Vice-President
Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were
named Honorary Chairpersons.2
Characterized as an "i body," the existence of the Commission "shall terminate upon
the completion of all activities related to the Centennial Celebrations."3 Like its
predecessor Committee, the Commission was tasked to "take charge of the
nationwide preparations for the National Celebration of the Philippine Centennial of
the Declaration of Philippine Independence and the Inauguration of the Malolos
Congress."
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to "prepare, for approval of the President, a Comprehensive Plan for the
Centennial Celebrations within six (6) months from the effectivity of" the Executive
Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative staff
support by a Secretariat to be composed of, among others, detailed personnel from
the Presidential Management Staff, the National Commission for Culture and the Arts,
and the National Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the president's Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo '98 Corporation
(Expocorp) was created.4 Petitioner was among the nine (9) Expocorp incorporators,
Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in
the Senate denouncing alleged anomalies in the construction and operation of the
Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Coseteng's privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35,
creating an ad hoc and independent citizens' committee to investigate all the facts
and circumstances surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was appointed to chair the
Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the
Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committee's recommendations was "the prosecution by the Ombudsman/DOJ of Dr.
Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to
Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation. of the anti-graft law."5
Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended "the further investigation by the Ombudsman, and indictment, in proper
cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e)
of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article
217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently
referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman.
On January 27, 2000, the Bureau issued its Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before
the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former
EXPOCORP President Teodoro Q. Peña and AK President Edgardo H. Angeles for
violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594
and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-
affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioner's motion to
dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order
but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a
resolution finding "probable cause to indict respondents SALVADOR H. LAUREL and
TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section 3(e)
of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution also
directed that an information for violation of the said law be filed against Laurel and
Peña. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel
but dismissed the charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining
order, commanding respondents to desist from filing any information before the
Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of
the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral
argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a
public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH
UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH
VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE
ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A
GOVERNMENT-OWNED OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT
A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT
PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court's decision in Uy vs.
Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman was
limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade
27 and higher. As petitioner's position was purportedly not classified as Grade 27 or
higher, the Sandiganbayan and, consequently, the Ombudsman, would have no
jurisdiction over him.
This last contention is easily dismissed. In the Court's decision in Uy, we held that "it
is the prosecutor, not the Ombudsman, who has the authority to file the corresponding
information/s against petitioner in the regional trial court. The Ombudsman exercises
prosecutorial powers only in cases cognizable by the Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular courts.
The investigation and prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of
R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the
Office of the Ombudsman, and for other purposes") which vests upon the
Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan." And
this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to "conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction
clearly serve to limit the Ombudsman's and Special Prosecutor's authority to cases
cognizable by the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by
the Ombudsman in the same case, the Court set aside the foregoing pronouncement
in its Resolution dated March 20, 2001. The Court explained the rationale for this
reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is
plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the
clause "any illegal act or omission of any public official" is broad enough to embrace
any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining the scope of
the investigatory and prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman "to take over, at any stage, from any investigatory
agency of the government, the investigation of such cases." The grant of this authority
does not necessarily imply the exclusion from its jurisdiction of cases involving public
officers and employees by other courts. The exercise by the Ombudsman of his
primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible
with the discharge of his duty to investigate and prosecute other offenses committed
by public officers and employees. Indeed, it must be stressed that the powers granted
by the legislature to the Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed by public officers and
employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with
the limited authority of the Special Prosecutor under Section 11 of RA 6770. The
Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority
of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is
limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the
lawmakers did not intend to confine the investigatory and prosecutory power of the
Ombudsman to these types of cases. The Ombudsman is mandated by law to act on
all complaints against officers and employees of the government and to enforce their
administrative, civil and criminal liability in every case where the evidence warrants.
To carry out this duty, the law allows him to utilize the personnel of his office and/or
designate any fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and prosecution of
certain cases. Those designated or deputized to assist him work under his
supervision and control. The law likewise allows him to direct the Special Prosecutor
to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with
Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active
and effective agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent. [Emphasis in the
original.]
Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the NCC,
was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as "protectors of the
people," who "shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations."
Among the awesome powers, functions, and duties vested by the Constitution11upon
the Office of the Ombudsman is to "[i]nvestigate. any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770,
otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of said law
respectively provide:
SEC. 13. Mandate. - The Ombudsman and his Deputies, as protectors of the people
shall act promptly on complaints file in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have
the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal unjust, improper or inefficient. It has primary jurisdiction
over cases cognizable by the Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC 16. Applicability. - The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been committed by any
officer or employee as mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance
and non-feasance by a public officer or employee of the government, or of any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations.12
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence13 is that
provided by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by which,
for a given period, either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public. The individual so
invested is a public officer.14
The characteristics of a public office, according to Mechem, include the delegation of
sovereign functions, its creation by law and not by contract, an oath, salary,
continuance of the position, scope of duties, and the designation of the position as an
office.15
Petitioner submits that some of these characteristics are not present in the position of
NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of the
NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign functions
of government as "[t]he most important characteristic" in determining whether a
position is a public office or not.
The most important characteristic which distinguishes an office from an employment
or contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him
for the benefit of the public; - that some portion of the sovereignty of the country,
either legislative, executive or judicial, attaches, for the time being, to be exercised for
the public benefit. Unless the powers conferred are of this nature, the individual is not
a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign functions of government?
Certainly, the law did not delegate upon the NCC functions that can be described as
legislative or judicial : May the functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive power "is
generally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practical operation and enforcing their due observance." 17 The
executive function, therefore, concerns the implementation of the policies as set forth
by law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nation's historical and cultural heritage and
resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and
the centennial presents an important vehicle for fostering nationhood and a strong
sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only through
long-range planning and continuous developmental programming;
Whereas, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is
necessary for long-range planning and continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and undertake the
primary task of harnessing the multisectoral components from the business, cultural,
and business sectors to serve as effective instruments from the launching and
overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the "need to strengthen the said Committee to ensure a more
coordinated and synchronized celebrations of the Philippine Centennial and wider
participation from the government and non-government or private organizations." It
also referred to the "need to rationalize the relevance of historical links with other
countries."
The NCC was precisely created to execute the foregoing policies and objectives, to
carry them into effect. Thus, the Commission was vested with the following functions:
(a) To undertake the overall study, conceptualization, formulation and implementation
of programs and projects on the utilization of culture, arts, literature and media as
vehicles for history, economic endeavors, and reinvigorating the spirit of national unity
and sense of accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National Exposition '98 within
Metro Manila, the original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all
information about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of the
programs and projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In this
regard, the Commission shall formulate schemes (e.g. lease-maintained-and-transfer,
build-operate-transfer, and similar arrangements) to ensure the preservation and
maintenance of the historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and to
invite private individuals and organizations to assist it in the performance of its tasks;
and,
(g) Submit regular reports to the President on the plans, programs, projects, activities
as well as the status of the preparations for the Celebration.18
It bears noting the President, upon whom the executive power is vested,19 created the
NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. - Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the country's economic development,
especially in Central Luzon. Petitioner himself admitted as much in the oral arguments
before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, don't you agree that
the task of the centennial commission was also to focus on the long term over all
socio economic development of the zone and Central Luzon by attracting investors in
the area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch on
by lack of material time I could not but that is a very important point. When I was
made Chairman I wanted the Expo to be in Batangas because I am a Batangeño but
President Ramos said Mr. Vice President the Central Luzon is suffering, suffering
because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery
in that area by putting this Expo in Clark Field and so it was done I agreed and Your
Honor if I may also mention we wanted to generate employment aside from attracting
business investments and employment. And the Estrada administration decided to
junk this project there 48, 40 thousand people who lost job, they were employed in
Expo. And our target was to provide 75 thousand jobs. It would have really calibrated,
accelerated the development of Central Luzon. Now, I think they are going back to
that because they had the airport and there are plan to revive the Expo site into key
park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy.20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the holding by a
municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the "holding of a nationwide celebration which marked the
nation's 100th birthday may be likened to a national fiesta which involved only the
exercise of the national government's proprietary function." 22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is
not a source of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like which are for
public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. The
basic element, however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is involved in the
celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that "there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a municipality; the
surrounding circumstances of a particular case are to be considered and will be
decisive." Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated
how the "surrounding circumstances plus the political, social, and cultural
backgrounds" could produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances
plus the political, social, and cultural backgrounds may have a decisive bearing on
this question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by defendants'
negligence. The defendants demurred to the complaint invoking the defense that the
city was engaged in the performance of a public governmental duty from which it
received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country. Plaintiff sought to amend his complaint to allege that the
celebration was for the corporate advantage of the city. This was denied. In affirming
the order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute..
A municipality corporation, which under permissive authority of its charter or of
statute, conducted a public Fourth of July celebration, including a display of fireworks,
and sent up a bomb intended to explode in the air, but which failed to explode until it
reached the ground, and then killed a spectator, was engaged in the performance of a
governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the
different departments of the government recognize, and have recognized since the
government was established, July 4th as a national holiday. Throughout the country it
has been recognized and celebrated as such. These celebrations, calculated to
entertain and instruct the people generally and to arouse and stimulate patriotic
sentiments and love of country, frequently take the form of literary exercises
consisting of patriotic speeches and the reading of the Constitution, accompanied by
a musical program including patriotic air sometimes preceded by the firing of cannon
and followed by fireworks. That such celebrations are of advantage to the general
public and their promotion a proper subject of legislation can hardly be questioned. x
x x"
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the liberation
of our people from oppression by a foreign power. 1998 marked 100 years of
independence and sovereignty as one united nation. The Celebrations was an
occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it,
it was a "vehicle for fostering nationhood and a strong sense of Filipino identity," an
opportunity to "showcase Filipino heritage and thereby strengthen Filipino values."
The significance of the Celebrations could not have been lost on petitioner, who
remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has to
make everybody feel proud that he is a Filipino, proud of our history, proud of what
our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of little
consequence. A salary is a usual but not a necessary criterion for determining the
nature of the position. It is not conclusive. The salary is a mere incident and forms no
part of the office. Where a salary or fees is annexed, the office is provided for it is a
naked or honorary office, and is supposed to be accepted merely for the public
good.23 Hence, the office of petitioner as NCC Chair may be characterized as an
honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which
salary, compensation or fees are attached.24 But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-
hoc body" make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on the duties pertaining
to his station without any contract defining them, if those duties continue though the
person be changed, -- it seems very difficult to distinguish such a charge or
employment from an office of the person who performs the duties from an officer."
At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present "it can make no difference," says
Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether
the office expires as soon as the one act is done, or is to be held for years or during
good behavior."25
Our conclusion that petitioner is a public officer finds support in In Re Corliss.26 There
the Supreme Court of Rhode Island ruled that the office of Commissioner of the
United States Centennial Commission is an "office of trust" as to disqualify its holder
as elector of the United States President and Vice-President. (Under Article II of the
United States Constitution, a person holding an office of trust or profit under the
United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an
office of trust under the United States, and that he is therefore disqualified for the
office of elector of President and Vice-President of the United States.
The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign
arts, products, and manufactures, "under the auspices of the government of the
United States," and for the constitution of a commission, to consist of more than one
delegate from each State and from each Territory of the United States, "whose
functions shall continue until close of the exhibition," and "whose duty it shall be to
prepare and superintend the execution of the plan for holding the exhibition." Under
the statute the commissioners are appointed by the President of the United States, on
the nomination of the governor of the States and Territories respectively. Various
duties were imposed upon the commission, and under the statute provision was to be
made for it to have exclusive control of the exhibit before the President should
announce, by proclamation, the date and place of opening and holding the exhibition.
By an act of Congress approved June 1st, 1872, the duties and functions of the
commission were further increased and defined. That act created a corporation,
called "The Centennial Board of Finance," to cooperate with the commission and to
raise and disburse the funds. It was to be organized under the direction of the
commission. The seventh section of the act provides "that the grounds for exhibition
shall be prepared and the buildings erected by the corporation, in accordance with
plans which shall have been adopted by the United States Centennial Commission;
and the rules and regulations of said corporation, governing rates for entrance and
admission fees, or otherwise affecting the rights, privileges, or interests of the
exhibitors, or of the public, shall be fixed and established by the United States
Centennial Commission; and no grant conferring rights or privileges of any description
connected with said grounds or buildings, or relating to said exhibition or celebration,
shall be made without the consent of the United States Centennial Commission, and
said commission shall have power to control, change, or revoke all such grants, and
shall appoint all judges and examiners and award all premiums." The tenth section of
the act provides that "it shall be the duty of the United States Centennial Commission
to supervise the closing up of the affairs of said corporation, to audit its accounts, and
submit in a report to the President of the United States the financial results of the
centennial exhibition."
It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they
were not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such
duties and exercising such functions, in pursuance of statutory direction and authority,
are not to be regarded as mere employees, agents, or committee men, but that they
are, properly speaking, officers, and that the places which they hold are offices. It
appears, moreover, that they were originally regarded as officers by Congress; for the
act under which they were appointed declares, section 7, that "no compensation for
services shall be paid to the commissioners or other officers, provided for in this act,
from the treasury of the United States." The only other officers provided for were the
"alternates" appointed to serve as commissioners when the commissioners were
unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether
Expocorp is a private or a public corporation. Even assuming that Expocorp is a
private corporation, petitioner's position as Chief Executive Officer (CEO) of Expocorp
arose from his Chairmanship of the NCC. Consequently, his acts or omissions as
CEO of Expocorp must be viewed in the light of his powers and functions as NCC
Chair.27
Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public officer as
defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is,
therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
which reads:
SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows:
SEC. 2. Definition of terms. - As used in this Act, the term -
xxx
(b) "Public officer" includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exemption
service receiving compensation, even nominal, from the government as defined in the
preceding paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a "public officer" is expressly
limited to the application of R.A. No. 3019. Said definition does not apply for purposes
of determining the Ombudsman's jurisdiction, as defined by the Constitution and the
Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft
and Corrupt Practices Act involves the appreciation of evidence and interpretation of
law, matters that are best resolved at trial.
To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition
is not restrictive.28 The Anti-Graft and Corrupt Practices Act is just one of several laws
that define "public officers." Article 203 of the Revised Penal Code, for example,
provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by
competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,29 on
the other hand, states:
Officer - as distinguished from "clerk" or "employee", refers to a person whose duties
not being of a clerical or manual nature, involves the exercise of discretion in the
performance of the functions of the government. When used with reference to a
person having authority to do a particular act or perform a particular person in the
exercise of governmental power, "officer" includes any government employee, agent
or body having authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may be
considered a "public official" whether or not one receives compensation, thus:

"Public Officials" include elective and appointive officials and employees, permanent
or temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
"compensation," which is not defined by said law, has many meanings.

Under particular circumstances, "compensation" has been held to include allowance

for personal expenses, commissions, expenses, fees, an honorarium, mileage or
traveling expenses, payments for services, restitution or a balancing of accounts,
salary, and wages.30

How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to
be interpreted?

Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner
did not receive any salary, the records do not reveal if he received any allowance, fee,
honorarium, or some other form of compensation. Notably, under the by-laws of
Expocorp, the CEO is entitled to per diems and compensation.31 Would such fact
bear any significance?

Obviously, this proceeding is not the proper forum to settle these issues lest we
preempt the trial court from resolving them.

WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the

Court's Resolution dated September 24, 2001 is hereby LIFTED.

SO ORDERED.
G.R. No. 162059 January 22, 2008
HANNAH EUNICE D. SERANA, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
REYES, R.T., J.:
CAN the Sandiganbayan try a government scholaran** accused, along with her
brother, of swindling government funds?
MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang
kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan?
The jurisdictional question is posed in this petition for certiorari assailing the
Resolutions1 of the Sandiganbayan, Fifth Division, denying petitioner’s motion to
quash the information and her motion for reconsideration.
The Antecedents
Petitioner Hannah Eunice D. Serana was a senior student of the University of the
Philippines-Cebu. A student of a state university is known as a government scholar.
She was appointed by then President Joseph Estrada on December 21, 1999 as a
student regent of UP, to serve a one-year term starting January 1, 2000 and ending
on December 31, 2000.
In the early part of 2000, petitioner discussed with President Estrada the renovation of
Vinzons Hall Annex in UP Diliman.2 On September 4, 2000, petitioner, with her
siblings and relatives, registered with the Securities and Exchange Commission the
Office of the Student Regent Foundation, Inc. (OSRFI).3
One of the projects of the OSRFI was the renovation of the Vinzons Hall
Annex.4 President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI
as financial assistance for the proposed renovation. The source of the funds,
according to the information, was the Office of the President.
The renovation of Vinzons Hall Annex failed to materialize. 5 The succeeding student
regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of
the KASAMA sa U.P., a system-wide alliance of student councils within the state
university, consequently filed a complaint for Malversation of Public Funds and
Property with the Office of the Ombudsman.6
On July 3, 2003, the Ombudsman, after due investigation, found probable cause to
indict petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal
Case No. 27819 of the Sandiganbayan.7 The Information reads:
The undersigned Special Prosecution Officer III, Office of the Special
Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN
D. SERANA of the crime of Estafa, defined and penalized under Paragraph
2(a), Article 315 of the Revised Penal Code, as amended committed as
follows:
That on October, 24, 2000, or sometime prior or subsequent thereto, in
Quezon City, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, HANNAH EUNICE D. SERANA, a
high-ranking public officer, being then the Student Regent of the University
of the Philippines, Diliman, Quezon City, while in the performance of her
official functions, committing the offense in relation to her office and taking
advantage of her position, with intent to gain, conspiring with her brother,
JADE IAN D. SERANA, a private individual, did then and there wilfully,
unlawfully and feloniously defraud the government by falsely and
fraudulently representing to former President Joseph Ejercito Estrada that
the renovation of the Vinzons Hall of the University of the Philippines will be
renovated and renamed as "President Joseph Ejercito Estrada Student Hall,"
and for which purpose accused HANNAH EUNICE D. SERANA requested
the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine
Currency, from the Office of the President, and the latter relying and
believing on said false pretenses and misrepresentation gave and delivered
to said accused Land Bank Check No. 91353 dated October 24, 2000 in the
amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was
subsequently encashed by accused Jade Ian D. Serana on October 25,
2000 and misappropriated for their personal use and benefit, and despite
repeated demands made upon the accused for them to return aforesaid
amount, the said accused failed and refused to do so to the damage and
prejudice of the government in the aforesaid amount.
CONTRARY TO LAW. (Underscoring supplied)
Petitioner moved to quash the information. She claimed that the Sandiganbayan does
not have any jurisdiction over the offense charged or over her person, in her capacity
as UP student regent.
Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249,
enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.8 It
has no jurisdiction over the crime of estafa.9 It only has jurisdiction over crimes
covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public Officers),
Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI
(Crimes Against Property), Book II of the RPC is not within the Sandiganbayan’s
jurisdiction.
She also argued that it was President Estrada, not the government, that was duped.
Even assuming that she received the P15,000,000.00, that amount came from
Estrada, not from the coffers of the government.10
Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her
person. As a student regent, she was not a public officer since she merely
represented her peers, in contrast to the other regents who held their positions in
an ex officio capacity. She addsed that she was a simple student and did not receive
any salary as a student regent.
She further contended that she had no power or authority to receive monies or funds.
Such power was vested with the Board of Regents (BOR) as a whole. Since it was
not alleged in the information that it was among her functions or duties to receive
funds, or that the crime was committed in connection with her official functions, the
same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v.
Sandiganbayan.11
The Ombudsman opposed the motion.12 It disputed petitioner’s interpretation of the
law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all
phrase "in relation to office," thus, the Sandiganbayan has jurisdiction over the
charges against petitioner. In the same breath, the prosecution countered that the
source of the money is a matter of defense. It should be threshed out during a full-
blown trial.13
According to the Ombudsman, petitioner, despite her protestations, iwas a public
officer. As a member of the BOR, she hads the general powers of administration and
exerciseds the corporate powers of UP. Based on Mechem’s definition of a public
office, petitioner’s stance that she was not compensated, hence, not a public officer,
is erroneous. Compensation is not an essential part of public office. Parenthetically,
compensation has been interpreted to include allowances. By this definition, petitioner
was compensated.14
Sandiganbayan Disposition
In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioner’s
motion for lack of merit.15 It ratiocinated:
The focal point in controversy is the jurisdiction of the Sandiganbayan over
this case.
It is extremely erroneous to hold that only criminal offenses covered by
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within
the jurisdiction of this Court. As correctly pointed out by the prosecution,
Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has
jurisdiction over other offenses committed by public officials and employees
in relation to their office. From this provision, there is no single doubt that this
Court has jurisdiction over the offense of estafa committed by a public official
in relation to his office.
Accused-movant’s claim that being merely a member in representation of the
student body, she was never a public officer since she never received any
compensation nor does she fall under Salary Grade 27, is of no moment, in
view of the express provision of Section 4 of Republic Act No. 8249 which
provides:
Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
(A) x x x
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade "27" and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations. (Italics supplied)
It is very clear from the aforequoted provision that the Sandiganbayan has
original exclusive jurisdiction over all offenses involving the officials
enumerated in subsection (g), irrespective of their salary grades, because
the primordial consideration in the inclusion of these officials is the nature of
their responsibilities and functions.
Is accused-movant included in the contemplated provision of law?
A meticulous review of the existing Charter of the University of the
Philippines reveals that the Board of Regents, to which accused-movant
belongs, exclusively exercises the general powers of administration and
corporate powers in the university, such as: 1) To receive and appropriate to
the ends specified by law such sums as may be provided by law for the
support of the university; 2) To prescribe rules for its own government and to
enact for the government of the university such general ordinances and
regulations, not contrary to law, as are consistent with the purposes of the
university; and 3) To appoint, on recommendation of the President of the
University, professors, instructors, lecturers and other employees of the
University; to fix their compensation, hours of service, and such other duties
and conditions as it may deem proper; to grant to them in its discretion leave
of absence under such regulations as it may promulgate, any other
provisions of law to the contrary notwithstanding, and to remove them for
cause after an investigation and hearing shall have been had.
It is well-established in corporation law that the corporation can act only
through its board of directors, or board of trustees in the case of non-stock
corporations. The board of directors or trustees, therefore, is the governing
body of the corporation.
It is unmistakably evident that the Board of Regents of the University of the
Philippines is performing functions similar to those of the Board of Trustees
of a non-stock corporation. This draws to fore the conclusion that being a
member of such board, accused-movant undoubtedly falls within the
 category of public officials upon whom this Court is vested with original
exclusive jurisdiction, regardless of the fact that she does not occupy a
position classified as Salary Grade 27 or higher under the Compensation
and Position Classification Act of 1989.
Finally, this court finds that accused-movant’s contention that the same
of P15 Million was received from former President Estrada and not from the
coffers of the government, is a matter a defense that should be properly
ventilated during the trial on the merits of this case. 16
On November 19, 2003, petitioner filed a motion for reconsideration. 17 The motion
was denied with finality in a Resolution dated February 4, 2004. 18
Issue
Petitioner is now before this Court, contending that "THE RESPONDENT COURT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND
DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION
OVER THE OFFENSE CHARGED IN THE INFORMATION." 19
In her discussion, she reiterates her four-fold argument below, namely: (a) the
Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer
with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not
committed in relation to her office; (d) the funds in question personally came from
President Estrada, not from the government.
Our Ruling
The petition cannot be granted.
Preliminarily, the denial of a motion to
quash is not correctible by certiorari.
We would ordinarily dismiss this petition for certiorari outright on procedural grounds.
Well-established is the rule that when a motion to quash in a criminal case is denied,
the remedy is not a petition for certiorari, but for petitioners to go to trial, without
prejudice to reiterating the special defenses invoked in their motion to
quash.20 Remedial measures as regards interlocutory orders, such as a motion to
quash, are frowned upon and often dismissed. 21 The evident reason for this rule is to
avoid multiplicity of appeals in a single action.22
In Newsweek, Inc. v. Intermediate Appellate Court,23 the Court clearly explained and
illustrated the rule and the exceptions, thus:
As a general rule, an order denying a motion to dismiss is merely
interlocutory and cannot be subject of appeal until final judgment or order is
rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such
a case is to file an answer, go to trial and if the decision is adverse, reiterate
the issue on appeal from the final judgment. The same rule applies to an
order denying a motion to quash, except that instead of filing an answer a
plea is entered and no appeal lies from a judgment of acquittal.
This general rule is subject to certain exceptions. If the court, in denying the
motion to dismiss or motion to quash, acts without or in excess of jurisdiction
or with grave abuse of discretion, then certiorari or prohibition lies. The
reason is that it would be unfair to require the defendant or accused to
undergo the ordeal and expense of a trial if the court has no jurisdiction over
the subject matter or offense, or is not the court of proper venue, or if the
denial of the motion to dismiss or motion to quash is made with grave abuse
of discretion or a whimsical and capricious exercise of judgment. In such
cases, the ordinary remedy of appeal cannot be plain and adequate. The
following are a few examples of the exceptions to the general rule.
In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss
based on lack of jurisdiction over the subject matter, this Court granted the
petition for certiorari and prohibition against the City Court of Manila and
directed the respondent court to dismiss the case.
In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash
based on lack of jurisdiction over the offense, this Court granted the petition
for prohibition and enjoined the respondent court from further proceeding in
the case.
In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to
dismiss based on improper venue, this Court granted the petition for
prohibition and enjoined the respondent judge from taking cognizance of the
case except to dismiss the same.
In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss
based on bar by prior judgment, this Court granted the petition
for certiorari and directed the respondent judge to dismiss the case.
In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to
dismiss based on the Statute of Frauds, this Court granted the petition
for certiorari and dismissed the amended complaint.
In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition
for certiorari after the motion to quash based on double jeopardy was denied
by respondent judge and ordered him to desist from further action in the
criminal case except to dismiss the same.
In People v. Ramos (83 SCRA 11), the order denying the motion to quash
based on prescription was set aside on certiorari and the criminal case was
dismissed by this Court.24
We do not find the Sandiganbayan to have committed a grave abuse of discretion.
The jurisdiction of the Sandiganbayan is
set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.
We first address petitioner’s contention that the jurisdiction of the Sandiganbayan is
determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act,
as amended). We note that petitioner refers to Section 4 of the said law yet quotes
Section 4 of P.D. No. 1606, as amended, in her motion to quash before the
Sandiganbayan.25She repeats the reference in the instant petition for certiorari26 and
in her memorandum of authorities.27
We cannot bring ourselves to write this off as a mere clerical or typographical error. It
bears stressing that petitioner repeated this claim twice despite corrections made by
the Sandiganbayan.28
Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No.
3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief
legislative history of the statute creating the Sandiganbayan is in order. The
Sandiganbayan was created by P.D. No. 1486, promulgated by then President
Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest
norms of official conduct required of public officers and employees, based on the
concept that public officers and employees shall serve with the highest degree of
responsibility, integrity, loyalty and efficiency and shall remain at all times accountable
to the people.29
P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on
December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan. 30
P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further
altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995
made succeeding amendments to P.D. No. 1606, which was again amended on
February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the
jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has
jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time
of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade "27" and higher, of the
Compensation and Position Classification Act of 989 (Republic Act No.
6758), specifically including:
" (a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other city
department heads;
" (b) City mayor, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
"(c ) Officials of the diplomatic service occupying the position of consul and
higher;
" (d) Philippine army and air force colonels, naval captains, and all officers of
higher rank;
" (e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintended or
higher;
" (f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
" (g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations.
" (2) Members of Congress and officials thereof classified as Grade "27'" and
up under the Compensation and Position Classification Act of 1989;
" (3) Members of the judiciary without prejudice to the provisions of the
Constitution;
" (4) Chairmen and members of Constitutional Commission, without
prejudice to the provisions of the Constitution; and
" (5) All other national and local officials classified as Grade "27'" and higher
under the Compensation and Position Classification Act of 1989.
B. Other offenses of felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection a
of this section in relation to their office.
C. Civil and criminal cases filed pursuant to and in connection with Executive
Order Nos. 1, 2, 14 and 14-A, issued in 1986.
" In cases where none of the accused are occupying positions corresponding
to Salary Grade "27'" or higher, as prescribed in the said Republic Act No.
6758, or military and PNP officer mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional court, metropolitan
 trial court, municipal trial court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129, as amended.
" The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or order of regional trial courts whether in the
exercise of their own original jurisdiction or of their appellate jurisdiction as
herein provided.
" The Sandiganbayan shall have exclusive original jurisdiction over petitions
for the issuance of the writs of mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and processes in aid of its
appellate jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the
jurisdiction over these petitions shall not be exclusive of the Supreme Court.
" The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may
thereafter promulgate, relative to appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for review filed with the
Sandiganbayan. In all cases elevated to the Sandiganbayan and from the
Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
through its special prosecutor, shall represent the People of the Philippines,
except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.
" In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed
in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees in the proper courts which shall
exercise exclusive jurisdiction over them.
" Any provisions of law or Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil
liability shall, at all times, be simultaneously instituted with, and jointly
determined in, the same proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to reserve
the filing such civil action separately from the criminal action shall be
recognized: Provided, however, That where the civil action had heretofore
been filed separately but judgment therein has not yet been rendered, and
the criminal case is hereafter filed with the Sandiganbayan or the appropriate
court, said civil action shall be transferred to the Sandiganbayan or the
appropriate court, as the case may be, for consolidation and joint
determination with the criminal action, otherwise the separate civil action
shall be deemed abandoned."
Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960.
The said law represses certain acts of public officers and private persons alike which
constitute graft or corrupt practices or which may lead thereto. 31 Pursuant to Section
10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with
the Sandiganbayan.32
R.A. No. 3019 does not contain an enumeration of the cases over which the
Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited
by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition
on private individuals. We quote:
Section 4. Prohibition on private individuals. – (a) It shall be unlawful for any
person having family or close personal relation with any public official to
capitalize or exploit or take advantage of such family or close personal
relation by directly or indirectly requesting or receiving any present, gift or
material or pecuniary advantage from any other person having some
business, transaction, application, request or contract with the government,
in which such public official has to intervene. Family relation shall include the
spouse or relatives by consanguinity or affinity in the third civil degree. The
word "close personal relation" shall include close personal friendship, social
and fraternal connections, and professional employment all giving rise to
intimacy which assures free access to such public officer.
(b) It shall be unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 hereof.
In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the
jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and
corrupt practices and provides for their penalties.
Sandiganbayan has jurisdiction over
the offense of estafa.
Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among
those crimes cognizable by the Sandiganbayan. We note that in hoisting this
argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without
regard to the succeeding paragraphs of the said provision.
The rule is well-established in this jurisdiction that statutes should receive a sensible
construction so as to avoid an unjust or an absurd conclusion. 33 Interpretatio talis in
ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is
ambiguity, such interpretation as will avoid inconvenience and absurdity is to be
adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat
maging mahirap at katawa-tawa.
Every section, provision or clause of the statute must be expounded by reference to
each other in order to arrive at the effect contemplated by the legislature. 34 The
intention of the legislator must be ascertained from the whole text of the law and
every part of the act is to be taken into view.35 In other words, petitioner’s
interpretation lies in direct opposition to the rule that a statute must be interpreted as
a whole under the principle that the best interpreter of a statute is the statute
itself.36 Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat
na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang
pinakamainam na interpretasyon ay ang mismong batas.
Section 4(B) of P.D. No. 1606 reads:
B. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection a
of this section in relation to their office.
Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public
officials in relation to their office. We see no plausible or sensible reason to
exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606.
Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the
twin requirements that (a) the offense is committed by public officials and employees
mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is
committed in relation to their office.
People,37
In Perlas, Jr. v. the Court had occasion to explain that the Sandiganbayan
has jurisdiction over an indictment for estafa versus a director of the National Parks
Development Committee, a government instrumentality. The Court held then:
The National Parks Development Committee was created originally as an
Executive Committee on January 14, 1963, for the development of the
Quezon Memorial, Luneta and other national parks (Executive Order No.
30). It was later designated as the National Parks Development Committee
(NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs.
Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and
Vice-Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to
the Bureau of Forest Development, Department of Natural Resources, on
December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD
No. 830, dated November 27, 1975), the NPDC has remained under the
Office of the President (E.O. No. 709, dated July 27, 1981).
Since 1977 to 1981, the annual appropriations decrees listed NPDC as a
regular government agency under the Office of the President and allotments
for its maintenance and operating expenses were issued direct to NPDC
(Exh. 10-A, Perlas, Item Nos. 2, 3).
The Sandiganbayan’s jurisdiction over estafa was reiterated with greater firmness
in Bondoc v. Sandiganbayan.38Pertinent parts of the Court’s ruling in Bondoc read:
Furthermore, it is not legally possible to transfer Bondoc’s cases to the
Regional Trial Court, for the simple reason that the latter would not have
jurisdiction over the offenses. As already above intimated, the inability of the
Sandiganbayan to hold a joint trial of Bondoc’s cases and those of the
government employees separately charged for the same crimes, has not
altered the nature of the offenses charged, as estafa thru falsification
punishable by penalties higher than prision correccional or imprisonment of
six years, or a fine of P6,000.00, committed by government employees in
conspiracy with private persons, including Bondoc. These crimes are within
the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot
be taken cognizance of by the regular courts, apart from the fact that even if
the cases could be so transferred, a joint trial would nonetheless not be
possible.
Petitioner UP student regent
is a public officer.
Petitioner also contends that she is not a public officer. She does not receive any
salary or remuneration as a UP student regent. This is not the first or likely the last
time that We will be called upon to define a public officer. In Khan, Jr. v. Office of the
Ombudsman, We ruled that it is difficult to pin down the definition of a public
officer.39 The 1987 Constitution does not define who are public officers. Rather, the
varied definitions and concepts are found in different statutes and jurisprudence.
In Aparri v. Court of Appeals,40 the Court held that:
A public office is the right, authority, and duty created and conferred by law,
by which for a given period, either fixed by law or enduring at the pleasure of
the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercise by him for the benefit
of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold
a public office under our political system is therefore not a natural right. It
exists, when it exists at all only because and by virtue of some law expressly
or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no
such thing as a vested interest or an estate in an office, or even an absolute
right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any
vested right in an office or its salary (42 Am. Jur. 881).
In Laurel v. Desierto,41 the Court adopted the definition of Mechem of a public office:
"A public office is the right, authority and duty, created and conferred by law,
by which, for a given period, either fixed by law or enduring at the pleasure
of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit
of the public. The individual so invested is a public officer." 42
Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a
regular tuition fee-paying student. This is likewise bereft of merit. It is not only the
salary grade that determines the jurisdiction of the Sandiganbayan. The
Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606.
In Geduspan v. People,43 We held that while the first part of Section 4(A) covers only
officials with Salary Grade 27 and higher, its second part specifically includes other
executive officials whose positions may not be of Salary Grade 27 and higher but who
are by express provision of law placed under the jurisdiction of the said court.
Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by
express provision of law.44
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with
jurisdiction over Presidents, directors or trustees, or managers of government-owned
or controlled corporations, state universities or educational institutions or foundations.
Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR
performs functions similar to those of a board of trustees of a non-stock
corporation.45 By express mandate of law, petitioner is, indeed, a public officer as
contemplated by P.D. No. 1606.
Moreover, it is well established that compensation is not an essential element of
public office.46 At most, it is merely incidental to the public office.47
Delegation of sovereign functions is essential in the public office. An investment in an
individual of some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public makes one a public officer. 48
The administration of the UP is a sovereign function in line with Article XIV of the
Constitution. UP performs a legitimate governmental function by providing advanced
instruction in literature, philosophy, the sciences, and arts, and giving professional
and technical training.49 Moreover, UP is maintained by the Government and it
declares no dividends and is not a corporation created for profit. 50
The offense charged was committed
in relation to public office, according
to the Information.
Petitioner likewise argues that even assuming that she is a public officer, the
Sandiganbayan would still not have jurisdiction over the offense because it was not
committed in relation to her office.
According to petitioner, she had no power or authority to act without the approval of
the BOR. She adds there was no Board Resolution issued by the BOR authorizing
her to contract with then President Estrada; and that her acts were not ratified by the
governing body of the state university. Resultantly, her act was done in a private
capacity and not in relation to public office.
It is axiomatic that jurisdiction is determined by the averments in the
information.51 More than that, jurisdiction is not affected by the pleas or the theories
set up by defendant or respondent in an answer, a motion to dismiss, or a motion to
quash.52 Otherwise, jurisdiction would become dependent almost entirely upon the
whims of defendant or respondent.53
In the case at bench, the information alleged, in no uncertain terms that petitioner,
being then a student regent of U.P., "while in the performance of her official
functions, committing the offense in relation to her office and taking advantage of her
position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a
private individual, did then and there wilfully, unlawfully and feloniously defraud the
government x x x." (Underscoring supplied)
Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan
when it did not quash the information based on this ground.
Source of funds is a defense that should
be raised during trial on the merits.
It is contended anew that the amount came from President Estrada’s private funds
and not from the government coffers. Petitioner insists the charge has no leg to stand
on.
We cannot agree. The information alleges that the funds came from the Office of the
President and not its then occupant, President Joseph Ejercito Estrada. Under the
information, it is averred that "petitioner requested the amount of Fifteen Million Pesos
(P15,000,000.00), Philippine Currency, from the Office of the President, and the latter
relying and believing on said false pretenses and misrepresentation gave and
delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the
amount of Fifteen Million Pesos (P15,000,000.00)."
Again, the Court sustains the Sandiganbayan observation that the source of
the P15,000,000 is a matter of defense that should be ventilated during the trial on the
merits of the instant case.54
A lawyer owes candor, fairness
and honesty to the Court.
As a parting note, petitioner’s counsel, Renato G. dela Cruz, misrepresented his
reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No.
3019. A review of his motion to quash, the instant petition for certiorari and his
memorandum, unveils the misquotation. We urge petitioner’s counsel to observe
Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the
Rules stating that "a lawyer shall not misquote or misrepresent."
The Court stressed the importance of this rule in Pangan v. Ramos,55 where Atty
Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal
case. The Court ruled that Atty. Ramos resorted to deception by using a name
different from that with which he was authorized. We severely reprimanded Atty.
Ramos and warned that a repetition may warrant suspension or disbarment. 56
We admonish petitioner’s counsel to be more careful and accurate in his citation. A
lawyer’s conduct before the court should be characterized by candor and
fairness.57 The administration of justice would gravely suffer if lawyers do not act with
complete candor and honesty before the courts.58
WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.
 June 5, 2017
1996 Chief Customs Operations Officer

G.R. No. 192723

Marina Rios (Marina), Leovigildo's wife, also served in government. Sometime in July
LEOVIGILDO A. DE CASTRO, Petitioner 1969, Marina began working as a clerk in the now defunct Philippine Atomic Energy
vs. Commission.9Thereafter, Marina rose through the ranks, until she retired as a training
FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN and the officer sometime in 1988.10
COMMISSIONER OF CUSTOMS, Respondents
Based on the Certificates of Employment and Compensation which form part of the
DECISION records of the case, Leovigildo and Marina's declared income from 1974 to 2004
amounted to ₱l0,841,412.28. 11

CAGUIOA, J.:
The Case
This is a petition for review on certiorari1 (Petition) filed under Rule 45 of the Rules of
Court against the Decision2dated April 29, 2009 (Assailed Decision) and
Resolution3 dated June 23, 2010 (Assailed Resolution) in CA-G.R. SP No. 99752
rendered by the Second Division of the Court of Appeals (CA). The Assailed Decision
and Resolution stem from an appeal from the Decision 4 dated March 26, 2007
rendered by the Office of the Ombudsman (Ombudsman) in OMB-C-A-05-0617-K,
finding petitioner Leovigildo A. De Castro (Leovigildo) guilty of Dishonesty and Grave
Misconduct, and imposing upon him the penalty of dismissal from service,
cancellation of civil service eligibility, forfeiture of retirement benefits, and perpetual
disqualification from re-employment in the government service.
The' administrative charges filed against Leovigildo are anchored on his alleged
failure to file truthful Statements of Assets and Liabilities (SALNs) for the years 1994,
1995 and 1996, and explain the manifest disproportion between his declared income
for the years 1973 to 2004 and the value of the assets he acquired within the same
period.5
The Facts
Sometime in 2003, the Ombudsman, through its Field Investigation Office (FIO),
conducted motu proprio lifestyle checks on government officials and
employees. 12Leovigildo was among those evaluated. The findings of the FIO in
respect of Leovigildo's assets and net worth are summarized as follows:
Documents revealed that [Leovigildo] earns primarily from his salary as an employee
of the [BOC]. [Leovigildo's] annual salary as of 2004 is estimated at [₱]303,052.54,
including allowances and bonuses.
[Leovigildo's] [SALN] from 1994 to 2003 showed that neither he nor his spouse had
financial connections and business interests. Thus, [Leovigildo] [had] no other source
of income except his salary from employment.
Leovigildo ], in his SALN from 1997 to 2003, declared a residential house and lot in
Parafiaque, a house and lot in Taal[,] Batangas, and an agricultural land in Laguna.
[Leovigildo] also disclosed that he acquired a car worth [₱]625,000.00 in 2002.
Records show that there are other properties and business interests belonging to
[Leovigildo] which were not declared in his SALN s such as his investments
amounting to ₱416,669.00 in Lemar Export and Import Corporation, which was
incorporated on 25 May 1994.

Leovigildo began working in the Bureau of Customs (BOC) on December 4, 19736 as There are also properties registered under the name (sic) of [Leovigildo's] children,
storekeeper at the Manila International Airport.7 Since then, Leovigildo had been which should be considered as part of his undisclosed assets, in view of the fact that
assigned to occupy the following positions:8 during the time of the acquisition, the children have (sic) no sources of income or
means of livelihood of their own. 13

Year of Assignment Position The assets in the names of Leovigildo' s children (Disputed Assets), which FIO
alleged should be attributed to Leovigildo, are further summarized as follows: 14
1979 Common Bonded Inspector

1980 Common Bonded Supervisor Acquisition Date of

Asset Registered Owner Age at Acquisitio
Cost Acauisition
1986 Customs Operations Assistant Chief
Investment in May 25, Marina Rose and Leo Gerald, Marina Rose – 18
₱625,003.50
1989 Supervising Customs Operations Officer
Lemar Export 1994 jointly with Leovigildo Leo Gerald – 24
 taken seventy (70) outbound flights between 1993-2004 to several countries,
and Import
including Japan, Hong Kong and South Korea. The FIO pegged the cost of such trips
Corporation
at ₱30,000.00 each, bringing the De Castros' total estimated travel cost
Lemar Corp.)
to ₱2,100,000.00. 17
450 square-
meter (sq. m.) Consequently, the FIO concluded that Leovigildo and Marina's assets and expenses
December from 1974-2004 amounted to ₱30,829,603.48, 18 and found that this was manifestly
residential ₱5,708,600.0015 Leo Gerald 27
3, 1997 disproportionate to their declared income of ₱l0,841,412.28. 19
ouse and lot in
Muntinlupa City
Proceedings before the Ombudsman
nvestment in
February
De Castro Oral ₱500,000.00 Leo Gerald 28
28, 1998 Subsequently, the FIO filed a Complaint20 dated October 5, 2005 before the
mplant Center
Ombudsman, charging Leovigildo of Dishonesty, Grave Misconduct and Conduct
Condominium Prejudicial to the Best Interest of the Service, pursuant to Section 22 of the Omnibus
August 28, Rules Implementing Book V of Executive Order No. 29221 (Omnibus Rules).22 In the
unit in Makati ₱3,984,929.75 Leo Gerald 28
1998 same Complaint, FIO prayed that (i) a preliminary investigation be conducted against
City
Leovigildo for violation of Section 8 of Republic Act No. (R.A.) 671323and Article 183
Leo Gerald of the Revised Penal Code;24and (ii) forfeiture proceedings be lodged against
25
Marie Aleli Leo Gerald – 29 Leovigildo, Marina, and their children.
nvestment in
(Aleli) Aleli – 28
emar General February 2,
₱3,500,000.0016 Marie Antoinette Antoinette – 26 On March 24, 2006, the Ombudsman issued an Order placing Leovigildo under
rading (Lemar 1999
(Antoinette) Leovigildo, Jr. – 24
preventive suspension.26
Trading)
Leovigildo, Jr. Marina Rose – 23
Marina Rose In his Counter-Affidavit27 dated August 28, 2006, Leovigildo maintained that the
assets which he and Marina acquired while in government service were all reported in
Condominium
their respective SALNs. Leovigildo summarized these assets accordingly:
unit in Ayala
₱5,676,861.64 July 8, 1999 Leovigildo, Jr. 24
Alabang,
Muntinlupa City

Toyota Land June 19,

₱2,800,000.00 Leo Gerald 30
Cruiser 2000

nvestment in
Ceraco December
₱120,000.00 Leovigildo, Jr. 26
Corporation 19, 2001
(Ceraco)

nvestment in
January 21,
Le Mar Dental ₱l00,000.00 Marina Rose 27
2003
Clinic

₱701,832.00
Honda CRV February
on installment Marina Rose 28
Wagon 27, 2004
basis

Total Value ₱23,717,226.89

In addition to Leovigildo's alleged undisclosed assets and investments, the FIO also
found that based on Bureau of Immigration (Bl) records, Leovigildo and his family had
 Income from 1974 to 2004 ₱10,841,412.28
Leo Gerald Dentistry, 1994 (i) service in various dental clinics; (ii) service in
Centro Escolar own clinic at the Medical Plaza, Makati; (iii) servic
Less: Properties acquired (at University as professor at Our Lady of Fatima University; (iv
acquisition cost): service as company dentist at Global Lighting Phi
₱381,536.59
Inc.; (v) rental income from clinic space; and (vi)
135,000.00
- House and [lot], sales income from Lemar Trading32
30,000.00
Paranaque 500,000.00
- House and lot at Taal, Leovigildo, Jr. Law, Ateneo de 2000 (i) service as associate for Quasha Ancheta Pena
530,000.00
Batangas Manila and Nolasco Law Office; (ii) service as Chief Lega
₱l,576,536.59
- Agricultural land, Sta. University Counsel of Philippine Power Distributors Investme
Maria, Laguna Corporation; (iii) service as External Legal Couns
- Toyota Premio of Seed Capital Ventures Inc.; and (iv) service as
- Other personal properties ₱l,000,000.00 Special Consultant for P.A. Garcia Law Office33

250,000.00 Aleli Medicine, 1998 Service as gastroenterologist at the Institute of

Expenses: (2,826,536.59) University of Digestive Diseases, St. Luke's Medical Center in
₱l,250,000.00
Sto. Tomas Quezon City35
- Cash donation to Leo ₱8,014,875.69
Gerald, 1995 Antoinette Medicine, 1998 Service as gastroenterologist at the Institute of
- Wedding gift to Leo Gerald 115,000.00 University of Digestive Diseases, St. Luke's Medical Center in
and Sto. Tomas Quezon City35
Angelica Beatriz, 1998
₱7,899,875.69
Marina Rose Dentistry, 1999 (i) service in various dental clinics; (ii) service in
University of own clinic in Carmona, Cavite; and (iii) service as
Available funds for family/other the East company dentist for Provident Apparel Internation
expenses Manufacturing Corporation36

Less: Cash on hand [as of] Finally, Leovigildo denied FIO's claims regarding his family's foreign trips,
December 31, 2004 emphasizing that the documents which serve as basis for these claims were not
attached to the Complaint. 37
Actual family and other expenses
28
On March 26, 2007, the Ombudsman issued a Decision finding Leovigildo guilty of the
administrative charges against him. The relevant portion of said Decision reads:
Based on these figures, Leovigildo averred that the net value of the assets he and
Marina acquired for the period in question amounts only to ₱l,576,536.59. 29Further, [R]espondent LEOVIGILDO DE CASTRO is hereby found GUILTY of DISHONESTY
he also argued that FIO bloated his net worth by using the market values of the and GRAVE MISCONDUCT and is meted the corresponding penalty of DISMISSAL
properties declared in his SALN s as basis for their computation, instead of using their FROM THE SERVICE and shall carry with it the cancellation of eligibility, forfeiture of
respective acquisition costs. 30 retirement benefits and perpetual disqualification for re-employment in the
government service.38
Leovigildo also insisted that his children are all professionals who possess the
financial capacity to acquire the Disputed Assets that FIO wrongfully attributed to The Ombudsman observed that while Leovigildo admits that he and his wife acquired
him.31He then proceeded to detail his children's professional qualifications to bolster a house and lot in Taal, Batangas through inheritance in 1969, and subsequently
his defense: purchased a 197.6 sq. m. contiguous lot and built a house thereon in 1973 and 1988,
respectively, these assets were not reported in his 1994, 1995 and 1996
SALNs.39Leovigildo also failed to report that his wife won ₱2,000,000.00 from the
Degree Acquisition Sources of Income sweepstakes in 1994.40
of license

In addition, the Ombudsman found that while Leovigildo' s children were all practicing
professionals at the time of the investigation, the documentary evidence on record
show that the cost of the Disputed Assets were grossly disproportionate to their
respective incomes at the time of acquisition.41 Thus, the Ombudsman concluded that
Leovigildo deliberately placed the Disputed Assets in the names of his children to
exclude them from his SALNs.42According to the Ombudsman, such deliberate
exclusion, coupled with the fact that the acquisition cost of the Disputed Assets were
manifestly out of proportion to Leovigildo and Marina's declared income, gave rise to
the prima facie presumption that these assets were unlawfully acquired. 43
Leovigildo filed a Motion for Reconsideration (MR) dated May 2, 2007, which the
Ombudsman denied on June 25, 2007 for lack ofmerit. 44
Proceedings before the CA
On August 1, 2007, Leovigildo filed an appeal (Appeal) before the CA via Rule 43,
ascribing both errors of fact and law to the Ombudsman.
Leovigildo questioned the Ombudsman's authority to directly review his SALNs,
arguing that under Section 10 of R.A. 6713, it is the Commissioner of Customs who is
vested with authority to review the SALNs filed by the employees of the BOC. 45
Further, Leovigildo insisted that the Ombudsman's findings were not supported by
substantial evidence.46 While Leovigildo admitted that he failed to report his Taal
assets in his 1994, 1995 and 1996 SALNs, he claimed that such failure was an
honest mistake which he voluntarily rectified in his succeeding SALNs. 47 Moreover,
Leovigildo argued he did not report Marina's sweepstakes winnings in his 1994 SALN
as these are not among the assets required to be reported thereunder. 48
In any case, Leovigildo maintained that under BOC guidelines, 49the penalty
prescribed for failure to file or correct an erroneous SALN is only suspension for a
period of one (1) month and one (1) day to six (6) months on the first instance and
dismissal from service on the second instance. Moreover, such offense does not
constitute Dishonesty or Gross Misconduct. 50
On April 29, 2009, the CA rendered the Assailed Decision dismissing the Appeal. The
dispositive portion of said Decision reads:
WHEREFORE, premises considered, the instant petition is DISMISSED. Accordingly,
the assailed Decision and Order of the Ombudsman STAND.
SO ORDERED.51
The CA held that the Ombudsman possesses ample authority to review Leovigildo's
SALN pursuant to its Constitutional mandate.52
Anent Leovigildo's claim that the omissions in his 1994, 1995 and 1996 SALNs were
not impelled by any malicious intent, the CA stressed that Leovigildo's liability rests
not only on the basis of such omissions, but primarily on his failure to explain the
manifest disproportion between his declared income and the assets in his name, and
in the names of his children.53In this connection, the CA found the Ombudsman's
findings were supported by "more than [a] substantial amount" of evidence, and thus
found no reason to overturn the same. 54
Aggrieved, Leovigildo filed an MR on May 22, 2009. The CA denied said MR through
the Assailed Resolution, 55which was subsequently received by Leovigildo on July 5,
2010.56
On July 19, 2010, Leovigildo filed a Motion for Extension of Time, praying for an
additional period of fifteen (15) days within which to file his petition for review
on certiorari before the Court.
Finally, Leovigildo filed the present Petition on August 2, 2010.
The Issue
The sole issue for this Court's resolution is whether the CA erred in affirming the
Assailed Decision and Resolution finding Leovigildo administratively liable for
Dishonesty and Grave Misconduct.
The Court's Ruling
As a general rule, only questions of law may be raised in petitions filed under Rule
45.57However, there are recognized exceptions to this general rule, namely:
(1) when the findings are grounded entirely on speculation, surmises or conjectures;
(2) when the inference made is manifestly mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in
making its findings the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the appellee; (7)
when the findings are contrary to the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioner's main and reply briefs are not disputed
by the respondent; (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record; and (11) when the
Court of Appeals manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a different conclusion. x x x58
(Emphasis supplied)
The allegations in the Petition invoke the third, fourth, fifth and eighth exceptions
above, and call on this Court to review the findings of the Ombudsman in the Assailed
Decision, which were in tum affirmed by the CA.
The Petition is granted, in part. The Court finds that while the CA correctly ruled that
Leovigildo's acts constitute Dishonesty, it erred when it further held that such acts
also constitute Grave Misconduct. Accordingly, the Court finds sufficient basis to
warrant the modification of the Assailed Decision in this respect.
The Ombudsman possesses sufficient authority to undertake a direct review of
Leovigildo's SALN
Leovigildo claims that he does not question the general authority of the Ombudsman
to investigate and prosecute erring public officials and employees. However, he
submits that Section 10 of R.A. 6713 vests upon heads of executive departments
the specific and direct authority to review their subordinates' SALNs. Proceeding
therefrom, Leovigildo alleges that the review, investigation and corrective action taken
by the Ombudsman collectively constitute a violation of R.A. 6713, an encroachment
of the authority of the Commissioner of Customs, 59and a blatant disregard of the
latter's guidelines prescribing the review and compliance procedure for the
submission of SALNs governing the employees and officials of the BOC. 60Leovigildo
is mistaken.
Section 10 of R.A. 6713 provides:
Section 10. Review and Compliance Procedure. - (a) The designated Committees of
both Houses of the Congress shall establish procedures for the review of statements
to determine whether said statements have been submitted on time, are complete,
and are in proper form. In the event a determination is made that a statement is not
so filed, the appropriate Committee shall so inform the reporting individual and direct
him to take the necessary corrective action.
(b) In order to carry out their responsibilities under this Act, the designated
Committees of both Houses of the Congress shall have the power, within their
respective jurisdictions, to render any opinion interpreting this Act, in writing, to
persons covered by this Act, subject in each instance to the approval by affirmative
vote of the majority of the particular House concerned.
The individual to whom an opinion is rendered, and any other individual involved in a
similar factual situation, and who, after issuance of the opinion acts in good faith in
accordance with it shall not be subject to any sanction provided in this Act.
(c) The beads of other offices shall perform the duties stated in subsections (a) and
(b) hereof insofar as their respective offices are concerned, subject to the approval of
the Secretary of Justice, in the case of the Executive Department and the Chief
Justice of the Supreme Court, in the case of the Judicial Department. (Emphasis
supplied)
Section 10 of R.A. 6713 vests upon heads of executive departments the authority to
ensure faithful compliance with the SALN requirement. However, it does not strip the
Ombudsman of its sole power to investigate and prosecute, motu proprio or upon
complaint of any person, any public official or employee for acts or omissions which
appear to be illegal, unjust, improper, or inefficient.61The Court's ruling in Carabeo v.
Sandiganbayan62 is instructive:
True, Section 10 of R.A. 6713 provides that when the head of office finds the SALN of
a subordinate incomplete or not in the proper form such head of office must call the
subordinate's attention to such omission and give him the chance to rectify the same.
But this procedure is an internal office matter. Whether or not the head of office has
taken such step with respect to a particular subordinate cannot bar the Office of the
Ombudsman from investigating the latter. Its power to investigate and prosecute
erring government officials cannot be made dependent on the prior action of another
office. To hold otherwise would be to diminish its constitutionally guarded
independence.63(Emphasis supplied)
The fact that Leovigildo had not been previously placed under a BOC sanctioned
investigation does not make the Ombudsman's acts void or premature, as the latter's
power to investigate and prosecute him on account of discrepancies in his SALNs
stands independent of the power of the Commissioner of Customs to ensure
compliance with the SALN requirement within the BOC.
Leovigildo's acts do not constitute Grave Misconduct
Leovigildo's administrative liability primarily rests on his failure to faithfully comply with
the SALN requirement, and the acquisition of assets manifestly disproportionate to his
lawful income. These acts, while undoubtedly inimical to public service, do not
constitute Grave Misconduct.
Misconduct has been defined as an intentional wrongdoing or a deliberate violation of
a rule of law or standard of behavior.64Misconduct is grave where the elements of
corruption, a clear intent to violate the law, or a flagrant disregard of established rules
are present.65To constitute
Misconduct, the act or omission complained of must have a direct relation to the
public officer's duties and affect not only his character as a private individual, but also,
and more importantly, the performance of his official duties as a public servant.66
Hence, to hold Leovigildo liable for Grave Misconduct, the acts and omissions for
which he was charged must be of such character as to have had an effect on his
duties as Chief Customs Operations Officer. The Court finds that such is not the case.
The Court's ruling in Gupilan-Aguilar v. Office of the Ombudsman67is in point:
Owning properties disproportionate to one's salary and not declaring them in the
corresponding SALNs cannot, without more, be classified as grave misconduct. Even
if these allegations were true, we cannot see our way clear how the fact of non-
declarations would have a bearing on the performance of functions by petitioner
Aguilar, as Customs Chief of the Miscellaneous Division, and by petitioner
Hernandez, as Customs Operations Officer. It is non-sequitur to assume that the
omission to declare has served, in some way, to hinder the rendition of sound public
service for there is no direct relation or connection between the two. Without a nexus
between the act complained of and the discharge of duty, the charge of grave
misconduct shall necessarily fail. 68(Emphasis supplied)
Nevertheless, Leovigildo cannot be completely absolved of liability.
There exists substantial evidence on record to hold Leovigildo liable for Dishonesty.
To counter the charge of Dishonesty, Leovigildo argues that the Ombudsman's
findings are grounded entirely on speculation, surmises and conjectures, and that the
CA, in tum, failed to appreciate important facts which, if properly considered, will
justify a reversal of the Ombudsman's findings. 69In particular, Leovigildo adopts the
allegations in his Appeal and asserts that the Ombudsman (i) failed to attach the BI
records which supposedly prove that he and his family had taken seventy (70) foreign
trips while he was in government service,70and (ii) glossed over his children's
professional qualifications, as well as other circumstances which prove that they each
had the financial capacity to legitimately acquire the Disputed Assets which were
attributed to him. 71
After a perusal of the Ombudsman's submissions, the Court finds that the disputed BI
records which serve as the latter's proof of the De Castros' alleged foreign trips do not
form part of the records of the case. The value the Ombudsman used to quantify the
cost of these alleged trips (₱30,000.00 for each trip) was a "conservative
estimate"72which the latter appears to have arbitrarily assigned for expediency.
Before a foreign trip taken by a public officer can be considered as proof of
unexplained wealth, it shall be first necessary to establish that the cost thereof is, in
fact, manifestly disproportionate to the latter's lawful income. Thus, in Pleyto v. PNP-
Criminal Investigation and Detection Group,73the Court refused to consider the foreign
trips alleged to have been taken by respondent therein as proof of unexplained wealth
for failure of the complainant therein to establish that the cost of these trips were
beyond the former's capacity to pay, hence:
The travel records from the BID could only establish the details on the trips taken by
petitioner and his wife, specifically, the dates of departure and arrival, the destination,
and the frequency thereof. Even these details were at times incomplete or
contradictory. x x x It appears to this Court that complete reliance was made on the
travel records provided by the BID. No further effort was exerted to complete the
travel information of petitioner and his wife and clarify or reconcile confusing entries.
It is a long jump to conclude just from the BID travel records that the foreign travels
taken by petitioner and his wife were beyond their financial capacity. As this Court has
already found, petitioner had other sources of lawful income apart from his salary as a
public official. His wife was also earning substantial income from her businesses. Now
the question is, whether the petitioner and his wife could afford all their trips abroad
considering their combined income.
Obviously, before this question can be answered, the cost of the trips must be initially
determined. The investigating officers of the PNP-CIDG estimated the cost of each
trip to be ₱100,000.00, an estimation subsequently adopted by the Office of the
Ombudsman and the Court of Appeals. This Court, though, cannot simply affirm such
estimation.
x x x The investigating officers, in fixing the amount of all the foreign trips at
₱100,000.00 each, offered no explanation or substantiation for the same. With utter
lack of basis, the figure of ₱100,000.00 as cost for each foreign travel is random and
arbitrary and, thus, unacceptable to this Court. Without a reasonable estimation of the
costs of the foreign travels of petitioner and his wife, there is no way to determine
whether these were within their lawful income. 74(Emphasis supplied)
Proceeding therefrom, the Court finds that the CA erred when it considered the
Ombudsman's findings regarding the De Castros' alleged foreign trips as established
facts, in the absence of substantial evidence showing that such trips were in fact
taken, and that it was reasonable to peg the total cost of these trips at ₱2,100,000.00.
Nevertheless, the Court still finds that substantial evidence exists on record to hold
Leovigildo guilty of Dishonesty for having acquired assets manifestly disproportionate
to his lawful income, and concealing the same by deliberately placing them in the
names of his children.
Sections 7 and 8 of R.A. 301975 spells out the SALN requirement and lays down its
scope. These provisions state:
Section 7. Statement of Assets and Liabilities. - Every public officer, within thirty days
after assuming office and, thereafter, on or before the fifteenth day of April following
the close of every calendar year, as well as upon the expiration of his term of office,
or upon his resignation or separation from office, shall prepare and file with the office
of the corresponding Department Head, or in the case of Head of Department or Chief
of an independent office, with the Office of the President, a true, detailed and sworn
statement of assets and liabilities, including a statement of the amounts and sources
of his income, the amounts of his personal and family expenses and the amount of
income taxes paid for the next preceding calendar year: Provided, That public officers
assuming office less than two months before the end of the calendar year, may file
their first statement on or before the fifteenth day of April following the close of the
said calendar year.
Section 8. Prima facie evidence of and dismissal due to unexplained wealth. - If in
accordance with the provisions of Republic Act Numbered One thousand three
hundred seventy-nine, a public official has been found to have acquired during his
incumbency, whether in his name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to his salary and to his other lawful
income, that fact shall be ground for dismissal or removal. Properties in the name of
the spouse and dependents of such public official may be taken into consideration,
when their acquisition through legitimate means cannot be satisfactorily shown. Bank
deposits in the name of or manifestly excessive expenditures incurred by the public
official, his spouse or any of their dependents including but not limited to activities in
any club or association or any ostentatious display of wealth including frequent travel
abroad of a non-official character by any public official when such activities entail
expenses evidently out of proportion to legitimate income, shall likewise be taken into
consideration in the enforcement of this section, notwithstanding any provision of law
to the contrary. The circumstances hereinabove mentioned shall constitute valid
ground for the administrative suspension of the public official concerned for an
indefinite period until the investigation of the unexplained wealth is completed.
(Emphasis supplied)
While mere omission from or misdeclaration in one's SALN per se do not constitute
Dishonesty, an omission or misdeclaration qualifies as such offense when it is
 76as
attended with malicious intent to conceal the truth, Dishonesty implies a
disposition to lie, cheat, deceive, or defraud. 77
Here, Leovigildo's malicious intent to conceal the Disputed Assets is evident.
Leovigildo deliberately placed the Disputed Assets in the names of his children for the
purpose of concealing the same. While Leovigildo maintains that his children had the
financial capacity to acquire the Disputed Assets, the evidence on record clearly show
otherwise. As painstakingly explained by the CA:
Remarkably, as can be gleaned from the records, albeit at present they are all
lucratively employed, [Leovigildo's] children were able to acquire real and personal
properties despite the fact that at the time of the said properties' acquisition they had
no financial capacity to do so. [Leovigildo] failed to convince [the CA] to overturn the
factual findings of the Ombudsman on this matter which is notably supported by a
more than substantial amount of evidence.
For one, LEO GERALD, his eldest son, is the registered owner of a condominium unit
located in Makati City which was acquired in 1995 through installment basis and fully
paid in 1998 in the total amount of ₱3,984,929.75. The terms of payment which were
purportedly undertaken by LEO GERALD in the purchase of the aforesaid unit are the
following:
1. [O]n 1September 1994, LEO GERALD paid ₱l00,000.[00];
2. [H]e paid ₱447,323.96 per month for three [3] months starting October 1994 to
December 1994 or a total of ₱l,341,971.90; P90,123.24 per month for 24 months
starting January 1995 to November 1996 or a total of ₱2,542,957.85; and
3. [H]is last payment was on 2 December 1996 in the amount of ₱470,123.33.
However, [Leovigildo's] explanation relative thereto is totally unsatisfactory. As
correctly observed by the Ombudsman, it was only on 3 January 1994 when LEO
GERALD was issued his license to practice his dental profession, thus, it is highly
incredible that he could have afforded to comply with the abovementioned terms of
payment. Truly, [the CA] can not come to terms with [Leovigildo's] stance that on LEO
GERALD's first year as a dentist, i.e., in 1994, the latter had earned close to P l.5
million. x x x
x x xx.
Moreover, records show that in 1994 LEO GERALD likewise made an investment with
Lemar Export and Import Corporation worth ₱208,334.50.1âwphi1 Then, a year after
LEO GERALD allegedly paid the last installment for the aforementioned condominium
unit, he purchased a 450 square meter property in Muntinlupa in the amount of
₱3,825,000.00. Thereafter, a house was built thereon which was valued at
₱l,883,600.00. [Leovigildo] argues that the lot acquisition was financed by LEO
GERALD's soon-to-be parents-in-law, while the money used in the investment was
advanced by Atty. RODRIGO STA. ANA. The construction of the house was financed
by the proceeds of the sale of LEO GERALD and his wife's Toyota Land Cruiser on 2
April 2003.
This reasoning is likewise flawed.
It bears stressing that the relationship of LEO GERALD and Atty. STA. ANA has
never been established in the instant case, thus, considering that at that time LEO
GERALD was not yet financially capable to undertake such investment, the source
thereof is indeed highly suspicious. It could only be then surmised that the source of
such investment was from [Leovigildo's] pocket, which again, is observed to be
incongruent with [Leovigildo's] disposable income as appearing in his SALNs.
Regarding the 450 square meter property in Muntinlupa City, per the Deed of
Absolute Sale dated 3 December 1997, LEO GERALD paid the vendor, TAN TIONG,
the full amount on even date. However, the supposed loan, which was said to have
financed the aforementioned acquisition, was undertaken by LEO GERALD with the
Spouses A VENA, his soon-to-be parents-in-law, on 18 December 1997, which was
notably 15 days after the full payment of the property. Evidently, the documents on
hand support the Ombudsman's findings that the proceeds of the alleged loan was
not used by LEO GERALD in the purchase of the 450 square meter property.
In the same vein, with respect to [Leovigildo's] claim that the money used in the
construction of the house x x x was the proceeds from the sale of LEO GERALD's
Toyota Land Cruiser, it should be stressed that the subject vehicle was acquired in
cash by LEO GERALD and his wife in the year 2000 when their registered total
annual net income per their Annual Income Tax Return was only ₱216,825.50. x x x
x x xx
Similarly, the subject properties acquired by [Leovigildo's] other children, namely:
LEOVIGILDO, Jr., MARIE ANTOINETTE and MARINA ROSE, were proved by
substantial quantum of evidence [to have been] purchased during the time when the
said children were likewise not financially capable of acquiring the same.
Recorded evidence disclosed that on 14 January 1999, LEOVIGILDO, Jr. purchased
a condominium unit at Richville Corporate Tower in Ayala, Alabang, for
₱5,676,861.64. Notably, however, on said date, LEOVIGILDO, Jr. was only 24 years
old and still a law student at that. [Leovigildo's] position that such ownership was just
held in trust by LEOVIGILDO, Jr. for his first cousin, LEONILO DE CASTRO
ATIENZA is hard to believe considering that, as admitted by [Leovigildo], no copy of
declaration of trust has been filed with the Office of the Clerk of Court of Makati City
as required by the Notarial Law. This verity casts doubt on the veracity of the
supposed trust agreement. Concomitantly, the allegation is self-serving and viewed
as a tool to hide the truth that the said condominium unit is indeed owned by
[Leovigildo]. Perforce, what is clear and convincing from the records is the fact that
LEOVIGILDO, Jr. is the registered owner of the subject condominium unit. Naturally,
as between the documents and the said declaration of trust x x x the former is
deserving of more credence.
Evidence further shows that in the year 1999, MARIE ANTOINETTE, together with
her husband, had a total income of ₱374,083.50, but made an investment of
₱700,000.00 in Lemar General Trading Corporation which was established in the
same year. Evidently, this circumstance is suspicious considering that they were not
financially capable then to invest such amount.
Also, on the same year (1999), MARINA ROSE, [Leovigildo's] daughter who just
passed the Dental Board Examinations, made a ₱l00,000.00 investment in Le Mar
Dental Clinic. Again, the source of said investment is dubious considering that
MARINA ROSE could not have earned that much as she was just in the practice of
her profession in barely less than a year.
Viewed in the light of the aforementioned disquisition, and as found by the
Ombudsman, [to] which [the CA] totally subscribe[s], all the foregoing acquisitions and
investments could only mean one thing, viz: the sources thereof came from
[Leovigildo] and are in fact owned by [him] but were registered under his children's
name so as to hide [their ownership]. Sadly, [Leovigildo] miserably failed to
satisfactorily establish the legitimate source of income which was used in acquiring
the subject properties. 78
one's sense of service rather than entitlement. In this light, the Court deems it
necessary to reiterate, as a final note, its pronouncement in Casimiro v. Rigor:82
The constitutionalization of public accountability shows the kind of standards of public
officers that are woven into the fabric of our legal system. To reiterate, public office is
a public trust, which embodies a set of standards such as responsibility, integrity and
efficiency. Unfortunately, reality may sometimes depart from these standards, but our
society has consciously embedded them in our laws so that they may be demanded
and enforced as legal principles, and the Court is mandated to apply these principles
to bridge actual reality to the norms envisioned for our public service. 83
WHEREFORE, premises considered, the petition for review
on certiorari is GRANTED IN PART. The Court of Appeals' Decision dated April 29,
2009 and Resolution dated June 23, 2010 in CA-G.R. SP No. 99752
are MODIFIED. The charge of Grave Misconduct against petitioner Leovigildo A. De
Castro is DISMISSED. However, his conviction for Dishonesty is AFFIRMED, and
accordingly, he is meted the corresponding penalty of DISMISSAL FROM THE
SERVICE and shall carry with it the cancellation of eligibility, forfeiture of retirement
benefits and perpetual disqualification from re-employment in the government service.

This Court, not being a trier of facts, accords respect to the findings of the SO ORDERED.
Ombudsman where, as here, they are supported by substantial evidence and have
been affirmed by the CA. Accordingly, these findings will no longer be
disturbed. 79Consequently, since Leovigildo failed to satisfactorily show that his
children had the capacity to acquire the Disputed Assets, the Ombudsman, and
thereafter, the CA, correctly arrived at the inescapable conclusion that the same were
acquired by Leovigildo himself.

When a public officer's accumulated wealth is manifestly disproportionate to his lawful

income and such public officer fails to properly account for or explain where such
wealth had been sourced, he becomes administratively liable for Dishonesty. 80In this
case, the disproportion between Leovigildo and Marina's declared income
(₱l0,841,412.28) and the acquisition cost of the Disputed Assets (₱23,717,226.89) is
too stark to be ignored.

Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil
Service (URACCS) then in force at the time the Complaint was filed, Dishonesty was
classified as a grave offense punishable by dismissal on the first instance, which
penalty inherently carries with it cancellation of civil service eligibility, forfeiture of
retirement benefits, and perpetual disqualification from re-employment in the
government service.81This penalty had been adopted under the Revised Rules on
Administrative Cases in the Civil Service now in force. Hence, the Court finds that the
penalty imposed upon Leovigildo is proper.

Public service demands the highest level of honesty and transparency from its officers
and employees. The Constitution requires that all public officers and employees be, at
all times, accountable to the people; serve with utmost responsibility, integrity, loyalty
and efficiency; act with patriotism and justice; and lead modest lives. Public office is a
public trust; it must be treated as a privilege rather than a right, and rest firmly upon
G.R. Nos. 147026-27 September 11, 2009
CAROLINA R. JAVIER, Petitioner,
vs.
THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
DEL CASTILLO, J.:
Before the Court is a petition for certiorari1 under Rule 65 of the Rules of Court filed
by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled
"People of the Philippines, Plaintiff versus Carolina R. Javier, Accused," seeking to
nullify respondent Sandiganbayan's: (1) Order2 dated November 14, 2000 in Criminal
Case No. 25867, which denied her Motion to Quash Information; (2)
Resolution3 dated January 17, 2001 in Criminal Case No. 25898, which denied her
Motion for Reconsideration and Motion to Quash Information; and (3) Order 4 dated
February 12, 2001, declaring that a motion for reconsideration in Criminal Case No.
25898 would be superfluous as the issues are fairly simple and straightforward.
The factual antecedents follow.
On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise known as the "Book
Publishing Industry Development Act", was enacted into law. Foremost in its policy is
the State's goal in promoting the continuing development of the book publishing
industry, through the active participation of the private sector, to ensure an adequate
supply of affordable, quality-produced books for the domestic and export market.
To achieve this purpose, the law provided for the creation of the National Book
Development Board (NBDB or the Governing Board, for brevity), which shall be under
the administration and supervision of the Office of the President. The Governing
Board shall be composed of eleven (11) members who shall be appointed by the
President of the Philippines, five (5) of whom shall come from the government, while
the remaining six (6) shall be chosen from the nominees of organizations of private
book publishers, printers, writers, book industry related activities, students and the
private education sector.
On February 26, 1996, petitioner was appointed to the Governing Board as a private
sector representative for a term of one (1) year.6 During that time, she was also the
President of the Book Suppliers Association of the Philippines (BSAP). She was on a
hold-over capacity in the following year. On September 14, 1998, she was again
appointed to the same position and for the same period of one (1) year. 7 Part of her
functions as a member of the Governing Board is to attend book fairs to establish
linkages with international book publishing bodies. On September 29, 1997, she was
issued by the Office of the President a travel authority to attend the Madrid
International Book Fair in Spain on October 8-12, 1997.8 Based on her itinerary of
travel,9 she was paid ₱139,199.0010 as her travelling expenses.
Unfortunately, petitioner was not able to attend the scheduled international book fair.
On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to
immediately return/refund her cash advance considering that her trip was
canceled.11 Petitioner, however, failed to do so. On July 6, 1998, she was issued a
Summary of Disallowances12 from which the balance for settlement amounted to
₱220,349.00. Despite said notice, no action was forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the
NBDB, filed with the Ombudsman a complaint against petitioner for malversation of
public funds and properties. She averred that despite the cancellation of the foreign
trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty
(60) days from date of arrival, or in this case from the date of cancellation of the trip,
in accordance with government accounting and auditing rules and regulations. Dr.
Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 6713 13 for
failure to file her Statement of Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation of Section 3(e)
of R.A. No. 3019,14 as amended, and recommended the filing of the corresponding
information.15 It, however, dismissed for insufficiency of evidence, the charge for
violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged with violation of
Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
That on or about October 8, 1997, or for sometime prior or subsequent thereto, in the
City of Quezon, Philippines and within the jurisdiction of this Honorable Court, the
aforenamed accused, a public officer, being then a member of the governing Board of
the National Book Development Board (NBDB), while in the performance of her
official and administrative functions, and acting with evident bad faith or gross
inexcusable negligence, did then and there willfully, unlawfully and criminally, without
any justifiable cause, and despite due demand by the Resident Auditor and the
Executive Director of NBDB, fail and refuse to return and/or liquidate her cash
advances intended for official travel abroad which did not materialize, in the total
amount of ₱139,199.00 as of September 23, 1999, as required under EO No. 248 and
Sec. 5 of COA Circular No. 97-002 thereby causing damage and undue injury to the
Government.
CONTRARY TO LAW.16
The case was docketed as Criminal Case No. 25867 and raffled to the First Division.
Meanwhile, the Commission on Audit charged petitioner with Malversation of Public
Funds, as defined and penalized under Article 217 of the Revised Penal Code, for not
liquidating the cash advance granted to her in connection with her supposed trip to
Spain. During the conduct of the preliminary investigation, petitioner was required to
submit her counter-affidavit but she failed to do so. The Ombudsman found probable
cause to indict petitioner for the crime charged and recommended the filing of the
corresponding information against her. 17
Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan,
which was docketed as Criminal Case No. 25898, and raffled to the Third Division,
the accusatory portion of which reads:
That on or about and during the period from October 8, 1997 to February 16, 1999, or
for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a high ranking officer,
being a member of the Governing Board of the National Book Development Board
and as such, is accountable for the public funds she received as cash advance in
connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188
in the amount of ₱139,199.00, which trip did not materialize, did then and there
willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and
convert to her own personal use and benefit the aforementioned amount of
₱139,199.00, Philippine currency, to the damage and prejudice of the government in
the aforesaid amount.
CONTRARY TO LAW.18
During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty.
Thereafter, petitioner delivered to the First Division the money subject of the criminal
cases, which amount was deposited in a special trust account during the pendency of
the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898
on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000,
petitioner filed with the same Division a Motion for Consolidation19of Criminal Case
No. 25898 with Criminal Case No. 25867, pending before the First Division. On July
6, 2000, the People filed an Urgent Ex-Parte Motion to Admit Amended
Information20 in Criminal Case No. 25898, which was granted. Accordingly, the
Amended Information dated June 28, 2000 reads as follows:
That on or about and during the period from October 8, 1997 to February 16, 1999, or
for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a high ranking officer,
being a member of the Governing Board of the National Book Development
Board equated to Board Member II with a salary grade 28 and as such, is
accountable for the public funds she received as case advance in connection with her
trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in the amount of
₱139,199.00, which trip did not materialize, did then and there willfully, unlawfully and
feloniously take, malverse, misappropriate, embezzle and convert to her own
personal use and benefit the aforementioned amount of ₱139,199.00, Philippine
currency, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.21
In its Resolution dated October 5, 2000, the Third Division ordered the consolidation
of Criminal Case No. 25898 with Criminal Case No. 25867. 22
On October 10, 2000, petitioner filed a Motion to Quash Information,23 averring that
the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the
information did not allege that she is a public official who is classified as Grade "27" or
higher. Neither did the information charge her as a co-principal, accomplice or
accessory to a public officer committing an offense under the Sandiganbayan's
jurisdiction. She also averred that she is not a public officer or employee and that she
belongs to the Governing Board only as a private sector representative under R.A.
No. 8047, hence, she may not be charged under R.A. No. 3019 before the
Sandiganbayan or under any statute which covers public officials. Moreover, she
claimed that she does not perform public functions and is without any administrative
or political power to speak of – that she is serving the private book publishing industry
by advancing their interest as participant in the government's book development
policy.
In an Order24 dated November 14, 2000, the First Division25 denied the motion to
quash with the following disquisition:
The fact that the accused does not receive any compensation in terms of salaries and
allowances, if that indeed be the case, is not the sole qualification for being in the
government service or a public official. The National Book Development Board is a
statutory government agency and the persons who participated therein even if they
are from the private sector, are public officers to the extent that they are performing
their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that monies were
advanced to the accused in her capacity as Director of the National Book
Development Board for purposes of official travel. While indeed under ordinary
circumstances a member of the board remains a private individual, still when that
individual is performing her functions as a member of the board or when that person
receives benefits or when the person is supposed to travel abroad and is given
government money to effect that travel, to that extent the private sector representative
is a public official performing public functions; if only for that reason, and not even
considering situation of her being in possession of public funds even as a private
individual for which she would also covered by provisions of the Revised Penal Code,
she is properly charged before this Court.
On November 15, 2000, the First Division accepted the consolidation of the criminal
cases against petitioner and scheduled her arraignment on November 17, 2000, for
Criminal Case No. 25898. On said date, petitioner manifested that she is not prepared
to accept the propriety of the accusation since it refers to the same subject matter as
that covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time
to file a motion to quash. On November 22, 2000, petitioner filed a Motion to Quash
the Information26 in Criminal Case No. 25898, by invoking her right against double
jeopardy. However, her motion was denied in open court. She then filed a motion for
reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution 27 denying petitioner’s
motion with the following disquisition:
The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as
amended so provides, thus:
Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original jurisdiction
in all cases involving:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations;
xxxx
The offense is office-related because the money for her travel abroad was given to
her because of her Directorship in the National Book Development Board.
Furthermore, there are also allegations to hold the accused liable under Article 222 of
the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions. – The provisions of this
chapter shall apply to private individuals who, in any capacity whatever, have charge
of any insular, provincial or municipal funds, revenues, or property and to any
administrator or depository of funds or property attached , seized or deposited by
public authority, even if such property belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the
ground of litis pendencia is denied since in this instance, these two Informations
speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal
Code, neither of which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the Sandiganbayan has
committed grave abuse of discretion amounting to lack of jurisdiction for not quashing
the two informations charging her with violation of the Anti-Graft Law and the Revised
Penal Code on malversation of public funds. She advanced the following arguments
in support of her petition, to wit: first, she is not a public officer, and second, she was
being charged under two (2) informations, which is in violation of her right against
double jeopardy.
A motion to quash an Information is the mode by which an accused assails the
validity of a criminal complaint or Information filed against him for insufficiency on its
face in point of law, or for defects which are apparent in the face of the Information. 28
Well-established is the rule that when a motion to quash in a criminal case is denied,
the remedy is not a petition for certiorari, but for petitioners to go to trial, without
prejudice to reiterating the special defenses invoked in their motion to quash.
Remedial measures as regards interlocutory orders, such as a motion to quash, are
frowned upon and often dismissed. The evident reason for this rule is to avoid
multiplicity of appeals in a single action.29
The above general rule, however admits of several exceptions, one of which is when
the court, in denying the motion to dismiss or motion to quash, acts without or in
excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition
lies. The reason is that it would be unfair to require the defendant or accused to
undergo the ordeal and expense of a trial if the court has no jurisdiction over the
subject matter or offense, or is not the court of proper venue, or if the denial of the
motion to dismiss or motion to quash is made with grave abuse of discretion or a
whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of
appeal cannot be plain and adequate.30
To substantiate her claim, petitioner maintained that she is not a public officer and
only a private sector representative, stressing that her only function among the eleven
(11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is
to obtain priority status for the book publishing industry. At the time of her
appointment to the NDBD Board, she was the President of the BSAP, a book
publishers association. As such, she could not be held liable for the crimes imputed
against her, and in turn, she is outside the jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and support the Philippine
book publishing industry. It is a statutory government agency created by R.A. No.
8047, which was enacted into law to ensure the full development of the book
publishing industry as well as for the creation of organization structures to implement
the said policy. To achieve this end, the Governing Board of the NBDB was created to
supervise the implementation. The Governing Board was vested with powers and
functions, to wit:
a) assume responsibility for carrying out and implementing the policies,
purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and
guidelines for undertaking activities relative to promoting book development,
production and distribution as well as an incentive scheme for individual
authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that editors,
compilers and especially authors are paid justly and promptly royalties due
them for reproduction of their works in any form and number and for
whatever purpose;
d) conduct or contract research on the book publishing industry including
monitoring, compiling and providing data and information of book production;
e) provide a forum for interaction among private publishers, and, for the
purpose, establish and maintain liaison will all the segments of the book
publishing industry;
f) ask the appropriate government authority to ensure effective
implementation of the National Book Development Plan;
 g) promulgate rules and regulations for the implementation of this Act in
consultation with other agencies concerned, except for Section 9 hereof on
incentives for book development, which shall be the concern of appropriate
agencies involved;
h) approve, with the concurrence of the Department of Budget and
Management (DBM), the annual and supplemental budgets submitted to it
by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and personal property
for the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper administration
of its affairs, the conduct of its operations or the accomplishment of its
purposes and objectives;
k) receive donations, grants, legacies, devices and similar acquisitions which
shall form a trust fund of the Board to accomplish its development plans on
book publishing;
l) import books or raw materials used in book publishing which are exempt
from all taxes, customs duties and other charges in behalf of persons and
enterprises engaged in book publishing and its related activities duly
registered with the board;
m) promulgate rules and regulations governing the matter in which the
general affairs of the Board are to be exercised and amend, repeal, and
modify such rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the positions
of the Executive Officer and Deputy Executive Officer of the Board;
o) adopt rules and procedures and fix the time and place for holding
meetings: Provided, That at least one (1) regular meeting shall be held
monthly;
p) conduct studies, seminars, workshops, lectures, conferences, exhibits,
and other related activities on book development such as indigenous
authorship, intellectual property rights, use of alternative materials for
printing, distribution and others; and
q) exercise such other powers and perform such other duties as may be
required by the law.31
A perusal of the above powers and functions leads us to conclude that they partake of
the nature of public functions. A public office is the right, authority and duty, created
and conferred by law, by which, for a given period, either fixed by law or enduring at
the pleasure of the creating power, an individual is invested with some portion of
the sovereign functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public officer.32
Notwithstanding that petitioner came from the private sector to sit as a member of the
NBDB, the law invested her with some portion of the sovereign functions of the
government, so that the purpose of the government is achieved. In this case, the
government aimed to enhance the book publishing industry as it has a significant role
in the national development. Hence, the fact that she was appointed from the public
sector and not from the other branches or agencies of the government does not take
her position outside the meaning of a public office. She was appointed to the
Governing Board in order to see to it that the purposes for which the law was enacted
are achieved. The Governing Board acts collectively and carries out its mandate as
one body. The purpose of the law for appointing members from the private sector is to
ensure that they are also properly represented in the implementation of government
objectives to cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer pursuant to the
Anti-Graft Law, which provides that a public officer includes elective and appointive
officials and employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even nominal, from the
government.33
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or
appointed to a public office. Petitioner was appointed by the President to the
Governing Board of the NDBD. Though her term is only for a year that does not make
her private person exercising a public function. The fact that she is not receiving a
monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members
of the Governing Board shall receive per diem and such allowances as may be
authorized for every meeting actually attended and subject to pertinent laws, rules
and regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and
whether the compensation one receives from the government is only nominal, is
immaterial because the person so elected or appointed is still considered a public
officer.
On the other hand, the Revised Penal Code defines a public officer as any person
who, by direct provision of the law, popular election, popular election or appointment
by competent authority, shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said Government or in any of
its branches public duties as an employee, agent, or subordinate official, of any rank
or classes, shall be deemed to be a public officer.34
Where, as in this case, petitioner performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a public officer who takes part in the
performance of public functions in the government whether as an employee, agent,
subordinate official, of any rank or classes. In fact, during her tenure, petitioner took
part in the drafting and promulgation of several rules and regulations implementing
R.A. No. 8047. She was supposed to represent the country in the canceled book fair
in Spain.
In fine, We hold that petitioner is a public officer. The next question for the Court to
resolve is whether, as a public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Presently,35 the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction
in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a permanent, acting
or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade "27" and higher, of the
Compensation and Position Classification Act of 989 (Republic Act No.
6758), specifically including:
xxxx
(2) Members of Congress and officials thereof classified as Grade "Grade
'27'" and up under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairmen and members of Constitutional Commission, without prejudice
to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade "Grade '27'" and
higher under the Compensation and Position Classification Act of 1989.
xxxx
Notably, the Director of Organization, Position Classification and Compensation
Bureau, of the Department of Budget and management provided the following
information regarding the compensation and position classification and/or rank
equivalence of the member of the Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is
composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and
nine (9) Members, four (4) of whom are ex-officio and the remaining five (5) members
represent the private sector. The said five members of the Board do not receive any
salary and as such their position are not classified and are not assigned any salary
grade.
For purposes however of determining the rank equivalence of said positions,
notwithstanding that they do not have any salary grade assignment, the same may be
equated to Board Member II, SG-28.36
Thus, based on the Amended Information in Criminal Case No. 25898, petitioner
belongs to the employees classified as SG-28, included in the phrase "all other
national and local officials classified as ‘Grade 27' and higher under the
Compensation and Position Classification Act of 1989."
Anent the issue of double jeopardy, We can not likewise give in to the contentions
advanced by petitioner. She argued that her right against double jeopardy was
violated when the Sandiganbayan denied her motion to quash the two informations
filed against her.1avvphi1
We believe otherwise. Records show that the Informations in Criminal Case Nos.
25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and
RPC, respectively. It is elementary that for double jeopardy to attach, the case against
the accused must have been dismissed or otherwise terminated without his express
consent by a court of competent jurisdiction, upon valid information sufficient in form
and substance and the accused pleaded to the charge. 37 In the instant case,
petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She
was not yet arraigned in the criminal case for malversation of public funds because
she had filed a motion to quash the latter information. Double jeopardy could not,
therefore, attach considering that the two cases remain pending before the
Sandiganbayan and that herein petitioner had pleaded to only one in the criminal
cases against her.
It is well settled that for a claim of double jeopardy to prosper, the following requisites
must concur: (1) there is a complaint or information or other formal charge sufficient in
form and substance to sustain a conviction; (2) the same is filed before a court of
competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4)
the accused is convicted or acquitted or the case is otherwise dismissed or
terminated without his express consent.38The third and fourth requisites are not
present in the case at bar.
In view of the foregoing, We hold that the present petition does not fall under the
exceptions wherein the remedy of certiorari may be resorted to after the denial of
one's motion to quash the information. And even assuming that petitioner may avail of
such remedy, We still hold that the Sandiganbayan did not commit grave abuse of
discretion amounting to lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of
the Sandiganbayan are AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE
B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON.
GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of the Bureau
of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as
Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and
enforcing Republic Act (RA) 93352(Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of
the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law
intends to encourage BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through the creation of a
Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board
(Board).3 It covers all officials and employees of the BIR and the BOC with at least six
months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their
revenue targets for the year, as determined by the Development Budget and
Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and
allocated to the BIR and the BOC in proportion to their contribution in the excess
collection of the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or his/her
Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy
Commissioners, two representatives from the rank-and-file employees and a
representative from the officials nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from
the service officials and employees whose revenue collection falls short of the target;
(3) terminate personnel in accordance with the criteria adopted by the Board; (4)
prescribe a system for performance evaluation; (5) perform other functions, including
the issuance of rules and regulations and (6) submit an annual report to Congress. 7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were
tasked to promulgate and issue the implementing rules and regulations of RA
9335,8 to be approved by a Joint Congressional Oversight Committee created for
such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by
establishing a system of rewards and incentives, the law "transform[s] the officials
and employees of the BIR and the BOC into mercenaries and bounty hunters" as they
will do their best only in consideration of such rewards. Thus, the system of rewards
and incentives invites corruption and undermines the constitutionally mandated duty
of these officials and employees to serve the people with utmost responsibility,
integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives
only to officials and employees of the BIR and the BOC violates the constitutional
guarantee of equal protection. There is no valid basis for classification or distinction
as to why such a system should not apply to officials and employees of all other
government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue
targets to the President as it lacks a sufficient standard on that matter. While Section
7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from
the service if their revenue collections fall short of the target by at least 7.5%, the law
does not, however, fix the revenue targets to be achieved. Instead, the fixing of
revenue targets has been delegated to the President without sufficient standards. It
will therefore be easy for the President to fix an unrealistic and unattainable target in
order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the
ground that it violates the doctrine of separation of powers. While the legislative
function is deemed accomplished and completed upon the enactment and approval of
the law, the creation of the congressional oversight committee permits legislative
participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question
the petition for being premature as there is no actual case or controversy yet.
Petitioners have not asserted any right or claim that will necessitate the exercise of
this Court’s jurisdiction. Nevertheless, respondents acknowledge that public policy
requires the resolution of the constitutional issues involved in this case. They assert
that the allegation that the reward system will breed mercenaries is mere speculation
and does not suffice to invalidate the law. Seen in conjunction with the declared
objective of RA 9335, the law validly classifies the BIR and the BOC because the
functions they perform are distinct from those of the other government agencies and
instrumentalities. Moreover, the law provides a sufficient standard that will guide the
executive in the implementation of its provisions. Lastly, the creation of the
congressional oversight committee under the law enhances, rather than violates,
separation of powers. It ensures the fulfillment of the legislative policy and serves as a
check to any over-accumulation of power on the part of the executive and the
implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court
finds that petitioners have failed to overcome the presumption of constitutionality in
favor of RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial adjudication.10 A closely related
requirement is ripeness, that is, the question must be ripe for adjudication. And a
constitutional question is ripe for adjudication when the governmental act being
challenged has a direct adverse effect on the individual challenging it. 11 Thus, to be
ripe for judicial adjudication, the petitioner must show a personal stake in the outcome
of the case or an injury to himself that can be redressed by a favorable decision of the
Court.12
In this case, aside from the general claim that the dispute has ripened into a judicial
controversy by the mere enactment of the law even without any further overt
act,13 petitioners fail either to assert any specific and concrete legal claim or to
demonstrate any direct adverse effect of the law on them. They are unable to show a
personal stake in the outcome of this case or an injury to themselves. On this
account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues
raised by petitioners. The grave nature of their allegations tends to cast a cloud on the
presumption of constitutionality in favor of the law. And where an action of the
legislative branch is alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. 14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism, and justice, and lead
modest lives.
Public office is a public trust. It must be discharged by its holder not for his own
personal gain but for the benefit of the public for whom he holds it in trust. By
demanding accountability and service with responsibility, integrity, loyalty, efficiency,
patriotism and justice, all government officials and employees have the duty to be
responsive to the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties.
This presumption necessarily obtains in favor of BIR and BOC officials and
employees. RA 9335 operates on the basis thereof and reinforces it by providing a
system of rewards and sanctions for the purpose of encouraging the officials and
employees of the BIR and the BOC to exceed their revenue targets and optimize their
revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot
be overturned by mere conjecture or denied in advance (as petitioners would have
the Court do) specially in this case where it is an underlying principle to advance a
declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials
and employees into "bounty hunters and mercenaries" is not only without any factual
and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To
justify its nullification, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and equivocal one.16 To invalidate RA 9335 based on
petitioners’ baseless supposition is an affront to the wisdom not only of the legislature
that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be
rewarded for exemplary and exceptional performance. A system of incentives for
exceeding the set expectations of a public office is not anathema to the concept of
public accountability. In fact, it recognizes and reinforces dedication to duty, industry,
efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards
to officers of the customs as well as other parties an amount not exceeding one-half
of the net proceeds of forfeitures in violation of the laws against smuggling.
Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:
The offer of a portion of such penalties to the collectors is to stimulate and
reward their zeal and industry in detecting fraudulent attempts to evade
payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a
reward when, as a consequence of their zeal in the enforcement of tax and customs
laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards
to ensure that the reward will not be claimed if it will be either the fruit of "bounty
hunting or mercenary activity" or the product of the irregular performance of official
duties. One of these precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the
BOC. – The officials, examiners, and employees of the [BIR] and the [BOC]
who violate this Act or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise extraordinary diligence in the
performance of their duties shall be held liable for any loss or injury suffered
by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise
extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same
conditions and among persons similarly situated; it is equality among equals, not
similarity of treatment of persons who are classified based on substantial differences
in relation to the object to be accomplished.19 When things or persons are different in
fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde
Rope Workers’ Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the [S]tate. It is not, therefore,
a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different
in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of knowledge
or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it
goes without saying that the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of a valid classification
is that it be reasonable, which means that the classification should be
based on substantial distinctions which make for real differences, that
it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is recognized as
enjoying a wide range of discretion. It is not necessary that the classification
be based on scientific or marked differences of things or in their relation.
Neither is it necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases properly rest on
narrow distinctions, for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation is
addressed to evils as they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a classification
that has a reasonable foundation or rational basis and not arbitrary. 22 With respect to
RA 9335, its expressed public policy is the optimization of the revenue-generation
capability and collection of the BIR and the BOC.23 Since the subject of the law is the
revenue- generation capability and collection of the BIR and the BOC, the incentives
and/or sanctions provided in the law should logically pertain to the said agencies.
Moreover, the law concerns only the BIR and the BOC because they have the
common distinct primary function of generating revenues for the national government
through the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision and
control of the Commissioner of Internal Revenue, who shall be appointed by
the President upon the recommendation of the Secretary [of the DOF], shall
have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all
revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its
functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(4) Exercise supervision and control over its constituent and subordinate
units; and
(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be
headed and subject to the management and control of the Commissioner of
Customs, who shall be appointed by the President upon the
recommendation of the Secretary[of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges
and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
 (4) Prevent and suppress smuggling, pilferage and all other economic frauds
within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance
of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports
under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law. 25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally perform the
special function of being the instrumentalities through which the State exercises one
of its great inherent functions – taxation. Indubitably, such substantial distinction is
germane and intimately related to the purpose of the law. Hence, the classification
and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the
demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete when it sets
forth therein the policy to be executed, carried out or implemented by the
delegate.26 It lays down a sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegate’s authority and
prevent the delegation from running riot.27 To be sufficient, the standard must specify
the limits of the delegate’s authority, announce the legislative policy and identify the
conditions under which it is to be implemented.28
RA 9335 adequately states the policy and standards to guide the President in fixing
revenue targets and the implementing agencies in carrying out the provisions of the
law. Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the
revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system
of rewards and sanctions through the creation of a Rewards and Incentives
Fund and a Revenue Performance Evaluation Board in the above agencies
for the purpose of encouraging their officials and employees to exceed their
revenue targets.
Section 4 "canalized within banks that keep it from overflowing" 29 the delegated power
to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund,
hereinafter referred to as the Fund, is hereby created, to be sourced from the
collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and
Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Excess Percent (%) of the Excess Collection to
the Revenue Targets the Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the
excess
The Fund shall be deemed automatically appropriated the year immediately
following the year when the revenue collection target was exceeded and
shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection
expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by
the President to Congress. The BIR and the BOC shall submit to the
DBCC the distribution of the agencies’ revenue targets as allocated among
its revenue districts in the case of the BIR, and the collection districts in the
case of the BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC
and stated in the BESF submitted by the President to Congress.30 Thus, the
determination of revenue targets does not rest solely on the President as it also
undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies
the conditions under which officials and employees whose revenue collection falls
short of the target by at least 7.5% may be removed from the service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency shall
have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials
and employees whose revenue collection falls short of the target by at
least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules
 and regulations promulgated under this Act, subject to civil service laws,
rules and regulations and compliance with substantive and procedural
due process: Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not
exceeding two years in operation, as has no historical record of
collection performance that can be used as basis for evaluation;
and
2. Where the revenue or customs official or employee is a recent
transferee in the middle of the period under consideration unless
the transfer was due to nonperformance of revenue targets or
potential nonperformance of revenue targets: Provided, however,
That when the district or area of responsibility covered by revenue
or customs officials or employees has suffered from economic
difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination
shall be considered only after careful and proper review by the
Board.
(c) To terminate personnel in accordance with the criteria adopted in the
preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall
be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of
Conduct and Ethical Standards of Public Officers and Employees and
the Anti-Graft and Corrupt Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of officials and employees
of the BIR and the BOC. The guarantee of security of tenure only means that an
employee cannot be dismissed from the service for causes other than those provided
by law and only after due process is accorded the employee.31 In the case of RA
9335, it lays down a reasonable yardstick for removal (when the revenue collection
falls short of the target by at least 7.5%) with due consideration of all relevant factors
affecting the level of collection. This standard is analogous to inefficiency and
incompetence in the performance of official duties, a ground for disciplinary action
under civil service laws.32 The action for removal is also subject to civil service laws,
rules and regulations and compliance with substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public
interest," "justice and equity," "public convenience and welfare" and "simplicity,
economy and welfare."33 In this case, the declared policy of optimization of the
revenue-generation capability and collection of the BIR and the BOC is infused with
public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. – There is hereby
created a Joint Congressional Oversight Committee composed of seven
Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by the
Senate President, with at least two senators representing the minority. The
Members from the House of Representatives shall be appointed by the
Speaker with at least two members representing the minority. After the
Oversight Committee will have approved the implementing rules and
regulations (IRR) it shall thereafter become functus officio and therefore
cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the
purpose of approving the implementing rules and regulations (IRR) formulated by the
DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR.
From then on, it became functus officio and ceased to exist. Hence, the issue of its
alleged encroachment on the executive function of implementing and enforcing the
law may be considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court to confront the
issue of the constitutionality of the Joint Congressional Oversight Committee created
under RA 9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of
congressional oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and influence
over the implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress: (a) to
monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate
executive waste and dishonesty, (d) to prevent executive usurpation of
legislative authority, and (d) to assess executive conformity with the
congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative
power itself and integral to the checks and balances inherent in a democratic
system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with increased
frequency to check the perceived "exponential accumulation of power" by
the executive branch. By the beginning of the 20th century, Congress has
delegated an enormous amount of legislative authority to the executive
branch and the administrative agencies. Congress, thus, uses its oversight
power to make sure that the administrative agencies perform their functions
within the authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight
powers may be divided into three categories,
namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of
attention to administrative operations. Its primary purpose is to
determine economy and efficiency of the operation of government
activities. In the exercise of legislative scrutiny, Congress may
request information and report from the other branches of
government. It can give recommendations or pass resolutions for
consideration of the agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive process of
looking at the facts that are readily available, congressional
investigation involves a more intense digging of facts. The power of
Congress to conduct investigation is recognized by the 1987
Constitution under section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its
oversight power is thru legislative supervision. "Supervision" connotes a
continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area.
While both congressional scrutiny and investigation involve inquiry into past
executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the
exercise of delegated law-making authority, and permits Congress to retain
part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto
power. It typically utilizes veto provisions when granting the President or an
executive agency the power to promulgate regulations with the force of law.
These provisions require the President or an agency to present the proposed
regulations to Congress, which retains a "right" to approve or disapprove any
regulation before it takes effect. Such legislative veto provisions usually
provide that a proposed regulation will become a law after the expiration of a
certain period of time, only if Congress does not affirmatively disapprove of
the regulation in the meantime. Less frequently, the statute provides that a
proposed regulation will become law if Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain the
balance of power between the legislative and the executive branches of
government as it offers lawmakers a way to delegate vast power to the
executive branch or to independent agencies while retaining the option to
cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement
promotes democratic accountability as it provides legislative check on the
activities of unelected administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy
is too deeply embedded in our law and practice. It suffices to say
that the complexities of modern government have often led
Congress-whether by actual or perceived necessity- to legislate by
declaring broad policy goals and general statutory standards,
leaving the choice of policy options to the discretion of an executive
officer. Congress articulates legislative aims, but leaves their
implementation to the judgment of parties who may or may not
have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of
our constitutional scheme could be effected: Congress proposes,
the Executive disposes. One safeguard, of course, is the legislative
power to enact new legislation or to change existing law. But
without some means of overseeing post enactment activities of the
executive branch, Congress would be unable to determine whether
its policies have been implemented in accordance with legislative
intent and thus whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge that any
post-enactment measures undertaken by the legislative branch should
be limited to scrutiny and investigation; any measure beyond that
would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an
impermissible evasion of the President’s veto authority and intrusion into the
powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it
prevents the executive branch and independent agencies from accumulating
too much power. They submit that reporting requirements and congressional
committee investigations allow Congress to scrutinize only the exercise of
delegated law-making authority. They do not allow Congress to review
executive proposals before they take effect and they do not afford the
opportunity for ongoing and binding expressions of congressional intent. In
contrast, legislative veto permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those enacted by the
executive branch pursuant to a delegation of authority by Congress. They
further argue that legislative veto "is a necessary response by Congress to
the accretion of policy control by forces outside its chambers." In an era of
 delegated authority, they point out that legislative veto "is the most efficient
means Congress has yet devised to retain control over the evolution and
implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme
Court resolved the validity of legislative veto provisions. The case arose
from the order of the immigration judge suspending the deportation of
Chadha pursuant to § 244(c)(1) of the Immigration and Nationality Act. The
United States House of Representatives passed a resolution vetoing the
suspension pursuant to § 244(c)(2) authorizing either House of Congress, by
resolution, to invalidate the decision of the executive branch to allow a
particular deportable alien to remain in the United States. The immigration
judge reopened the deportation proceedings to implement the House order
and the alien was ordered deported. The Board of Immigration Appeals
dismissed the alien’s appeal, holding that it had no power to declare
unconstitutional an act of Congress. The United States Court of Appeals for
Ninth Circuit held that the House was without constitutional authority to order
the alien’s deportation and that § 244(c)(2) violated the constitutional
doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2)
unconstitutional. But the Court shied away from the issue of separation
of powers and instead held that the provision violates the presentment
clause and bicameralism. It held that the one-house veto was essentially
legislative in purpose and effect. As such, it is subject to the procedures set
out in Article I of the Constitution requiring the passage by a majority of both
Houses and presentment to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum
decision, two lower court decisions invalidating the legislative veto provisions
in the Natural Gas Policy Act of 1978 and the Federal Trade Commission
Improvement Act of 1980. Following this precedence, lower courts
invalidated statutes containing legislative veto provisions although some of
these provisions required the approval of both Houses of Congress and thus
met the bicameralism requirement of Article I. Indeed, some of these veto
provisions were not even exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional
oversight and considering the nature and powers of a constitutional body like the
Commission on Elections, the Court struck down the provision in RA 9189 (The
Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee.
The committee was tasked not only to monitor and evaluate the implementation of the
said law but also to review, revise, amend and approve the IRR promulgated by the
Commission on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per
se, meaning, it neither necessarily constitutes an encroachment on the executive
power to implement laws nor undermines the constitutional separation of powers.
Rather, it is integral to the checks and balances inherent in a democratic system of
government. It may in fact even enhance the separation of powers as it prevents the
over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the
legislative sphere," the Constitution imposes two basic and related constraints on
Congress.37 It may not vest itself, any of its committees or its members with either
executive or judicial power.38 And, when it exercises its legislative power, it must
follow the "single, finely wrought and exhaustively considered, procedures" specified
under the Constitution,39 including the procedure for enactment of laws and
presentment.
Thus, any post-enactment congressional measure such as this should be limited to
scrutiny and investigation. In particular, congressional oversight must be confined to
the following:
(1) scrutiny based primarily on Congress’ power of appropriation and the
budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any
matter pertaining to their departments and its power of confirmation 40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to
the power of Congress to conduct inquiries in aid of legislation. 42
Any action or step beyond that will undermine the separation of powers guaranteed
by the Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative
agency to present the proposed implementing rules and regulations of a law to
Congress which, by itself or through a committee formed by it, retains a "right" or
"power" to approve or disapprove such regulations before they take effect. As such, a
legislative veto in the form of a congressional oversight committee is in the form of an
inward-turning delegation designed to attach a congressional leash (other than
through scrutiny and investigation) to an agency to which Congress has by law initially
delegated broad powers.43It radically changes the design or structure of the
Constitution’s diagram of power as it entrusts to Congress a direct role in enforcing,
applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy within
the broad horizons of its legislative competence.45 It can itself formulate the details or
it can assign to the executive branch the responsibility for making necessary
managerial decisions in conformity with those standards.46 In the latter case, the law
must be complete in all its essential terms and conditions when it leaves the hands of
the legislature.47 Thus, what is left for the executive branch or the concerned
administrative agency when it formulates rules and regulations implementing the law
is to fill up details (supplementary rule-making) or ascertain facts necessary to bring
the law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement and
interpret the law which they are entrusted to enforce have the force of law and are
entitled to respect.49 Such rules and regulations partake of the nature of a
statute50and are just as binding as if they have been written in the statute itself. As
such, they have the force and effect of law and enjoy the presumption of
constitutionality and legality until they are set aside with finality in an appropriate case
by a competent court.51 Congress, in the guise of assuming the role of an overseer,
may not pass upon their legality by subjecting them to its stamp of approval without
disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of
whether or not they conformed with the provisions of RA 9335, Congress arrogated
judicial power unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to
approval by Congress as a condition for their effectivity violates the cardinal
constitutional principles of bicameralism and the rule on presentment. 52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws) 53 is
vested in Congress which consists of two chambers, the Senate and the House of
Representatives. A valid exercise of legislative power requires the act of both
chambers. Corrollarily, it can be exercised neither solely by one of the two chambers
nor by a committee of either or both chambers. Thus, assuming the validity of a
legislative veto, both a single-chamber legislative veto and a congressional committee
legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the same,
he shall sign it, otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the objections
at large in its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House
by which it shall likewise be reconsidered, and if approved by two-thirds of all
the Members of that House, it shall become a law. In all such cases, the
votes of each House shall be determined by yeas or nays, and the names of
the members voting for or against shall be entered in its Journal. The
President shall communicate his veto of any bill to the House where it
originated within thirty days after the date of receipt thereof; otherwise, it
shall become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or
veto. In the absence of presentment to the President, no bill passed by Congress can
become a law. In this sense, law-making under the Constitution is a joint act of the
Legislature and of the Executive. Assuming that legislative veto is a valid legislative
act with the force of law, it cannot take effect without such presentment even if
approved by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved
by both Houses of Congress.54Second, it must be presented to and approved by the
President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas,
S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the
Senate except for some measures that must originate only in the former
chamber.
The first reading involves only a reading of the number and title of the
measure and its referral by the Senate President or the Speaker to the
proper committee for study.
The bill may be "killed" in the committee or it may be recommended for
approval, with or without amendments, sometimes after public hearings are
first held thereon. If there are other bills of the same nature or purpose, they
may all be consolidated into one bill under common authorship or as a
committee bill.
Once reported out, the bill shall be calendared for second reading. It is at
this stage that the bill is read in its entirety, scrutinized, debated upon and
amended when desired. The second reading is the most important stage in
the passage of a bill.
The bill as approved on second reading is printed in its final form and copies
thereof are distributed at least three days before the third reading. On the
third reading, the members merely register their votes and explain them if
they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it
will also undergo the three readings. If there are differences between the
versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise measure that
if ratified by the Senate and the House of Representatives will then be
submitted to the President for his consideration.
The bill is enrolled when printed as finally approved by the Congress,
thereafter authenticated with the signatures of the Senate President, the
Speaker, and the Secretaries of their respective chambers…59
The President’s role in law-making.
 The final step is submission to the President for approval. Once approved, it
takes effect as law after the required publication.60
Where Congress delegates the formulation of rules to implement the law it has
enacted pursuant to sufficient standards established in the said law, the law must be
complete in all its essential terms and conditions when it leaves the hands of the
legislature. And it may be deemed to have left the hands of the legislature when it
becomes effective because it is only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the language of the statute. Subject
to the indispensable requisite of publication under the due process clause, 61 the
determination as to when a law takes effect is wholly the prerogative of
Congress.62 As such, it is only upon its effectivity that a law may be executed and the
executive branch acquires the duties and powers to execute the said law. Before that
point, the role of the executive branch, particularly of the President, is limited to
approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement
of the law violates the principle of separation of powers and is thus unconstitutional.
Under this principle, a provision that requires Congress or its members to approve the
implementing rules of a law after it has already taken effect shall be unconstitutional,
as is a provision that allows Congress or its members to overturn any directive or
ruling made by the members of the executive branch charged with the implementation
of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as
unconstitutional. While there may be similar provisions of other laws that may be
invalidated for failure to pass this standard, the Court refrains from invalidating them
wholesale but will do so at the proper time when an appropriate case assailing those
provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of
Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law
unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. – If any provision of this Act is declared invalid
by a competent court, the remainder of this Act or any provision not affected
by such declaration of invalidity shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following
rules:
The general rule is that where part of a statute is void as repugnant to the
Constitution, while another part is valid, the valid portion, if separable from
the invalid, may stand and be enforced. The presence of a separability
clause in a statute creates the presumption that the legislature intended
separability, rather than complete nullity of the statute. To justify this result,
the valid portion must be so far independent of the invalid portion that it is
fair to presume that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other. Enough must
remain to make a complete, intelligible and valid statute, which carries out
the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so
mutually dependent and connected, as conditions, considerations,
inducements, or compensations for each other, as to warrant a belief that the
legislature intended them as a whole, the nullity of one part will vitiate the
rest. In making the parts of the statute dependent, conditional, or connected
with one another, the legislature intended the statute to be carried out as a
whole and would not have enacted it if one part is void, in which case if
some parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate
and detach any invalid provision from the other provisions so that the latter may
continue in force and effect. The valid portions can stand independently of the invalid
section. Without Section 12, the remaining provisions still constitute a complete,
intelligible and valid law which carries out the legislative intent to optimize the
revenue-generation capability and collection of the BIR and the BOC by providing for
a system of rewards and sanctions through the Rewards and Incentives Fund and a
Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their
purpose is to enforce or implement existing law pursuant to a valid delegation. The
IRR of RA 9335 were published on May 30, 2006 in two newspapers of general
circulation66 and became effective 15 days thereafter.67 Until and unless the contrary
is shown, the IRR are presumed valid and effective even without the approval of the
Joint Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335
creating a Joint Congressional Oversight Committee to approve the implementing
rules and regulations of the law is declared UNCONSTITUTIONAL and
therefore NULL and VOID. The constitutionality of the remaining provisions of RA
9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions
remain in force and effect.
SO ORDERED.
G.R. No. 125296 July 20, 2006
ISMAEL G. KHAN, JR. and WENCESLAO L. MALABANAN, petitioners,
vs.
OFFICE OF THE OMBUDSMAN, DEPUTY OMBUDSMAN (VISAYAS), ROSAURO
F. TORRALBA* and CELESTINO BANDALA**, respondents.
DECISION
CORONA, J.:
This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of
whether public respondents Deputy Ombudsman (Visayas) and the Ombudsman
have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan,
former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA)
30191(the Anti-Graft and Corrupt Practices Act).
In February 1989, private respondents Rosauro Torralba and Celestino Bandala
charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA
3019. In their complaint, private respondents accused petitioners of using their
positions in PAL to secure a contract for Synergy Services Corporation, a corporation
engaged in hauling and janitorial services in which they were shareholders.
Petitioners filed an omnibus motion to dismiss the complaint on the following grounds:
(1) the Ombudsman had no jurisdiction over them since PAL was a private entity and
(2) they were not public officers, hence, outside the application of RA 3019.
In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners'
omnibus motion to dismiss.
On petitioners' first argument, he ruled that, although PAL was originally organized as
a private corporation, its controlling stock was later acquired by the government
through the Government Service Insurance System (GSIS).4Therefore, it became a
government-owned or controlled corporation (GOCC) as enunciated in Quimpo v.
Tanodbayan.5
On the second argument, the Deputy Ombudsman held that petitioners were public
officers within the definition of RA 3019, Section 2 (b). Under that provision, public
officers included "elective, appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the Government."
The dispositive portion of the Deputy Ombudsman's order read:
WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO
DISMISS, the same is hereby DENIED and petitioners are hereby ordered to
submit their answer within ten (10) days from receipt hereof.6
xxx xxx xxx
Petitioners appealed the order to the Ombudsman. There, they raised the same
issues. Treating the appeal as a motion for reconsideration, the Ombudsman
dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC,
hence, he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's
ruling that Quimpo was applicable to petitioners' case.
In this petition for certiorari, with prayer for issuance of a temporary restraining order,
petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy
Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public
respondents acted without jurisdiction and/or grave abuse of discretion in proceeding
with the investigation of the case against them although they were officers of a private
corporation and not "public officers."8
In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction
only covers GOCCs with original charters and these do not include PAL, a private
entity created under the general corporation law; (2) Quimpo does not apply to the
case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be
investigated or prosecuted under that law.
We find merit in petitioners' arguments and hold that public respondents do not have
the authority to prosecute them for violation of RA 3019.
JURISDICTION OF THE OMBUDSMAN OVER GOCCS
IS CONFINED ONLY TO THOSE WITH ORIGINAL
CHARTERS
The 1987 Constitution states the powers and functions of the Office of the
Ombudsman. Specifically, Article XI, Section 13(2) provides:
Sec. 13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
xxx xxx xxx
(2) Direct, upon complaint or at its own instance, any public official
or employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as any government-owned or
controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties. (italics supplied)
xxx xxx xxx
Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction
over public officials/ employees of GOCCs with original charters. This being so, it can
only investigate and prosecute acts or omissions of the officials/employees of
government corporations. Therefore, although the government later on acquired the
controlling interest in PAL, the fact remains that the latter did not have an "original
charter" and its officers/employees could not be investigated and/or prosecuted by the
Ombudsman.
In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with
original charter" means "chartered by special law as distinguished from corporations
organized under the Corporation Code." PAL, being originally a private corporation
seeded by private capital and created under the general corporation law, does not fall
within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of
the Constitution. Consequently, the latter is devoid of authority to investigate or
prosecute petitioners.
Quimpo Not Applicable
to the Case at Bar
Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in
1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation
of RA 3019. These officers sought the dismissal of the case on the ground that the
Tanodbayan had no jurisdiction over them as officers/employees of a private
company. The Court declared that the Tanodbayan had jurisdiction over them
because PETROPHIL ceased to be a private entity when Philippine National Oil
Corporation (PNOC) acquired its shares.
In hindsight, although Quimpo appears, on first impression, relevant to this case (like
PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny
reveals that it is not actually on all fours with the facts here.
In Quimpo, the government acquired PETROPHIL to "perform functions related to
government programs and policies on oil."11 The fact that the purpose in acquiring
PETROPHIL was for it to undertake governmental functions related to oil was
decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the
case with PAL. The records indicate that the government acquired the controlling
interest in the airline as a result of the conversion into equity of its unpaid loans in
GSIS. No governmental functions at all were involved.
Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the
1973 Constitution which the Court relied on in concluding that the Tanodbayan had
jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article
XIII, Section 6:
SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman,
to be known as the Tanodbayan, which shall receive and investigate
complaints relative to public office, including those in government-owned or
controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding
criminal, civil, or administrative case before the proper court or body. (italics
supplied)
The term "government-owned or controlled corporations" in the 1973 Constitution was
qualified by the 1987 Constitution to refer only to those with original charters.12
Petitioners, as then Officers of
PAL, were not Public Officers
Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines
who "public officers" are. Instead, its varied definitions and concepts are found in
different statutes13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a
recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the
Court extensively quoted his exposition on the term "public officers":
A public office is the right, authority and duty, created and conferred by law,
by which, for a given period, either fixed by law or enduring at the pleasure
of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit
of the public. The individual so invested is a public officer.
The characteristics of a public office, according to Mechem, include the
delegation of sovereign functions, its creation by law and not by contract, an
oath, salary, continuance of the position, scope of duties, and the
designation of the position as an office.
xxx xxx xxx
Mechem describes the delegation to the individual of the sovereign functions
of government as "[t]he most important characteristic" in determining
whether a position is a public office or not.
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign functions of
government to be exercised by him for the benefit of the public; − that some
portion of the sovereignty of the country, either legislative, executive, or
judicial, attaches, for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the individual is not a public
officer.16 (italics supplied)
From the foregoing, it can be reasonably inferred that "public officers" are those
endowed with the exercise of sovereign executive, legislative or judicial
functions.17 The explication of the term is also consistent with the Court's
pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are
deemed "public officers" if their corporations are tasked to carry out governmental
functions.
In any event, PAL has since reverted to private ownership and we find it pointless to
scrutinize the implications of a legal issue that technically no longer exists.
WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy
Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding
with the investigation or prosecution of the complaint against petitioners for violation
of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22,
1996, respectively, are SET ASIDE and ANNULLED.

SO ORDERED.
G.R. No. 80270 February 27, 1990 with respondent to the
Zamboanga Plaza Hotel,
CITY MAYOR OF ZAMBOANGA, petitioner, Zamboanga City, and by
vs. deliberately suggesting that her
COURT OF APPEALS AND EUSTAQUIO C. ARGANA, respondents. husband should not have any
knowledge of his proposals and
suggesting further that she
should not report for work any
more but for her to wait in the
GANCAYCO, J.: premises of the Macatangay
Drug Store, Zamboanga City,
Public office is a public trust. All government officials and employees must at all times so that both of them can later
be accountable to the people, serve them with utmost responsibility, integrity, loyalty proceed to the Zamboanga
and efficiency act with patriotism and justice, and lead modest lives. 1 This Plaza Hotel; for contriving
constitutional mandate should always be in the minds of all public servants to guide and/or manuevering to assign
them in their actions during their entire tenure in the government service. her husband, Expedito de los
Santos, to remote districts in
the East Coast of the City in
Upon appointment to a public office, an officer or employee is required to take his order that he (Argana) can
oath of office whereby he solemnly swears to support and defend the Constitution, conveniently pursue his
bear true faith and allegiance to the same; obey the laws, legal orders and decrees amorous intentions and
promulgated by the duly constituted authorities; and faithfully discharge to the best of solicitations towards her; and
his ability the duties of the position he will hold. for persisting to bother her and
trying to convince her to
Yet, time and again, We hear of public servants acting in utter defiance of the establish an illicit relation with
principles enshrined in the Constitution and in complete disregard of what they swore him, promising that her
in the name of God before assuming their posts in the public service. Consequently, husband will never know about
the people's trust and faith in the government has slowly eroded. There in very little it anyway.
respect and confidence left.
Against Mrs. Ma. Carmen G. (Alpichi) —
This in turn has resulted in a widespread feeling of disappointment and dissatisfaction
in the government machinery. Gone are the days when one of the shining ambitions For his persistent act of inviting
of a college graduate was to have a career in the civil service; when working in the her on several occasions to go
government meant self-fulfillment. Now, young and talented graduates shy away from with him to discreet eateries,
the public service which is unfortunately perceived to be unattractive and totally and on one occasion, to dine
lacking in luster. It is only when those in the government sector serve with the highest and drink with him at the Happy
degree of responsibility, integrity, loyalty and efficiency and act in accordance with the Landing Restaurant at the
tenets of the Constitution can such lost respect and confidence be regained. This Zamboanga City Airport during
case is typical of what a public servant should not be. office hours in order to
persuade her to accept his
The Chief Veterinarian of Zamboanga City, a civil servant, is the private respondent amorous advances and even
herein. Three female employees of the Office of the City Veterinarian of Zamboanga offered her money as capital
City headed by private respondent, filed an administrative complaint against him for for a sari-sari store; and in
Dishonesty, Oppression and Disgraceful and Immoral Conduct for the following acts taking her to dine and drink
he allegedly committed — with him in a certain store
owned by Olegario Barrios at
Ayala, Zamboanga City, during
Against Mrs. Pilar N. de los Santos —
office hours, which lasted until
6:00 o'clock in the evening and
for inviting and/or insisting, on made several amorous passes
several occasions, that she go at her.
 Against Mrs. Rosa Sonia Guevarra
For inviting her to accompany
him in his jeep to go out on
official missions but instead
taking her to a canteen inside
the Edwin Andrews Air Base,
Zamboanga City, to be with
him privately and then
subsequently inviting her to go
and play bowling with him and
to have a date with him at the
Sultana Hotel the next day; and
for offering her the amount of
P50.00 to convince her to
submit to his amorous
intentions. 2
On November 31, 1983, in due course, the then Mayor of Zamboanga City, Hon.
Cesar Climaco, rendered a Decision, finding private respondent guilty of Disgraceful
and Immoral Conduct and penalizing him with "forced resignation from service with
prejudice to reinstatement." Private respondent appealed to the Civil Service Regional
Director who referred the case to the Merit Systems Board of the Civil Service
Commission. The latter found private respondent guilty only of Improper Conduct with
a penalty of "reprimand and warning."
On appeal to the Civil Service Commission, the Decision of the Merit Systems Board
dated January 4, 1985 was set aside and the Decision of Mayor Climaco finding
private respondent guilty of Disgraceful and Immoral Conduct was sustained. The
penalty of "considered resigned from service with prejudice to reinstatement" was
reimposed on private respondent.
Again, private respondent filed an appeal — this time with the Court of Appeals. On
August 10, 1987, the Court of Appeals rendered its Decision, setting aside the
Decision of the Civil Service Commission and reinstating that of the Merit Systems
Board modifying the penalty thereof to "six-months suspension without pay with a
stern warning that repetition of the same or similar offense will be dealt with more
severely." The Court of Appeals further ordered the reinstatement of private
respondent with full backwages after having served the penalty.
Not satisfied with the above-mentioned Decision of the Court of Appeals, the City
Mayor of Zamboanga filed this petition for review praying that the said Decision be set
aside and that the Decision of the Civil Service Commission penalizing respondent
with forced resignation, be reinstated.
The first assigned error is that the Court of Appeals erred in directing the payment of
private respondent's backwages to which the Solicitor General agrees. A review of
the records of this case and the applicable laws and jurisprudence reveal that the
order of payment of back salaries to private respondent is not valid.
Section 78 of the B.P. Blg. 337, otherwise known as the Local Government Code,
provides for the conditions under which a public servant who was suspended or
dismissed by reason of an administrative charge, may be entitled to full backwages,
thus:
Sec. 78. Disciplinary Jurisdiction. — (1) Except as otherwise
provided by law, the head of a local government unit shall have
authority to remove, separate, suspend and otherwise discipline
officials and employees under his jurisdiction. If the penalty
imposed is suspension without pay for not more than thirty days, his
decision shall be final. If the penalty imposed is heavier, the
decision shall be appealable to the Civil Service Commission which
has final authority upon all matters relating to the conduct, discipline
and efficiency of local government officials and employees. If the
respondent is in the career executive service, appeal shall be made
to the Career Service Board.
(2) An appeal shall not prevent a decision from
becoming executory, and in case the penalty is
suspension or removal, the respondent shall be
considered as having been under preventive
suspension during the pendency of an appeal in
the event he wins such appeal. However, the
respondent shall be paid his salary corresponding
to the period during which the appeal is pending
in the event he is completely
exonerated. (Emphasis supplied.)
Under the above-quoted provision, it is required that private respondent must be
exonerated of the charges in order that he may be paid his back salaries. In the case
at bar, it is quite apparent from the facts that private respondent was not cleared of
the charges. The Court of Appeals affirmed the decision of the Merit and Systems
Board which on the other hand found private respondent guilty of "Improper Conduct."
It is because of this finding of guilt that the Court of Appeals imposed a penalty of six-
months suspension on private respondent. Also, the stern warning handed down by
the Court of Appeals on private respondent that a "repetition of the same or similar
offense will be dealt with more severely" only shows that the said Court did not
exonerate him of the offense.
In a long line of cases, 3 this Court reiterated the principle that back salaries may be
ordered paid to an officer or employee only if he is exonerated of the charge against
him and his suspension or dismissal is found and declared to be illegal. In Sales vs.
Mathay, Sr., 4 this Court held that a postal clerk suspended for six months for gross
neglect of duty is not entitled to back salary if he cannot show that his suspension
was unjustified or that he is innocent of the charge.
Thus, the order of payment of full backwages in this case is without lawful basis.
Indeed, to allow private respondent to receive full back salaries would amount to
rewarding him for his misdeeds and compensating him for services that were never
rendered.
As to the specific offense/s committed and the proper penalty to be imposed, the
Court finds that private respondent is guilty of "Disgraceful and Immoral Conduct" as
well as "Grave Misconduct" and must be meted the penalty of dismissal.
Under Memorandum Circular No. 30, series of 1989 issued by the Civil Service
Commission, "Disgraceful and Immoral Conduct" and "Grave Misconduct" are
classified as grave offenses punishable by dismissal. The acts of private respondent
constituting the aforementioned administrative offenses were duly established as
shown in the following testimonies of his three female subordinates:
From Mrs. Pilar de los Santos —
That in connection with the
respondent's invitation to her to
dine with him at the
Zamboanga Plaza Hotel, when
she suggested to him that she
bring her husband along with
her, respondent refused saying
that he will not enjoy while her
husband is around (TSN, p.
12); that suspicious of the
respondent's motive, she
turned down the invitation
(TSN, p. 14)-l that the incident
prompted her to tender her
letter of resignation from the
office; that she told the incident
to Mr. Vicente Lacandalo,
another employee in the Office
of the City Veterinarian; that
Mr. Lacandalo talked to
respondent regarding the
matter, then respondent came
out later of his room and he
was very mad at her; that she
did not let her husband know
about the incident knowing that
he has a bad temper; that
because of her repeated
refusal to accept respondent
harassed her by refusing to
sign her clearance for transfer
to the Sangguniang Pampook;
and that the respondent forced
her to sign a promissory note in
connection with the lost
typewriter as a condition to
approving her transfer to the
Sangguniang Pampook (TSN,
pp. 17-26).
From Mrs. Ma. Carmen G. Alpichi —
That she was a Livestock
Inspector in the Office of the
City Veterinarian; that when the
respondent learned that her
husband was about to leave for
Manila to attend a 45-day
seminar, he (respondent)
assigned her at the airport as
Quarantine Officer and while
there, he frequented visiting
her and everytime he visits her,
he invites her to a snack or
lunch; that respondent keeps
on asking her when her
husband will arrive (TSN, p.
45); that she noticed
respondent's amorous
intentions towards her from
1979 (TSN, p. 45); that when
she informed her husband
about it, he advised her to be
more careful; that she can
remember that Argana invited
her three (3) times to dine with
him, and she went with him to
the Sandwich Restaurant in
Atilano for about three (3)
hours at about 8:30 in the
morning, during office hours,
on the first occasion; and for
about 30 minutes on the
second occasion; while it lasted
from 10:00 o'clock in the
morning to 12:00 o'clock noon
on the third occasion (TSN, pp.
49 & 50); that when she asked
the respondent to recommend
the renewal of her appointment
he asked her what gift she is
willing to give him and that in
answer thereto she said that
she will do her job very well
and show that she is interested
in her work, but to which
respondent replied that 'it is not
a gift;' that, therefore, she
asked him what gift he really
wanted and to which he replied
'the gift which (1) she will give
 him with all (my) her heart that
as a woman, she felt that by
that statement, respondent
wanted her to give herself to
him (TSN, p. 57); and that one
time in the store of Olegario
Barrios in Ayala, Zamboanga
City, while respondent and a
certain Mr. Policarpio were
drinking beer, respondent
talked to her about sex to the
effect that if a man will
convince (me) her to make sex,
'ansina daw ese sir, si quiere
daw eyo man sex con el hente
maskin casao, ya daw ansina'
(that if a man will convince her
to make sex, a man, though
married, may have sex with
another woman. (TSN, p. 61).
From Mrs, Rosa Sonia M. Guevarra —
That she was a Meat and
Livestock Inspector in the
Office of the City Veterinarian,
Zamboanga City; that she
refused respondent's invitation
to her to go with him on
bowling; that on September,
23, 1980 when she went with
respondent in his jeep he held
her left hand very tightly before
she could alight from the said
jeep and then he offered her
P50.00; that when she told her
father-in-law about the incident
on the same day he was very
mad; that when she arrived at
the office in the afternoon of
the same day she related the
incident to Mr. Honorato Loon,
a co-employee; that when she
approached the respondent
later for him to sign her
application for sick leave he
asked her what gift (you) she
can give to (me) him if (I) he
will sign her leave,' to which
she answered she can give
(you) him a bottle of wine ...
and cigarettes,' but respondent
replied '(1) he can buy those
things' because 'what he really
wanted is sexual intercourse
(TSN, p. 110). 5
In determining what penalty must be imposed on private respondent, the Court took
into consideration the fact that there is here not only one but three complainants, all
married at that. It projects the abnormality of private respondent's behavior consisting
of a libidinous desire for women and the propensity to sexually harass members of
the opp•site sex working with him.
The manner in which he communicated his desire for the complaining ladies —
proposing to meet them at hotels, tempting them with money to submit to his
advances and even coaching them to avoid being caught by their husbands, depicts
the private respondent's moral depravity.
What aggravates the situation is the undeniable circumstance that private respondent
took advantage of his position as the superior of the three ladies involved herein.
Being the chief of office, it was incumbent upon private respondent to set an example
to the others as to how they should conduct themselves in public office, to see to it
that his subordinates work efficiently in accordance with Civil Service Rules and
Regulations, and to provide them with a healthy working atmosphere wherein co-
workers treat each other with respect, courtesy and cooperation, so that in the end
the public interest will be benefited.
On the contrary, private respondent, who was supposed to be the head of their office,
goaded his female subordinates to dine and drink with him during office hours; asked
for "gifts" in exchange for his official signature or favor; utilized his rank to get back at
those who refused his advances and those who sympathized with the latter; and even
instructed one of them not to report for work but to instead meet with him so that he
could bring her to a hotel. Such acts of private respondent cannot be condoned. He
should not be let loose to pursue his lewd advances towards lady employees in said
office.
Indeed, to reinstate private respondent to his former position with full backwages
would make a mockery of the fundamental rule that a public office is a public trust and
would render futile the constitutional dictates on the promotion of morale, efficiency,
integrity, responsiveness, progressiveness and courtesy in the government
service. 6 Likewise, reinstatement would place private respondent in such a position
where the persons whom he is supposed to lead have already lost their respect for
him and where his tarnished reputation would continue to hound him.
For the sake of his former subordinates, and for his own sake, and bearing in mind
that a public office must be held by a person who is both mentally and morally fit, the
Court finds private respondent guilty of "Disgraceful and Immoral Conduct" and
"Grave Misconduct" in office and he is hereby imposed the penalty of dismissal
pursuant to the provisions of Civil Service Commission Memorandum Circular No. 30,
series of 1989.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No. 06835 is

REVERSED. The Decision of the Civil Service Commission in CSC Case No. 2322
dated July 10, 1985 is hereby reinstated, with the modification that the penalty to be
imposed on private respondent should be that of dismissal. The Court makes no
pronouncement as to costs.

SO ORDERED.
 [A.M. NO. P-06-2238 : September 27, 2007]
Edgar Noel C. Licardo, Complainant, v. Juliet Almonte Licardo, Utility Worker,
MCTC, Biliran, Biliran, Respondent.
RESOLUTION
CHICO-NAZARIO, J.:
This administrative matter refers to the charge of immorality filed by complainant
Edgar Noel Licardo against his wife, respondent Juliet Almonte Licardo, Utility Worker
of the Municipal Circuit Trial Court (MCTC), Biliran, Cabucgayan-Biliran, for
maintaining illicit relations with Winnie Caparro, a married man.
In a letter-complaint1 dated 7 April 2005, complainant charged respondent with
dishonesty and immoral acts for engaging in an amorous and illicit relationship with
Caparro.
The letter-complaint alleges:
I, Edgar Noel C. Licardo, of legal age, Filipino, born-again Christian, married to Juliet
Almonte Licardo, and a residence (sic) of 471 Sta Elena Street, Biliran, Biliran
Province, Philippines. I am a registered OFW with OWWA POEA No. 91-005027-W
issued on 03 September 1991 and OWWA ID No. 04-3677039 issued on 14 January
2005 with a Philippine Passport No. NN0089441 issued on 05 August 2004 at
Philippine Embassy, Riyadh, KSA (machine copy is hereto attached), after having
been duly sworn to in accordance with law, do hereby depose and say THAT;
1. My wife and I are legally married and our marriage were (sic) duly solemnized on
October 01, 1989 at Palo Cathedral, Palo Leyte, Philippines;
2. I am presently working in Riyadh, Kingdom of Saudi Arabia since 1991 to date. I
had arrived here in Riyadh last February 17, 2005 from vacation in the Philippines;
3. I have two (2) minor children who are presently studying as secondary students in
Naval, Biliran Province, namely, Cherry Laine A. Licardo and Mark Jhones A. Licardo;
4. I am appealing to your good office to consider my complaint regarding the
dishonesty and immoral acts of my wife, Juliet Almonte Licardo your employee in 2nd
MCTC, Biliran-Cabucgayan, Biliran Branch, Biliran Province since October 24, 2003
as a regular Utility employee;
5. After my Twenty-eight (28) months of continuous work in Riyadh, I went for
vacation on November 19, 2004 and met my family in Biliran, Biliran Province. After a
month, many of my closest friends and relatives informed me that before returning
back to Riyadh, I should investigate first the illicit acts of my wife to see and unfold her
adulterous activities during those months I was away. They also told me to be vigilant
while I am still in our area as I am deceived and betrayed by my wife with respect to
her illicit relationships with another men (sic);
6. Through my effort, I found out that she was harboring a secret having an illicit
relationships with some men for years when I was in abroad, going and committing
adulterous acts in cities and town away from our place. To make things clear, my
children and I had seen with our two eyes that she is now living with one of her lover
boys, Mr. Winnie Caparro (a very married man) in Agpangi, Naval, Biliran Province
starting January 2005. And even until now, they are living together in the said place
as common law husband and wife even though I am very much alive and very much
married to Juliet Almonte Licardo as our marriage has not been declared null and void
or annulled by the Court;
7. My neighbors were also complaining about her erratic behavior and even to their
illicit relationships as their presence were seen in my very (sic) own residence during
school days while my children is away in school in Naval, Biliran as my kids are living
with my parent-in-laws. My children used to go home to my residence during
weekends only so my wife was left alone in the house, and she has all the
opportunities to do so without the knowledge of my children;
8. I only have limited time left to stay in Philippines so, I was not able to file adultery
case against her as (sic) I wanted to do so. Since I do not have other source of
income, I have to leave our Country again to support my minor children who are now
living under my care & custody. My children is (sic) now living in our residence in
Biliran, Biliran and they are commuting daily to their school in Naval, Biliran, while
their mother as of now is happily living with her common law husband in Agpangi,
Naval, Biliran;
9. Lastly, in case I will be examined as to my character and failthfulness to my wife,
please refer to my colleague Pastor Romy Pagba (a retired OFW) and now residing in
Catmon, Naval, Biliran Province to whom I was known for my entire fourteen (14)
years in the kingdom. I believe that our administration of justice should not be tainted
with disgraceful and immoral act that would tarnishes (sic) the image of this Court.
Our town in general, demanded that those who manned the administration of justice
should be clothed with honesty, modesty, sincerity, and with good moral standing in
the community. In view of the above-stated facts and in despite (sic) of my absence, I
am respectfully requesting your good office to conduct an administrative investigation
with respect to the illicit affairs of my wife Juliet Almonte Licardo & [her] common law
husband who are now living together in one roof and in plain view of the general
public to the prejudice of the administration of justice and thereafter imposed the
necessary sanctions as our law provides, so I may be given a fair result being an
Overseas Filipino Worker.
In her Comment dated 26 July 2005, respondent vehemently denied her husband's
accusation. She admitted, however, that she and her husband are separated in fact
because they always fought about money matters which oftentimes resulted in
physical confrontation. According to respondent, complainant was sending Eight
Thousand Pesos (P8,000.00) every month for support but after her appointment as
utility worker at the MCTC, Cabucgayan-Biliran, complainant reduced the amount to
Three Thousand Pesos (P3,000.00) monthly.
On 26 April 2005, Senior Deputy Court Administrator Zenaida Elepaño (DCA
Elepaño) of the Office of the Court Administrator (OCA) referred the letter-complaint
to Executive Judge Pepe P. Domael (Judge Domael), Regional Trial Court (RTC),
Caibiran, Biliran, for investigation.
During the investigation, respondent claimed that she and Caparro were only friends,
considering that they were schoolmates in high school. She admitted that she
regularly went to Barangay Agpangi upon the invitation of the latter. After she left the
complainant, she did not stay with her parents, but instead, she opted to rent a room
in Agpangi because her parents were not in favor of the separation.
Josephine Lumbao, Barangay Chairman of Agpangi, Naval, Biliran and Lorna
Sabuag, cousin of Caparro's wife, testified that they saw respondent every day at
Caparro's house in Agpangi. Moreover, Lumbao claimed that every morning, she saw
respondent and Caparro together riding a motorcycle, going to Biliran where
respondent works. Romeo Pagba, a Born Again Christian minister, testified that
complainant told him that respondent already left him for another man.
On 2 June 2006, DCA Elepaño ordered Judge Domael to conduct a more thorough
investigation. However, Judge Domael in his report2 dated 15 June 2006, claimed that
to conduct another investigation would be duplicitous. He was convinced that there
was truth in the imputation hurled by complainant and recommended that respondent
be sanctioned for committing a disgraceful and immoral conduct with suspension for
six months and one day to one year.
On 28 July 2006, the OCA submitted its report,3 recommending that -
WHEREFORE, IN VIEW OF THE FOREGOING, this Office respectfully recommends
to the Honorable Court that:
1. The matter be FORMALLY DOCKETED as an administrative complaint against
Juliet Almonte Licardo, Utility Worker, MCTC, Biliran-Cabucgayan, Biliran;
andcralawlibrary
2. Juliet Almonte Licardo be SUSPENDED for six (6) months and one (1) day with a
WARNING that repetition of the same or similar act in the future shall be dealt with
more severely.
On 30 August 2006, we required4 the parties herein to manifest within 10 days from
notice if they were willing to submit the matter for resolution based on the pleadings
filed.
Complainant submitted his manifestation5 stating that he was submitting the case for
resolution based on the pleadings filed; while respondent submitted her
manifestation6 with motion to admit additional evidence consisting of attached joint-
affidavits of two of her classmates in high school attesting to the fact they never
noticed any unusual relationship between respondent and Caparro. We noted the
manifestation and granted the motion to admit additional evidence on 4 June 2007.
Resultantly, the case is submitted for decision based on the pleadings filed.
After thoroughly reviewing the records of this case, we agree in the recommendation
of the Court Administrator.
The charge of immorality against respondent was sufficiently established. Witnesses,
namely, Lorna Sabuag and Barangay Chairman Josephine Lumbao, testified during
the investigation conducted by Judge Domael that they had observed respondent
living in the house of Caparro, a married man, and often riding at the back of a
motorcycle driven by Caparro, with the two deporting themselves as husband and
wife.
Lorna Cabuag testified thus:
Q. Do you have any knowledge or information that Juliet Almonte Licardo being
married to a man named Edgar Noel Licardo, was formerly living in Biliran, Biliran?cra
lawlibrary
A. Yes sir.
Q. When did you see or find out that Juliet Almonte Licardo living (sic) in Agpangi,
Naval, Biliran?cra lawlibrary
A. Almost three (3) months now because when I went to Agpangi, Naval, Biliran
together with Nancy Batiquin to deal with the land of Emiliana Tonelete regarding the
transaction of her land to the owner of Marvin's James Place and that time I say that
was the time I saw Jingjing (Juliet Almonte Licardo) in the house occupied by Winnie
Caparro.
Q. How many times you saw her?cra lawlibrary
A. I saw her many times and one time I saw them going to the seashore or the beach
of Agpangi.7
Josephine Lumbao, Barangay Chairman of Barangay Agpangi, Naval, Biliran, testified
thus:
Q. As Barangay Captain of Brgy. Agpangi, Naval, Biliran, would you say that you
know the residents of your barangay?cra lawlibrary
A. Yes sir.
Q. Do you know a person by the name of Winnie Caparro?cra lawlibrary
A. Yes I know.
Q. Is he a married man?cra lawlibrary
A. Yes sir.
Q. Who is his wife?cra lawlibrary
A. A certain Michelle.
Q. Are they living together in your barangay this Winnie Caparro and his wife
Michelle?cra lawlibrary
A. Previously they were living together in our barangay, but presently Michelle is no
longer living in our barangay, as I know she is in Manila.
Q. At present who is living together with Winnie Caparro?cra lawlibrary
A. Because his wife is in Manila, Winnie Caparro is living with a woman named Juliet
Almonte.
Q. Do you know personally Juliet Almonte?cra lawlibrary
A. I do not know her.
Q. Why did you know that she is Juliet Almonte?cra lawlibrary
A. I came to know Juliet Almonte when sometime she went to my residence together
with her sister Lotlot to borrow money.
Q. So then, that was the first time you know Juliet Almonte?cra lawlibrary
A. Yes sir.
Q. When was that when she went to your residence?cra lawlibrary
A. Probably it was last year.
Q. The next time you saw her when was that?cra lawlibrary
A. The next time I saw her when she was with Winnie Caparro coming from
Masagongsong Pool together with some of the relatives of Winnie Caparro, I was
then even surprised why Juliet Almonte went together with Winnie Caparro.
Q. When was that when you saw him for the 2nd time?cra lawlibrary
A. Probably that was December of 2004.
Q. Since from that time until now do you still see this Juliet Almonte living in your
barangay, living in the house of Winnie Capparo?cra lawlibrary
A. Yes everyday.
Q. What more can you say about this Juliet Almonte now living together with Winnie
Caparro?cra lawlibrary
A. I saw her every morning riding a motorcycle with Winnie Caparro driving and Juliet
Almonte at the back seat.
Q. Where are they suppose to go?cra lawlibrary
A. Although I am not sure where they were going, but probably because I know Juliet
Almonte is working in Biliran they maybe (sic) perhaps go there.
Q Is Juliet Almonte employed in any government agency?cra lawlibrary
A. I do not know.
Q. But could you say that Juliet Almonte is also married?cra lawlibrary
A. Yes I know, because when for the first time they went to my residence Lotlot told
me that her sister Juliet Almonte is also married.
Q. You know the name of her husband?cra lawlibrary
A. I do not know.
Q. At present would you still say that Juliet Almonte is living in your barangay together
with Winnie Caparro?cra lawlibrary
A. Yes sir.
Q. While you do not know the name of her husband but at least you can say that her
husband is working abroad from where did you get this information that her husband
is abroad?cra lawlibrary
A. From Juliet herself when for the first time she went to my residence and also her
sister Lotlot told me.
Q. What can you say with this Winnie Caparro and Juliet Almonte living together in
one house at your barangay?cra lawlibrary
A. What I can say is that they seemed to be husband and wife.8
Respondent failed to refute these charges. She merely interposed a general denial of
the accusation against her. Her general denial, however, cannot stand against the
positive and detailed accounts of the witnesses. It is settled that denial is an
inherently weak defense. To be believed, it must be buttressed by strong evidence of
non-culpability; otherwise, such denial is purely self-serving and with no evidentiary
value. Like the defense of alibi, denial crumbles in the light of positive declarations. 9
There was no showing that the witnesses were actuated by ill motives to testify
against respondent. Absent any evidence showing a reason or motive for a witness to
perjure, the logical conclusion is that no such improper motive exists, 10 and his/her
testimony is thus worthy of full faith and credit.
Admittedly, it was not conclusively proven that respondent had illicit affairs with a man
other than her husband, as no one actually saw her having sexual intercourse with
him. However, immorality is not based alone on illicit sexual intercourse. It is "not
confined to sexual matters, but includes conducts inconsistent with rectitude, or
indicative of corruption, indecency, depravity, and dissoluteness; or is willful, flagrant
or shameless conduct showing moral indifference to opinions of respectable members
of the community, and as an inconsiderate attitude toward good order and public
welfare."11 In Zaguirre v. Castillo,12 we reiterated the definition of immoral conduct as
such conduct which is so willful, flagrant, or shameless as to show indifference to the
opinion of good and respectable members of the community.
Time and again, we have stressed adherence to the principle that public office is a
public trust. All government officials 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. This constitutional mandate
should always be in the minds of all public servants to guide them in their actions
during their entire tenure in the government service. The good of the service and the
degree of morality which every official and employee in the public service must
observe, if respect and confidence are to be maintained by the Government in the
enforcement of the law, demand that no untoward conduct on his part, affecting
morality, integrity and efficiency while holding office should be left without proper and
commensurate sanction, all attendant circumstances taken into account. 13
It must also be stressed that while every office in the government is a public trust, no
position exacts a greater demand for moral righteousness and uprightness from an
individual who is part of the Judiciary. Indeed, the image of a court of justice is
mirrored in the conduct of the personnel who work therein, from the judge to the
lowest of its personnel. The exacting standards of ethics and morality upon court
judges and court employees are required to maintain the people's faith in the courts
as dispensers of justice, and whose image is mirrored by their actuations.14 In the
language of Justice Cecilia Muñoz-Palma'
[T]he image of a court of justice is necessarily mirrored in the conduct, official or
otherwise, of the men and women who work thereat, from the judge to the least and
lowest of its personnel - hence, it becomes the imperative sacred duty of each and
everyone in the court to maintain its good name and standing as a true temple of
justice.15
Court employees are enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the good name
and integrity of the courts of justice.16 The conduct of court personnel must be free
from any whiff of impropriety, not only with respect to their duties in the judicial
branch, but also to their behavior outside the court as private individuals. There is no
dichotomy of morality; a court employee is also judged by his or her private
morals.17 Court personnel, from the lowliest employee to the clerk of court or any
position lower than that of a judge or justice, are involved in the dispensation of
justice, and parties seeking redress from the courts for grievances look upon them as
part of the Judiciary. They serve as sentinels of justice, and any act of impropriety on
their part immeasurably affect the honor and dignity of the Judiciary and the people's
confidence in it. They must avoid all impropriety and even the appearance of
impropriety. Thus, any conduct which tends to diminish the image of the Judiciary
cannot be countenanced.18
Being the subject of constant public scrutiny, members of the bench should freely and
willingly accept behavioral restrictions that may be viewed by ordinary citizens as
burdensome. Their personal and official actuations must be above reproach and
suspicion. The faith and confidence of the public in the administration of justice
cannot be maintained if those who dispense it obtusely continue to affront public
decency. In the Judiciary, moral integrity is more than a cardinal virtue; it is a
necessity.19
Clearly then, the respondent's conduct falls short of the stringent standards required
of court employees. Respondent, as a court employee, did not live up to her
commitment to lead a moral life. Her act of maintaining a relationship with Capparo
speaks for itself. Respondent is guilty of immoral and disgraceful
conduct.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Under the Administrative Code of 1987, disgraceful and immoral conduct is a ground
for disciplinary action.20 The disciplinary authority may impose the penalty of removal
from the service, demotion in rank, suspension for not more than one year without
pay, fine in an amount not exceeding six month's salary, or reprimand.21
In Ecube-Badel v. Badel,22 this Court suspended a court employee for one year for
having illicit relations with another woman not his wife by whom he begot a child.
Under Rule XIV, Section 23(o) of the Civil Service Rules and applicable rulings,
immorality is considered a grave offense and is punished by suspension for six
months and one day to one year for the first offense and, for the second offense, by
dismissal.
In Nalupta, Jr. v. Tapec,23 this Court held that illicit relations are considered
disgraceful and immoral conduct subject to disciplinary action. Under Rule XIV,
Section 23 of the Omnibus Rules Implementing Book V of Executive Order No. 292
and other pertinent Civil Service Laws, disgraceful and immoral conduct is classified
as a grave offense for which the penalty of suspension for six months and one day to
one year shall be imposed for the first offense while the penalty of dismissal shall be
imposed for the second offense.
Considering that the instant administrative complaint for immorality against
respondent is her first offense, the Court deems it appropriate to suspend respondent
for six months and one day.

WHEREFORE, respondent Juliet Licardo is SUSPENDED for a period of six (6)

months and one (1) day without pay, with a stern warning that subsequent violations
of similar nature will be dealt with a more severe penalty.

SO ORDERED.
 [A.M. NO. P-05-2015 : June 28, 2005]
ANONYMOUS COMPLAINT AGAINST PERSHING T. YARED, Sheriff III,
Municipal Trial Court in Cities, Canlaon City.
DECISION
CALLEJO, SR., J.:
The instant administrative case arose when an anonymous complainant filed a Letter-
Complaint1 dated April 10, 2001 before the Office of the Ombudsman, Visayas,
charging Perishing T. Yared, Sheriff III, presently detailed at the Municipal Trial Court
in Cities (MTCC), Guihulngan, Negros Oriental, with grave misconduct for collecting
excessive service fees.
In support of the charge, the unknown complainant submitted two receipts issued by
the respondent Sheriff: (1) an undated receipt2 where the amount of P1,350.00 was
reflected as service fees for summons in three civil cases; and (2) a receipt 3 dated
February 7, 2000 reflecting the amount of P1,650.00 for four civil cases. Citing
Section 9(a) of Resolution No. 00-2-01-SC, amending Rule 141 of the Rules of Court,
the complainant pointed out that multiplying the number of defendants by P60.00 per
service fee, the respondent was only entitled to P660.00 for the service of summons
in the civil cases; following the same computation, the fee for the rest of the cases
should have been only P720.00.4
In a Letter5 dated April 30, 2001, the Office of the Ombudsman forwarded the
anonymous complaint to the Office of the Court Administrator. Thereafter, then
Deputy Court Administrator Bernardo T. Ponferrada referred the matter to Executive
Judge Hector B. Barillo of the MTCC, Canlaon City, for discreet investigation and
report.6
In his Report7 dated July 27, 2001, Judge Barillo enumerated the cases subject
matter of Annexes "A" and "B," and averred that there were 24 defendants who were
to be served with summons. The Executive Judge opined that Section 9 of Rule 141
does not fix the amount for sheriff's expenses in serving or executing processes. He
further reported that Sheriff Yared only asked P150.00 for each defendant whose
residence was outside the poblacion even if he (the respondent Sheriff) was uncertain
that the defendants could be contacted immediately in his first attempt to serve the
summons. According to the Investigating Judge, it was from the amount collected that
respondent Sheriff took P300.00 for the rental of a motorcycle. Judge Barillo added
that he was well aware of the sheriff's procedure in collecting fees, and understood
that the same was based on the doctrine of equity.
In a 1st Indorsement8 dated January 14, 2002, the matter was referred to the
respondent Sheriff for comment. The respondent denied the allegations against him in
his Comment9 dated February 11, 2002, alleging that the amount of P60.00 provided
for under Rule 141 of the Rules of Court is inadequate to cover and defray all the
necessary and incidental expenses for the service of summons outside of his station.
He further contended that the said rule applies only to service of summons within
the poblacionwhere the sheriff is stationed, and does not apply to
the barangays outside the poblacion.
Although the respondent admitted having received the amount of P3,000.00 from the
Rural Bank of Guihulngan, he argued that the same was for the necessary and
incidental expenses which he incurred in serving summons at Vallehermoso, Negros
Oriental. He elaborated that he hired a motorcycle at P200.00 a day, and engaged the
services of a guide at the cost of P100.00 just to locate the residence of the 24
defendants. The respondent, likewise, averred that since some of the defendants
were nowhere to be found, he still had to go back in order to serve the summons,
thus, incurring more expenses.10
In justifying the amount of P3,000.00, the respondent invoked Executive Order No.
248, which he averred entitles all government officials or employees who go out of
their station on official business to traveling expenses. He also claimed that a public
officer is entitled to P300.00 a day excluding transportation fares, board and lodging,
and other incidental expenses. The amount of P3,000.00 was not even enough to
defray his expenses, and as such, he had to spend his own money for the service of
summons.11
Thereafter, Deputy Court Administrator Zenaida N. Elepaño filed her Report dated
April 22, 2002, with the following recommendation:
1. The instant administrative complaint be DOCKETED as a regular administrative
matter;
2. Respondent Sheriff Pershing T. Yared, of [the] MTCC, Canlaon City, Negros
Oriental, be FINED the amount of Two Thousand Pesos (P2,000.00) with
a WARNING that a repetition of the same or similar offense shall be dealt with more
severely.12
The respondent, thereafter, filed a Motion to Dismiss13 the complaint on February 13,
2003. He alleged that the anonymous complainant was not the proper party to file the
complaint, as he could not convincingly claim to be injured as a result of the act or
omission complained of. The respondent further alleged that the pertinent
administrative regulation, Administrative Circular No. 3-2000 dated June 15, 2000,
explicitly provides in no uncertain terms that the party should shoulder the necessary
and incidental expenses and other similar charges for the service of summons. He
added that in this case, the expenses included the hiring of the motorcycle and a
guide to expedite the service of summonses with least possible delay. 14 In support of
his motion, the respondent attached a certification/acknowledgment receipt marked
as Annex "A," executed by Atty. Jonathan L. Eleco, former Clerk of Court, MTCC,
Canlaon City, and now a practicing lawyer. The receipt reflected that in eight other
cases where he was required to serve summons within the vicinity of Canlaon City,
the respondent received the total amount of P2,000.00, to wit:
1. CC# 965-Dominga Calderon P200.00
 or unfounded for such complaint may be easily verified and may, without much
2. CC# 966-Lacria Trasmonte P200.00
difficulty, be substantiated and established by other competent evidence. 17 As this
Court ruled in Anonymous Complaint Against Gibson A. Araula:18
3. CC# 967-Mirasol Vailoces P200.00

4. CC# 968-Jesus Rudavites P400.00 Although the Court does not as a rule act on anonymous complaints, cases are
accepted in which the charge could be fully borne by public records of indubitable
integrity, thus, needing no corroboration by evidence to be offered by the
5. CC# 969-Maria Duro P200.00
complainant, whose identity and integrity could hardly be material where the matter
involved is of public interest.
6. CC# 970-Roselo Velara P400.00

7. CC# 971-Jose España P200.00
8. CC# 972-Urcesia Banacia P200.00
The respondent further elaborated as follows:
A reasonable and prudent mind could easily perceive and reach a conclusion the
extreme impossibility for a person not so familiar on the terrain of the place and the
persons to be served to dispatch the summonses to the 23 defendants in one setting
alone or for only one day. This is the reason why I have to go back and forth to said
town for a number of days. As a matter of fact, I have to spend my own personal
money to defray the necessary and incidental expenses in serving the summonses for
fear that I would be scolded by the Judge considering that the plaintiff in these cases
is the former's nephew. One can imagine that the amount said to be exorbitant and
excessive is very such (sic) insufficient and inadequate to defray the expenses. How
could I charge more than what is allowable as what is being claimed by the
complainant when the latter knows the intimate relationship by affinity between the
Judge and the plaintiff? There were even several instances that I served summonses
and writs of said plaintiff bank without asking even a single centavo because of this
relationship.
WHEREFORE, it is most respectfully prayed to summarily dismiss the above-entitled
case for it is a principle in law that no person should be brought within the terms of
penal statutes who is not clearly within them, nor should any act be pronounced
violative to a certain administrative regulation which is not clearly made so by
statute.15
In a Resolution16 dated July 7, 2003, the Court resolved to deny the respondent's
motion and refer the matter back to Executive Judge Barillo for investigation, report
and recommendation.
Indeed, any conduct, act or omission on the part of all those involved in the
administration of justice which would violate the norm of public accountability and
would diminish or even just tend to diminish the faith of the people in the Judiciary
cannot be countenanced;19 as such, anonymous complaints of this nature should be
accordingly acted upon by this Court.
Section 9(a), Rule 141, of the Rules of Court authorizes the sheriff and other persons
serving summons and copy of complaint to collect the amount of P60.00 for each
defendant. According to the same rule:
In addition to the fees hereinabove fixed, the party requesting the process of any
court, preliminary, incidental or final, shall pay the sheriff's expenses in serving or
executing the process, or safeguarding the property levied upon, attached or seized,
including kilometrage for each kilometer travel, guard's fee's, warehousing and similar
charges, in an amount estimated by the sheriff, subject to the approval of the court.
Upon approval of said estimated expenses, the interested party shall deposit such
amount with the clerk of court and ex officio sheriff, who shall disburse the same to
the deputy sheriff assigned to effect the process, subject to liquidation within the
same period for rendering a return on the process. Any unspent amount shall be
refunded to the party making the deposit. A full report shall be submitted by the
deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as
costs against the judgment debtor.
It is clear then that a sheriff, in the performance of his duties, is not precluded from
collecting additional sums from a requesting party. He is, however, mandated by the
Rules to follow certain steps: First, the sheriff must make an estimate of the expenses
to be incurred by him; Second, he must obtain court approval for such estimated
expenses; Third, the approved amount shall be deposited by the interested party with
the Clerk of Court and Ex Officio Sheriff; Fourth, the Clerk of Court shall disburse the
amount to the executing sheriff; and Fifth, the executing sheriff shall liquidate his
expenses within the same period for rendering a return on the writ.

There is no evidence on record that the respondent followed this procedure. As aptly
In a 2nd Indorsement dated March 18, 2005, the Executive Judge manifested that he
stated by Deputy Court Administrator Elepaño in her evaluation dated April 22,
concurs with the recommendation of Deputy Court Administrator Elepaño that the
2002:
respondent be fined the amount of P2,000.00.

In the instant case, respondent sheriff collected the amounts of P1,350.00

At the outset, the Court stresses that an anonymous complaint is always received
and P1,650.00 from the plaintiff Rural Bank of Guihulngan, Negros Oriental, as
with great caution, originating as it does from an unknown author. However, a
service fees for the summons. The records are bereft of any indication that he
complaint of such sort does not always justify its outright dismissal for being baseless
obtained court approval for the estimated expenses nor does it show that the amounts
involved were deposited with the Clerk of Court. In fact, the evidence (Annexes "A"
and "B") furnished by complainant and which were admitted by respondent in his
comment, point out that the total amount of P3,000.00 was personally asked by
respondent and was directly received by him.
The respondent Sheriff was authorized to collect the amount of P1,380.00 for serving
summonses to a total of 23 defendants. There was a difference of P1,620.00, the
amount in excess of the former. The glaring fact then is that the respondent asked for
the amount of P3,000.00 not as lawful fees alone, but as a consideration for the
performance of his duty. Any portion of the amount in excess of the lawful fees
allowed by the Rules of Court is an unlawful exaction, which makes the respondent
liable for grave misconduct and gross dishonesty.20
Contrary to respondent's contention, his acts and omissions are in patent violation of
law. They disturb the ethics of public life and vitiate the integrity of the court personnel
as well as the court itself. Public service requires utmost integrity and strictest
discipline. A public servant must exhibit at all times the highest sense of honesty and
integrity.21 This yardstick has been imprinted in no less than the Constitution itself,
under Section 1 of Article XI:
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."
The nature and responsibilities of public officers enshrined in the Constitution and oft-
repeated in case law are not mere rhetorical words, not to be taken as idealistic
sentiments but as working standards and attainable goals that should be matched
with actual deeds.22 Time and again, this Court has stressed that the conduct and
behavior of everyone connected with an office charged with the dispensation of
justice, from the presiding judge to the lowliest clerk, should be circumscribed with the
heavy burden of responsibility. They must, at all times, not only observe propriety and
decorum; they must also be above suspicion.23 Every official and employee of the
Judiciary should be an example of integrity, uprightness and honesty. 24
office charged with the dispensation of justice, from the presiding judge to the lowest
clerk, is tasked with a heavy burden of responsibility. Their conduct, at all times, must
not only be characterized by propriety and decorum but also above suspicion. 29 Good
faith on the part of the respondent Sheriff, or lack of it, in proceeding to properly
execute his mandate would be of no moment, for he is chargeable with the knowledge
that being an officer of the court tasked therefor, it behooves him to make due
compliances.30
What is very disconcerting in this case is the fact that the respondent sheriff seems to
have made a habit of ignoring the aforementioned rules. By his own admission, he
was "given more than the amount complained of by the anonymous complainant" in
other cases, as evidenced by the certification/acknowledgment receipt31 duly attached
to his motion to dismiss. The respondent Sheriff even alleged that Atty. Jonathan L.
Eleco, the lawyer who executed the said document, "is conversant as to the
reasonable amount a Sheriff [receives] to defray all his expenses," 32 being a former
Clerk of Court himself.
The respondent's actuations constitute an erroneous practice that should be
eradicated. The tenacity with which the respondent insists on the correctness of his
conduct should be checked. Every officer or employee in the Judiciary is duty-bound
to obey the orders and processes of the Court without the least delay, and to
exercise, at all times, a high degree of professionalism in the performance of his
duties.33The respondent Sheriff failed miserably in this wise.
WHEREFORE, respondent Pershing T. Yared is found GUILTY of gross dereliction of
duty and is hereby FINED Five Thousand Pesos (P5,000.00). He is, likewise,
STERNLY WARNED that a repetition of the same or similar act shall be dealt with
more severely.
SO ORDERED.

While the Investigating Judge opined that the amounts asked by respondent may be
considered reasonable under the circumstances, the fact that the required procedure
was not followed cannot be ignored. This Court has also ruled that a sheriff's
repeated demands for sums of money to defray expenses without court approval
constitutes grave misconduct.25 Sheriffs cannot receive gratuities and voluntary
payments from parties in the course of the performance of their duties. The
respondent's failure to faithfully comply with the provisions of Rule 141 of the Rules of
Court constitutes dereliction of duty and negligence, which warrants the imposition of
disciplinary measures.26

It must be stressed that sheriffs play an important role in the administration of justice,
and as agents of the law, high standards are expected of them. 27 Being ranking
officers of the court and agents of the law, they must discharge their duties with great
care and diligence.28 It is well to remind all persons serving the Government through
its Judicial Arm that the conduct and behavior of every person connected with an
G.R. No. 152295 July 9, 2002
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE
ATANGAN, RONALD ATANGAN and CLARIZA DECENA, and OTHER YOUTH OF
THE LAND SIMILARLY SITUATED, petitioners,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, DEPARTMENT OF BUDGET AND MANAGEMENT, EXECUTIVE
SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR FRANKLIN DRILON
in his capacity as Senate President and SENATOR AQUILINO PIMENTEL in his
capacity as Minority Leader of the Senate of the Philippines, CONGRESSMAN
JOSE DE VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L.
SYJOCO in his capacity as Chairman of the Committee on Suffrage and
Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II in his capacity as
Chairman of the Committee on Local Government of the House of
Representatives, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN NG
MGA SANGGUNIANG KABATAAN, AND ALL THEIR AGENTS AND
REPRESENTATIVES, respondents.
CARPIO, J.:
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order or preliminary injunction. The petition seeks to prevent the
postponement of the Sangguniang Kabataan ("SK" for brevity) elections originally
scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the
age requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayer's and class suit,
on their own behalf and on behalf of other youths similarly situated. Petitioners claim
that they are in danger of being disqualified to vote and be voted for in the SK
elections should the SK elections on May 6, 2002 be postponed to a later date. Under
the Local Government Code of 1991 (R.A. No. 7160), membership in the SK is limited
to youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents "connived, confederated and conspired" to
postpone the May 6, 2002 SK elections and to lower the membership age in the SK to
at least 15 but less than 18 years of age. Petitioners assail the alleged conspiracy
because youths at least 18 but not more than 21 years old will be "summarily and
unduly dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly
disassociated and obnoxiously disqualified from the SK organization."1
Thus, petitioners pray for the issuance of a temporary restraining order or preliminary
injunction -
"a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents' issuances, orders and actions
and the like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections
set by the present law and in accordance with Comelec Resolutions No.
4713 and 4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever
reason, there must be a definite date for said elections, for example, July 15,
2002, and the present SK membership, except those incumbent SK officers
who were elected on May 6, 1996, shall be allowed to run for any SK
elective position even if they are more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK
in every sanggunian and the NYC to vacate their post after the barangay
elections."2
The Facts
The SK is a youth organization originally established by Presidential Decree No. 684
as the Kabataang Barangay("KB" for brevity). The KB was composed of all barangay
residents who were less than 18 years old, without specifying the minimum age. The
KB was organized to provide its members with the opportunity to express their views
and opinions on issues of transcendental importance.3
The Local Government Code of 1991 renamed the KB to SK and limited SK
membership to those youths "at least 15 but not more than 21 years of age." 4 The SK
remains as a youth organization in every barangay tasked to initiate programs "to
enhance the social, political, economic, cultural, intellectual, moral, spiritual, and
physical development of the youth."5 The SK in every barangay is composed of a
chairperson and seven members, all elected by the Katipunan ng Kabataan.
The Katipunan ng Kabataan in every barangay is composed of all citizens actually
residing in the barangay for at least six months and who meet the membership age
requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK
elections to the first Monday of May of 1996 and every three years thereafter. RA No.
7808 mandated the Comelec to supervise the conduct of the SK elections under rules
the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001
issued Resolution Nos. 47136 and 47147 to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros ("Montesclaros" for
brevity) sent a letter8 to the Comelec, demanding that the SK elections be held as
scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her
letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo ("Chairman Benipayo" for brevity), then
Comelec Chairman, wrote identical letters to the Speaker of the House 9 and the
Senate President10 about the status of pending bills on the SK and Barangay
elections. In his letters, the Comelec Chairman intimated that it was "operationally
very difficult" to hold both elections simultaneously in May 2002. Instead, the Comelec
Chairman expressed support for the bill of Senator Franklin Drilon that proposed to
hold the Barangay elections in May 2002 and postpone the SK elections to November
2002.
Ten days lapsed without the Comelec responding to the letter of Montesclaros.
Subsequently, petitioners received a copy of Comelec En Banc Resolution No.
476311 dated February 5, 2002 recommending to Congress the postponement of the
SK elections to November 2002 but holding the Barangay elections in May 2002 as
scheduled.12
On March 6, 2002, the Senate and the House of Representatives passed their
respective bills postponing the SK elections. On March 11, 2002, the Bicameral
Conference Committee ("Bicameral Committee" for brevity) of the Senate and the
House came out with a Report13 recommending approval of the reconciled bill
consolidating Senate Bill No. 205014 and House Bill No. 4456.15 The Bicameral
Committee's consolidated bill reset the SK and Barangay elections to July 15, 2002
and lowered the membership age in the SK to at least 15 but not more than 18 years
of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committee's consolidated bill
and on March 13, 2002, the House of Representatives approved the same. The
President signed the approved bill into law on March 19, 2002.
The Issues
Petitioners16 raise the following grounds in support of their petition:
"I.
RESPONDENTS ACTED WHIMSICALLY, ILLEG ALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS
WHO ARE 18 BUT NOT LESS17 (SIC) THAN 21 YEARS OLD COMPOSED
OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK
ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF
THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON
THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF
THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF
LAW AND CONSTITUTION."18
The Court's Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have
transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were
not held as scheduled.
2. Congress enacted RA No. 916419 which provides that voters and
candidates for the SK elections must be "at least 15 but less than 18 years
of age on the day of the election."20 RA No. 9164 also provides that there
shall be a synchronized SK and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations
for the conduct of the July 15, 2002 synchronized SK and Barangay
elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the May
6, 2002 SK elections disenfranchises them, preventing them from voting and being
voted for in the SK elections. Petitioners' theory is that if the SK elections were
postponed to a date later than May 6, 2002, the postponement would disqualify from
SK membership youths who will turn 21 years old between May 6, 2002 and the date
of the new SK elections. Petitioners claim that a reduction in the SK membership age
to 15 but less than 18 years of age from the then membership age of 15 but not more
than 21 years of age would disqualify about seven million youths. The public
respondents' failure to hold the elections on May 6, 2002 would prejudice petitioners
and other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to hold the
SK elections on May 6, 2002 and should it be postponed, the SK elections should be
held not later than July 15, 2002; (2) prevent public respondents from passing laws
and issuing resolutions and orders that would lower the membership age in the SK;
and (3) compel public respondents to allow petitioners and those who have turned
more than 21 years old on May 6, 2002 to participate in any re-scheduled SK
elections.
The Court's power of judicial review may be exercised in constitutional cases only if
all the following requisites are complied with, namely: (1) the existence of an actual
and appropriate case or controversy; (2) a personal and substantial interest of the
party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the
case.21
In the instant case, there is no actual controversy requiring the exercise of the power
of judicial review. While seeking to prevent a postponement of the May 6, 2002 SK
elections, petitioners are nevertheless amenable to a resetting of the SK elections to
any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July
15, 2002, a date acceptable to petitioners. With respect to the date of the SK
elections, there is therefore no actual controversy requiring judicial intervention.
Petitioners' prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a law. A
proposed bill creates no right and imposes no duty legally enforceable by the Court. A
proposed bill, having no legal effect, violates no constitutional right or duty. The Court
has no power to declare a proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a proposed act of
Congress. The power of judicial review cannot be exercised in vacuo.22 The second
paragraph of Section 1, Article VIII of the Constitution states –
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." (Emphasis supplied)
Thus, there can be no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing any
law, or from setting into motion the legislative mill according to its internal rules. Thus,
the following acts of Congress in the exercise of its legislative powers are not subject
to judicial restraint: the filing of bills by members of Congress, the approval of bills by
each chamber of Congress, the reconciliation by the Bicameral Committee of
approved bills, and the eventual approval into law of the reconciled bills by each
chamber of Congress. Absent a clear violation of specific constitutional limitations or
of constitutional rights of private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress. 23
The Court has also no power to dictate to Congress the object or subject of bills that
Congress should enact into law. The judicial power to review the constitutionality of
laws does not include the power to prescribe to Congress what laws to enact. The
Court has no power to compel Congress by mandamus to enact a law allowing
petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK
elections. To do so would destroy the delicate system of checks and balances finely
crafted by the Constitution for the three co-equal, coordinate and independent
branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684,
the original charter of the SK, which fixed the maximum age for membership in the SK
to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government
Code of 1991. Every law passed by Congress is always subject to amendment or
repeal by Congress. The Court cannot restrain Congress from amending or repealing
laws, for the power to make laws includes the power to change the laws. 24
The Court cannot also direct the Comelec to allow over-aged voters to vote or be
voted for in an election that is limited under RA No. 9164 to youths at least 15 but less
than 18 years old. A law is needed to allow all those who have turned more than 21
years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections.
Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK members,
and cannot participate in the July 15, 2002 SK elections. Congress will have to decide
whether to enact an amendatory law. Petitioners' remedy is legislation, not judicial
intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A party
must show that he has been, or is about to be denied some personal right or privilege
to which he is lawfully entitled.25 A party must also show that he has a real interest in
the suit. By "real interest" is meant a present substantial interest, as distinguished
from a mere expectancy or future, contingent, subordinate, or inconsequential
interest.26
In the instant case, petitioners seek to enforce a right originally conferred by law on
those who were at least 15 but not more than 21 years old. Now, with the passage of
RA No. 9164, this right is limited to those who on the date of the SK elections are at
least 15 but less than 18 years old. The new law restricts membership in the SK to
this specific age group. Not falling within this classification, petitioners have ceased to
be members of the SK and are no longer qualified to participate in the July 15, 2002
SK elections. Plainly, petitioners no longer have a personal and substantial interest in
the SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed this
petition, RA No. 9164, which reset the SK elections and reduced the age requirement
for SK membership, was not yet enacted into law. After the passage of RA No. 9164,
petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional.
To grant petitioners' prayer to be allowed to vote and be voted for in the July 15, 2002
SK elections necessitates assailing the constitutionality of RA No. 9164. This,
petitioners have not done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action and adequately argued. 27
The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is
their claim that SK membership is a "property right within the meaning of the
Constitution."28 Since certain public offices are "reserved" for SK officers, petitioners
also claim a constitutionally protected "opportunity" to occupy these public offices. In
petitioners' own words, they and others similarly situated stand to "lose their
opportunity to work in the government positions reserved for SK members or
officers."29 Under the Local Government Code of 1991, the president of the federation
of SK organizations in a municipality, city or province is an ex-officio member of the
municipal council, city council or provincial board, respectively. 30 The chairperson of
the SK in the barangay is an ex-officio member of the Sangguniang Barangay.31 The
president of the national federation of SK organizations is an ex-officio member of the
National Youth Commission, with rank of a Department Assistant Secretary. 32
Congress exercises the power to prescribe the qualifications for SK membership. One
who is no longer qualified because of an amendment in the law cannot complain of
being deprived of a proprietary right to SK membership. Only those who qualify as SK
members can contest, based on a statutory right, any act disqualifying them from SK
membership or from voting in the SK elections. SK membership is not a property right
protected by the Constitution because it is a mere statutory right conferred by law.
Congress may amend at any time the law to change or even withdraw the statutory
right.
A public office is not a property right. As the Constitution expressly states, a "[P]ublic
office is a public trust."33 No one has a vested right to any public office, much less a
vested right to an expectancy of holding a public office. In Cornejo v.
Gabriel,34 decided in 1920, the Court already ruled:
"Again, for this petition to come under the due process of law prohibition, it
would be necessary to consider an office a "property." It is, however, well
settled x x x that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or
agency. x x x The basic idea of the government x x x is that of a popular
representative government, the officers being mere agents and not rulers of
the people, one where no one man or set of men has a proprietary or
contractual right to an office, but where every officer accepts office pursuant
to the provisions of the law and holds the office as a trust for the people he
represents." (Emphasis supplied)
Petitioners, who apparently desire to hold public office, should realize from the very
start that no one has a proprietary right to public office. While the law makes an SK
officer an ex-officio member of a local government legislative council, the law does
not confer on petitioners a proprietary right or even a proprietary expectancy to sit in
local legislative councils. The constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State policy directing "equal
access to opportunities for public service"35 cannot bestow on petitioners a proprietary
right to SK membership or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youth's involvement in public
affairs,36 this policy refers to those who belong to the class of people defined as the
youth. Congress has the power to define who are the youth qualified to join the SK,
which itself is a creation of Congress. Those who do not qualify because they are past
the age group defined as the youth cannot insist on being part of the youth. In
government service, once an employee reaches mandatory retirement age, he cannot
invoke any property right to cling to his office. In the same manner, since petitioners
are now past the maximum age for membership in the SK, they cannot invoke any
property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes the
qualifications of candidates and voters for the SK elections. This law also fixes the
date of the SK elections. Petitioners are not even assailing the constitutionality of RA
No. 9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to
the July 15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse of
discretion in recommending to Congress the postponement of the SK elections. The
very evidence relied upon by petitioners contradict their allegation of illegality. The
evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated
February 5, 2002 that recommended the postponement of the SK elections to 2003;
(2) the letter of then Comelec Chairman Benipayo addressed to the Speaker of the
House of Representatives and the President of the Senate; and (3) the Conference
Committee Report consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall"37 and to "recommend to Congress effective measures to minimize election
spending."38 The Comelec's acts enjoy the presumption of regularity in the
performance of official duties.39 These acts cannot constitute proof, as claimed by
petitioners, that there "exists a connivance and conspiracy (among) respondents in
contravention of the present law." As the Court held in Pangkat Laguna v.
Comelec,40 the "Comelec, as the government agency tasked with the enforcement
and administration of elections laws, is entitled to the presumption of regularity of
official acts with respect to the elections."
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. Petitioners
failed to prove that the Comelec committed grave abuse of discretion in
recommending to Congress the postponement of the May 6, 2002 SK elections. The
evidence cited by petitioners even establish that the Comelec has demonstrated an
earnest effort to address the practical problems in holding the SK elections on May 6,
2002. The presumption remains that the decision of the Comelec to recommend to
Congress the postponement of the elections was made in good faith in the regular
course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment that
is patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law.41 Public respondents having acted strictly pursuant to
their constitutional powers and duties, we find no grave abuse of discretion in their
assailed acts.
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK officers to perpetuate themselves in power, depriving other youths of
the opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK
officials can remain in office only until their successors have been elected or qualified.
On July 15, 2002, when the SK elections are held, the hold-over period expires and
all incumbent SK officials automatically cease to hold their SK offices and their ex-
officio public offices.

In sum, petitioners have no personal and substantial interest in maintaining this suit.
This petition presents no actual justiciable controversy. Petitioners do not cite any
provision of law that is alleged to be unconstitutional. Lastly, we find no grave abuse
of discretion on the part of public respondents.

WHEREFORE, the petition is DISMISSED for utter lack of merit.

SO ORDERED.
G.R. No. 125249 February 7, 1997
JIMMY S. DE CASTRO, petitioner,
vs.
THE COMMISSION ON ELECTIONS and AMANDO A. MEDRANO, respondent
HERMOSISIMA, JR., J.:
Before us is a petition for certiorari raising twin issues as regards the effect of the
contestant's death in an election protest: Is said contest a personal action
extinguished upon the death of the real party in interest? If not, what is the mandatory
period within which to effectuate the substitution of parties?
The following antecedent facts have been culled from the pleadings and are not in
dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995
elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the same
municipality.
On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla, filed an
election protest1 before the Regional Trial Court of Pinamalayan, Oriental Mindoro.2
During the pendency of said contest, Jamilla died.3 Four days after such death or on
December 19, 1995, the trial court dismissed the election protest ruling as it did that
"[a]s this case is personal, the death of the protestant extinguishes the case itself.
The issue or issues brought out in this protest have become moot and academic".4
On January 9, 1995, private respondent learned about the dismissal of the protest
from one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's counsel, was the one
who informed the trial court of his client's demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For
Intervention and/or Substitution with Motion for Reconsideration). 5 Opposition thereto
was filed by petitioner on January 30, 1996.6
In an Order dated February 14, 1996,7 the trial court denied private respondent's
Omnibus Petition/Motion and stubbornly held that an election protest being personal
to the protestant, is ipso facto terminated by the latter's death.
Unable to agree with the trial court's dismissal of the election protest., private
respondent filed a petition for certiorariand mandamus before the Commission on
Elections (COMELEC); private respondent mainly assailed the trial court orders as
having been issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus.8 It ruled that an election
contest involves both the private interests of the rival candidates and the public
interest in the final determination of the real choice of the electorate, and for this
reason, an election contest necessarily survives the death of the protestant or the
protestee.
We agree.
It is true that a public office is personal to the public officer and is not a property
transmissible to his heirs upon death.9 Thus, applying the doctrine of actio personalis
moritur cum persona, upon the death of the incumbent, no heir of his may be allowed
to continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public officer, an
election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue
the protest proceedings.
An election contest, after all, involves not merely conflicting private aspirations but is
imbued with paramount public interests. As we have held in the case of Vda. de De
Mesa v. Mencias: 10
. . . It is axiomatic that an election contest, involving as it does not
only the adjudication and settlement of the private interests of the
rival candidates but also the paramount need of dispelling once and
for all the uncertainty that beclouds the real choice of the electorate
with respect to who shall discharge the prerogatives of the offices
within their gift, is a proceeding imbued with public interest which
raises it onto a plane over and above ordinary civil actions. For this
reason, broad perspectives of public policy impose upon courts the
imperative duty to ascertain by all means within their command who
is the real candidate elected in as expeditious a manner as
possible, without being fettered by technicalities and procedural
barriers to the end that the will of the people may not be frustrated
(Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960; Reforma
vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably
intertwined are the interests of the contestants and those of the
public that there can be no gainsaying the logic of the proposition
that even the voluntary cessation in office of the protestee not only
does not ipso facto divest him of the character of an adversary in
the contest inasmuch as he retains a party interest to keep his
political opponent out of the office and maintain therein his
successor, but also does not in any manner impair or detract from
the jurisdiction of the court to pursue the proceeding to its final
conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597;
Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
 Upon the same principle, the death of the protestee De Mesa did Costs against petitioner.
not abate the proceedings in the election protest filed against him,
and it may stated as a rule that an election contest survives and SO ORDERED.
must be prosecuted to final judgment despite the death of the
protestee. 11

The death of the protestant, as in this case, neither constitutes a ground for the
dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election
contest. Apropos is the following pronouncement of this court in the case
of Lomugdang v. Javier: 12

Determination of what candidate has been in fact elected is a

matter clothed with public interest, wherefore, public policy
demands that an election contest, duly commenced, be not abated
by the death of the contestant. We have squarely so rule in Sibulo
Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 29,
1966, in the same spirit that led this Court to hold that the
ineligibility of the protestant is not a defense (Caesar vs. Garrido,
53 Phil. 57), and that the protestee's cessation in office is not a
ground for the dismissal of the contest nor detract the Courts
jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595;
Salcedo vs. Hernandez, 62 Phil. 584). 13

The asseveration of petitioner that private respondent is not a real party in interest
entitled to be substituted in the election protest in place of the late Jamilla, is utterly
without legal basis. Categorical was our ruling in Vda. de Mesaand Lomugdang that:

. . . the Vice Mayor elect has the status of a real party in interest in
the continuation of the proceedings and is entitled to intervene
therein. For if the protest succeeds and the Frotestee is unseated,
the Vice-Mayor succeeds to the office of Mayor that becomes
vacant if the one duly elected can not assume the post. 14

To finally dispose of this case, we rule that the filing by private respondent of his
Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from
December 19, 1995 when Jamilla's counsel informed the trial court of Jamilla's death,
was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the
Rules of Court, though not generally applicable to election cases, may however be
applied by analogy or in a suppletory character, 15 private respondent was correct to
rely thereon.

The above jurisprudence is not ancient; in fact these legal moorings have been
recently reiterated in the 1991 case of De la Victoria vs. COMELEC. 16 If only
petitioner's diligence in updating himself with case law is as spirited as his persistence
in pursuing his legal asseverations up to the highest court of the land, no doubt further
derailment of the election protest proceedings could have been avoided.

WHEREFORE, premises considered, the instant petition for certiorari is hereby

DISMISSED
G.R. No. 185740 July 23, 2013
THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by
GOVERNOR JESUS O. TYPOCO, JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.
DECISION
BRION, J.:
We resolve the Provincial Government of Camarines Norte's (petitioner) petition for
review on certiorari1 assailing the Decision2 dated June 25, 2008 and the
Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-G.R. SP No.
97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines
Norte’s provincial administrator, or to an equivalent position.
Factual Antecedents
Gonzales was appointed as the provincial administrator of the Province of Camarines
Norte by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on
a permanent capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales
a memorandum directing her to explain in writing why no administrative charges
should be filed against her for gross insubordination/gross discourtesy in the course
of official duties, and conduct grossly prejudicial to the best interest of the service; this
was later on captioned as Administrative Case No. 001. After Gonzales submitted her
comment, an Ad Hoc Investigation Committee found her guilty of the charges against
her, and recommended to Governor Pimentel that she be held administratively
liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation
Committee’s recommendation and dismissed Gonzales.5
Proceedings before the Civil Service Commission
Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission
(CSC). The CSC issued Resolution No. 0014186 modifying Governor Pimentel’s
decision, finding Gonzales guilty of insubordination and suspending her for six
months. This decision was appealed by Governor Pimentel, which the CSC denied in
its Resolution No. 001952.7
Gonzales then filed a motion for execution and clarification of Resolution No. 001418,
in which she claimed that she had already served her six-month suspension and
asked to be reinstated. The CSC issued Resolution No. 002245, 8which directed
Gonzales’ reinstatement.
Governor Pimentel reinstated Gonzales as provincial administrator on October 12,
2000, but terminated her services the next day for lack of confidence. He then wrote a
letter9 to the CSC reporting his compliance with its order, and Gonzales’ subsequent
dismissal as a confidential employee. In his letter, Governor Pimentel cited Resolution
No. 0001158,10 where the CSC ruled that the provincial administrator position is
highly confidential and is coterminous in nature.
The CSC responded through Resolution No. 030008,11 which again directed
Gonzales’ reinstatement as provincial administrator. It clarified that while the Local
Government Code of 1991 (Republic Act No. RA 7160) made the provincial
administrator position coterminous and highly confidential in nature, this conversion
cannot operate to prejudice officials who were already issued permanent
appointments as administrators prior to the new law’s effectivity. According to the
CSC, Gonzales has acquired a vested right to her permanent appointment as
provincial administrator and is entitled to continue holding this office despite its
subsequent classification as a coterminous position. The conversion of the provincial
administrator position from a career to a non-career service should not jeopardize
Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent
appointee, Gonzales may only be removed for cause, after due notice and hearing.
Loss of trust and confidence is not among the grounds for a permanent appointee’s
dismissal or discipline under existing laws.
In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor
Jesus O. Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate
her. The CSC responded with Resolution No. 061988,13 which ordered Gonzales’
reinstatement to the provincial administrator position, or to an equivalent
position.Thus, the petitioner, through Governor Typoco, filed a petition for review
before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution
No. 061988.
The Appellate Court’s Ruling
The CA supported the CSC’s ruling that reinstated Gonzales as provincial
administrator or to an equivalent position.14
Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee
acquires a legal right to his position once he assumes a position in the civil service
under a completed appointment. This legal right is protected both by statute and the
Constitution, and he cannot be removed from office without cause and previous notice
and hearing. Appointees cannot be removed at the mere will of those vested with the
power of removal, or without any cause.
The CA then enumerated the list of valid causes for a public officer’s removal under
Section 46,16 Book V, Title I, Subtitle A of the Revised Administrative Code
(Administrative Code), and noted that lack of confidence was not in the list. Thus, the
CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated
her security of tenure, and that she has the right to be reinstated with payment of
backwages.
The CA further held that Gonzales’ dismissal was illegal because it was done without
due process. The proceedings under Administrative Case No. 001 cannot be the
basis for complying with the requirements of due process because they are separate
and distinct from the proceedings in the present controversy. Thus, Gonzales was
illegally terminated when she was dismissed for lack of confidence, without any
hearing, the day after she was reinstated.
Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s
decision, has long been final and executory. The petitioner did not file any petition for
reconsideration against Resolution No. 002245, and hence, it is no longer alterable.
The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied
in a Resolution18 dated December 2, 2008.
The Present Petition
In its present petition for review on certiorari, the petitioner argues that the provincial
administrator position has been converted into a highly confidential, coterminous
position by RA 7160. Hence, Gonzales no longer enjoyed security of tenure to the
position she held prior to RA 7160’s enactment.
In her Comment19 and Memorandum,20 Gonzales maintained that the provincial
administrator remained a career service position. Section 7 21 of Presidential Decree
No. 807, which was one of the bases of the Court in Laurel V v. Civil Service
Commission22 to declare the provincial administrator as a career service position, is a
verbatim copy of Section 7,23 Chapter 2 of the Administrative Code. This
classification, established by law and jurisprudence, cannot be altered by the mere
implementing rules and regulations of RA 7160. And assuming arguendo that the
provincial administrator position has indeed become a primarily confidential position,
this reclassification should not apply retroactively to Gonzales’ appointment on a
permanent capacity prior to RA 7160’s effectivity.
Issues
The parties’ arguments, properly joined, present to us the following issues:
1) Whether Congress has re-classified the provincial administrator position
from a career service to a primarily confidential, non-career service position;
and
2) Whether Gonzales has security of tenure over her position as provincial
administrator of the Province of Camarines Norte.
The Court’s Ruling
We find the petition meritorious.
Congress has reclassified the provincial administrator position as a primarily
confidential, non-career position
We support the CSC’s conclusion that the provincial administrator position has been
classified into a primarily confidential, non-career position when Congress, through
RA 7160, made substantial changes to it. First, prior to RA 7160, Batas Pambansa
Blg. 337, the old Local Government Code (LGC), did not include a provincial
administrator position among the listing of mandatory provincial officials,24 but
empowered the Sangguniang Panlalawigan to create such other offices as might then
be necessary to carry out the purposes of the provincial government.25 RA 7160
made the position mandatory for every province.26 Thus, the creation of the provincial
administrator position under the old LGC used to be a prerogative of the Sangguniang
Panlalawigan.
Second, in introducing the mandatory provincial administrator position, RA 7160 also
amended the qualifications for the provincial administrator position. While Section
48027 of RA 7160 retained the requirement of civil service eligibility for a provincial
administrator, together with the educational requirements, it shortened the six-year
work experience requirement to five years.28 It also mandated the additional
requirements of residence in the local government concerned, and imposed a good
moral character requirement.
Third, RA 7160 made the provincial administrator position coterminous with its
appointing authority, reclassifying it as a non-career service position that is primarily
confidential.
Before RA 7160 took effect, Laurel classified the provincial administrator position as
an open career position which required qualification in an appropriate examination
prior to appointment. Laurel placed the provincial administrator position under the
second major level of positions in the career service under Section 7 of Presidential
Decree No. 807. This provision reads:
Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service appointment to which requires
examinations shall be grouped into three major levels as follows:
xxxx
2. The second level shall include professional, technical, and scientific positions which
involve professional, technical, or scientific work in a non-supervisory or supervisory
capacity requiring at least four years of college work up to Division Chief level.
Section 480 of RA 7160 made the provincial administrator’s functions closely related
to the prevailing provincial administration by identifying the incumbent with the
provincial governor to ensure the alignment of the governor’s direction for the
province with what the provincial administrator would implement. In contrast with the
general direction provided by the provincial governor under the Manual of Position
Descriptions cited in Laurel, Section 480(b) of RA 7160 now mandates constant
interaction between the provincial administrator and the provincial governor, to wit:
(b) The administrator shall take charge of the office of the administrator and shall:
 (1) Develop plans and strategies and upon approval thereof by the governor
or mayor, as the case may be, implement the same particularly those which
have to do with the management and administration-related programs and
projects which the governor or mayor is empowered to implement and which
the sanggunian is empowered to provide for under this Code;
(2) In addition to the foregoing duties and functions, the administrator shall:
(i) Assist in the coordination of the work of all the officials of the local government unit,
under the supervision, direction, and control of the governor or mayor, and for this
purpose, he may convene the chiefs of offices and other officials of the local
government unit;
xxxx
(4) Recommend to the sanggunian and advise the governor and mayor, as the case
may be, on all other matters relative to the management and administration of the
local government unit. [emphases and italics ours]
As the CSC correctly noted in Resolution No. 0001158,29 the administrator position
demands a close intimate relationship with the office of the governor (its appointing
authority) to effectively develop, implement and administer the different programs of
the province. The administrator’s functions are to recommend to the Sanggunian and
to advise the governor on all matters regarding the management and administration of
the province, thus requiring that its occupant enjoy the governor’s full trust and
confidence.
To emphasize the close relations that the provincial administrators’ functions have
with the office of the governor, RA 7160 even made the provincial administrator
position coterminous with its appointing authority.30 This provision, along with the
interrelations between the provincial administrator and governor under Section 480,
renders clear the intent of Congress to make the provincial administrator position
primarily confidential under the non-career service category of the civil service.
Congress’ reclassification of the provincial administrator position in RA 7160 is a valid
exercise of legislative power that does not violate Gonzales’ security of tenure
Having established that Congress has changed the nature of the provincial
administrator position to a primarily confidential employee, the next question to
address would be its impact on Gonzales’ security of tenure. According to the
petitioner, Gonzales lost her security of tenure when the provincial administrator
position became a primarily confidential position. Gonzales, on the other hand,
retorted that the conversion of the position should not be retroactively applied to her,
as she is a permanent appointee. Both the CA and the CSC ruled in favor of the
latter, and gave premium to Gonzales’ original permanent appointment under the old
LGC. They posit that Gonzales acquired a vested legal right over her position from
the moment she assumed her duties as provincial administrator. Thus, she cannot be
removed from office except for cause and after due hearing; otherwise such removal
would amount to a violation of her security of tenure.
The arguments presented by the parties and ruled upon by the CA reflect a
conceptual entanglement between the nature of the position and an employee’s right
to hold a position. These two concepts are different. The nature of a position may
change by law according to the dictates of Congress. The right to hold a position, on
the other hand, is a right that enjoys constitutional and statutory guarantee, but may
itself change according to the nature of the position.
Congress has the power and prerogative to introduce substantial changes in the
provincial administrator position and to reclassify it as a primarily confidential, non-
career service position. Flowing from the legislative power to create public offices is
the power to abolish and modify them to meet the demands of society; 31 Congress
can change the qualifications for and shorten the term of existing statutory offices.
When done in good faith, these acts would not violate a public officer’s security of
tenure, even if they result in his removal from office or the shortening of his
term.32 Modifications in public office, such as changes in qualifications or shortening
of its tenure, are made in good faith so long as they are aimed at the office and not at
the incumbent.33
In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a
law modifying the offices in the Board of Dental Examiners. The new law, RA 546,
raised the qualifications for the board members, and provided for a different
appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were
incumbent board members at the time RA 546 took effect, filed a special civil action
for quo warranto against their replacements, arguing that their term of office under the
old law had not yet expired, and neither had they abandoned or been removed from
office for cause. We dismissed their petition, and held that Congress may, by law,
terminate the term of a public office at any time and even while it is occupied by the
incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio were removed for cause or
had abandoned their office is immaterial.
More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M.
Dimayuga, a permanent appointee to the Executive Director II position, which was not
part of the career executive service at the time of her appointment. During her
incumbency, the CSC, by authority granted under Presidential Decree No. 1,
classified the Executive Director II position to be within the career executive service.
Since Dimayuga was not a career executive service officer, her initially permanent
appointment to the position became temporary; thus, she could be removed from
office at any time.
In the current case, Congress, through RA 7160, did not abolish the provincial
administrator position but significantly modified many of its aspects. It is now a
primarily confidential position under the non-career service tranche of the civil service.
This change could not have been aimed at prejudicing Gonzales, as she was not the
only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this
change was part of the reform measures that RA 7160 introduced to further empower
local governments and decentralize the delivery of public service. Section 3(b) of RA
7160 provides as one of its operative principles that:
(b) There shall be established in every local government unit an accountable,
efficient, and dynamic organizational structure and operating mechanism that will
meet the priority needs and service requirements of its communities.
Thus, Gonzales’ permanent appointment as provincial administrator prior to the
enactment of RA 7160 is immaterial to her removal as provincial administrator. For
purposes of determining whether Gonzales’ termination violated her right to security
of tenure, the nature of the position she occupied at the time of her removal should be
considered, and not merely the nature of her appointment at the time she entered
government service.
In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view
that security of tenure protects the permanent appointment of a public officer, despite
subsequent changes in the nature of his position.
Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration
that "a permanent employee remains a permanent employee unless he is validly
terminated," and from there attempts to draw an analogy between Gabriel and the
case at hand.
The very first sentence of Gabriel spells out its vast difference from the present case.
The sole and main issue in Gabriel is whether backwages and other monetary
benefits could be awarded to an illegally dismissed government employee, who was
later ordered reinstated. From this sentence alone can be discerned that the issues
involved related to the consequences of illegal dismissal rather than to the dismissal
itself. Nowhere in Gabrielwas there any mention of a change in the nature of the
position held by the public officer involved.
Further, key factual differences make Gabriel inapplicable to the present case, even if
only by analogy: first, the public officer in Gabriel received a Memorandum stating that
he would be appointed as Transportation District Supervisor III under their office
reorganization. Second, the Court in Gabriel clearly pointed out that the reason for his
eventual appointment as a casual employee, which led to his termination from
service, was due to a pending protest he filed before the CSC – indicating that there
was no ground for him to not receive the appointment earlier promised. In contrast,
the issue of Gonzales is whether the appointing authority’s lack of trust and
confidence in the appointee was sufficient cause for the termination of employment of
a primarily confidential employee. And third, there was a change in the position held
by the public officer in Gabriel. He was a permanent employee who was extended a
different appointment, which was casual in nature, because of a protest that he earlier
filed. In contrast, the current case involves a public officer who held the same position
whose nature changed because of the passage of RA 7160.
The dissent also quotes the penultimate paragraph of Civil Service Commission v.
Javier37 to support its contention that permanent appointees could expect protection
for their tenure and appointments in the event that the Court determines that the
position is actually confidential in nature:
The Court is aware that this decision has repercussions on the tenure of other
corporate secretaries in various GOCCs. The officers likely assumed their positions
on permanent career status, expecting protection for their tenure and appointments,
but are now re-classified as primarily confidential appointees. Such concern is
unfounded, however, since the statutes themselves do not classify the position of
corporate secretary as permanent and career in nature. Moreover, there is no
absolute guarantee that it will not be classified as confidential when a dispute arises.
As earlier stated, the Court, by legal tradition, has the power to make a final
determination as to which positions in government are primarily confidential or
otherwise. In the light of the instant controversy, the Court's view is that the greater
public interest is served if the position of a corporate secretary is classified as
primarily confidential in nature.38
The quoted portion, however, even bolsters our theory. Read together with its
succeeding paragraph, the quoted portion in Civil Service Commission v.
Javier39 actually stands for the proposition that other corporate secretaries in
government-owned and –controlled corporations cannot expect protection for their
tenure and appointments upon the reclassification of their position to a primarily
confidential position. There, the Court emphasized that these officers cannot rely on
the statutes providing for their permanent appointments, if and when the Court
determines these to be primarily confidential. In the succeeding paragraph after the
portion quoted by the dissent, we even pointed out that there is no vested right to
public office, nor is public service a property right. Thus:
Moreover, it is a basic tenet in the country's constitutional system that "public office is
a public trust," and that there is no vested right in public office, nor an absolute right to
hold office. No proprietary title attaches to a public office, as public service is not a
property right. Excepting constitutional offices which provide for special immunity as
regards salary and tenure, no one can be said to have any vested right in an office.
The rule is that offices in government, except those created by the constitution, may
be abolished, altered, or created anytime by statute. And any issues on the
classification for a position in government may be brought to and determined by the
courts.40(emphases and italics ours)
Executive Order No. 503 does not grant Gonzales security of tenure in the provincial
administrator position on a permanent capacity
In extending security of tenure to Gonzales’ permanent appointment as provincial
administrator, the dissenting opinion cites as authority Executive Order No. (EO) 503
which provided certain safeguards against the termination of government employees
affected by the implementation of RA 7160. According to the dissenting opinion, EO
503 is an obvious indication of the executive department’s intent to protect and uphold
both the national government and the local government employees’ security of tenure.
It cites Section 2(a), paragraph 8 (providing for the tenure of an administrator) to
prove its point:
8. Incumbents of positions, namely administrator, legal officer, and information officer
declared by the Code as coterminous, who hold permanent appointments, shall
continue to enjoy their permanent status until they vacate their positions.
At first glance, EO 503 does seem to extend the provincial administrators’ security of
tenure in their permanent appointments even beyond the effectivity of RA 7160. EO
503, however, does not apply to employees of the local government affected by RA
7160’s enactment. The title of EO 503 clearly provides for its scope of application, to
wit:
Executive Order No. 503. Providing for the Rules and Regulations Implementing the
Transfer of Personnel and Assets, Liabilities and Records of National Government
Agencies whose Functions are to be Devolved to the Local Government Units and for
other Related Purposes. [underscore, italics and emphases ours]
A reading of EO 503’s whereas clauses confirms that it applies only to national
government employees whose functions are to be devolved to local governments:
WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code
of 1991, hereinafter referred to as the Code, transfers the responsibility for the
delivery of basic services and facilities from the national government agencies
(NGAs) concerned to the local government units (LGUs);
WHEREAS, the Code stipulated that the transfer of basic services and facilities shall
be accompanied by the transfer of the national personnel concerned and assets to
ensure continuity in the delivery of such services and facilities;
WHEREAS, responsive rules and regulations are needed to affect the required
transfer of national personnel concerned and assets to the LGUs. [underscores, italics
and emphases ours]
Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial
administrator. As explained earlier, the existence of the provincial administrator
position was a prerogative of the Sanggunian Panlalawigan, and was not even a
mandatory public office under the old LGC. It is clearly not a national government
position whose functions are to be devolved to the local governments.
The dissenting opinion, on the other hand, argues that EO 503 does not apply to
national government employees only. According to the dissent, the phrase "and for
related purposes" in EO 503’s title could encompass personnel not necessarily
employed by national government agencies but by local government units such as the
administrator, the legal officer and the information officer, as enumerated in Section
2(a), paragraph 8 thereof. This provision, according to the dissent, fills the crucial gap
left by RA 7160 which did not provide whether the term of an incumbent provincial
administrator would automatically become coterminous with that of the appointing
authority upon RA 7160’s effectivity.
This kind of construction effectively adds to EO 503’s object matters that it did not
explicitly provide for. The phrase "and for other related purposes" can only add to EO
503 matters related to the devolution of personnel, basic services and facilities to
local government units. The impact of the change in a local government position’s
nature is clearly different from the implementation of devolution and its ancillary
effects: the former involves a change in a local government position’s functions and
concept of tenure, while the latter involves (among other things) the transfer of
national government employees to local government units. This difference is
highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to
implement Section 17 of RA 7160. In contrast, the change in the nature of the
provincial administrator position may be gleaned from Section 480 of RA 7160.
Hence, by no stretch of reasonable construction can the phrase "and for other related
purposes" in EO 503’s title be understood to encompass the consequences of the
change in the local government position’s nature.
Furthermore, construing that the administrator position in Section 2(a), paragraph 8
pertains to city, municipal and/or provincial administrators would result in a legal
infirmity. EO 503 was issued pursuant to the President’s ordinance powers to provide
for rules that are general or permanent in character for the purpose of implementing
the President’s constitutional or statutory powers.41 Exercising her constitutional duty
to ensure that all laws are faithfully executed, then President Corazon Aquino issued
EO 503 to ensure the executive’s compliance with paragraph (i), Section 17 of RA
7160, which requires local government units to absorb the personnel of national
agencies whose functions shall be devolved to them.42 This is reflected in EO 503’s
title and whereas clauses, and its limited application as discussed earlier.
Thus, the dissenting opinion’s interpretation would result in the judicial recognition of
an act of the Executive usurping a legislative power. The grant of permanent status to
incumbent provincial administrators, despite the clear language and intent of RA 7160
to make the position coterminous, is an act outside the President’s legitimate powers.
The power to create, abolish and modify public offices is lodged with Congress. 43 The
President cannot, through an Executive Order, grant permanent status to incumbents,
when Congress by law has declared that the positions they occupy are now
confidential. Such act would amount to the President’s amendment of an act of
Congress – an act that the Constitution prohibits. Allowing this kind of interpretation
violates the separation of powers, a constitutionally enshrined principle that the Court
has the duty to uphold.44
The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of
EO 503 enjoys the legal presumption of validity. Unless the law or rule is annulled in a
direct proceeding, the legal presumption of its validity stands. The EO’s validity,
however, is not in question in the present case. What is at issue is a proper
interpretation of its application giving due respect to the principle of separation of
powers, and the dissenting opinion’s interpretation does violence to this principle.
Gonzales has security of tenure, but only as a primarily confidential employee
To be sure, both career and non-career service employees have a right to security of
tenure.1âwphi1 All permanent officers and employees in the civil service, regardless
of whether they belong to the career or non-career service category, are entitled to
this guaranty; they cannot be removed from office except for cause provided by law
and after procedural due process.45 The concept of security of tenure, however,
labors under a variation for primarily confidential employees due to the basic concept
of a "primarily confidential" position. Serving at the confidence of the appointing
authority, the primarily confidential employee’s term of office expires when the
appointing authority loses trust in the employee. When this happens, the confidential
employee is not "removed" or "dismissed" from office; his term merely "expires" 46 and
the loss of trust and confidence is the "just cause" provided by law that results in the
termination of employment. In the present case where the trust and confidence has
been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion
when he decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall
not be suspended or dismissed except for cause, as provided by law and after due
process. It cannot be expanded to grant a right to public office despite a change in the
nature of the office held. In other words, the CSC might have been legally correct
when it ruled that the petitioner violated Gonzales’ right to security of tenure when she
was removed without sufficient just cause from her position, but the situation had
since then been changed. In fact, Gonzales was reinstated as ordered, but her
services were subsequently terminated under the law prevailing at the time of the
termination of her service; i.e., she was then already occupying a position that was
primarily confidential and had to be dismissed because she no longer enjoyed the
trust and confidence of the appointing authority. Thus, Gonzales’ termination for lack
of confidence was lawful. She could no longer be reinstated as provincial
administrator of Camarines Norte or to any other comparable position. This
conclusion, however, is without prejudice to Gonzales’ entitlement to retirement
benefits, leave credits, and future employment in government service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and

REVERSE and SET ASIDE the Decision dated June 25, 2008 and the Resolution
dated December 2, 2008 of the Court of Appeals in CAG.R. SP No. 97425.

SO ORDERED.
 THIRD DIVISION On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then Stenographic
Reporter III at the NLRC, filed a Complaint for sexual harassment against Rayala
G.R. No. 155831 February 18, 2008 before Secretary Bienvenido Laguesma of the Department of Labor and Employment
(DOLE).
MA. LOURDES T. DOMINGO, petitioner,
vs. To support the Complaint, Domingo executed an Affidavit narrating the incidences of
ROGELIO I. RAYALA, respondent. sexual harassment complained of, thus:

x-------------------------x xxxx

G.R. No. 155840 February 18, 2008 4. Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala ng
mga salitang "Lot, gumaganda ka yata?"
ROGELIO I. RAYALA, petitioner,
vs. 5. Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at hahawakan
OFFICE OF THE PRESIDENT; RONALDO V. ZAMORA, in his capacity as ang aking balikat sabay pisil sa mga ito habang ako ay nagta-type at habang
Executive Secretary; ROY V. SENERES, in his capacity as Chairman of the nagbibigay siya ng diktasyon. Sa mga pagkakataong ito, kinakabahan ako.
National Labor Relations Commission (in lieu of RAUL T. AQUINO, in his Natatakot na baka mangyari sa akin ang mga napapabalitang insidente na
capacity as Acting Chairman of the National labor Relations Commission); and nangyari na noon tungkol sa mga sekretarya niyang nagbitiw gawa ng mga
MA. LOURDES T. DOMINGO, respondents. mahahalay na panghihipo ni Chairman.

x-------------------------x
G.R. No. 158700 February 18, 2008
The REPUBLIC OF THE PHILIPPINES, represented by the OFFICE OF THE
PRESIDENT; and ALBERTO G. ROMULO, in his capacity as Executive
Secretary, petitioners,
vs.
ROGELIO I. RAYALA, respondent.
DECISION
NACHURA, J.:
Sexual harassment is an imposition of misplaced "superiority" which is enough to
dampen an employee’s spirit and her capacity for advancement. It affects her sense
of judgment; it changes her life.1
Before this Court are three Petitions for Review on Certiorari assailing the October 18,
2002 Resolution of the CA’s Former Ninth Division2 in CA-G.R. SP No. 61026. The
Resolution modified the December 14, 2001 Decision 3 of the Court of Appeals’
Eleventh Division, which had affirmed the Decision of the Office of the President (OP)
dismissing from the service then National Labor Relations Commission (NLRC)
Chairman Rogelio I. Rayala (Rayala) for disgraceful and immoral conduct.
All three petitions stem from the same factual antecedents.
6. Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8th Floor, may
nagsabi sa akin na kailangan akong bumaba sa 7 th Floor kung nasaan ang
aming opisina dahil sa may koreksyon daw na gagawin sa mga papel na
tinayp ko. Bumaba naman ako para gawin ito. Habang ginagawa ko ito,
lumabas si Chairman Rayala sa silid ni Mr. Alex Lopez. Inutusan ako ni
Chairman na sumunod sa kaniyang silid. Nang nasa silid na kami, sinabi
niya sa akin:
Chairman: Lot, I like you a lot. Naiiba ka sa lahat.
At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na bagay
sa aking buhay. Ang ilan dito ay tungkol sa aking mga magulang, kapatid,
pag-aaral at kung may boyfriend na raw ba ako.
Chairman: May boyfriend ka na ba?
Lourdes: Dati nagkaroon po.
Chairman: Nasaan na siya?
Lourdes: Nag-asawa na ho.
Chairman: Bakit hindi kayo nagkatuluyan?
Lourdes: Nainip po.
 Chairman: Pagkatapos mo ng kurso mo ay kumuha ka ng Law at
ako ang bahala sa iyo, hanggang ako pa ang Chairman dito.
Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa
akin.
Chairman: Kuhanin mo ito.
Lourdes: Huwag na ho hindi ko kailangan.
Chairman: Hindi sige, kuhanin mo. Ayusin mo ang dapat ayusin.
Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at
kinakabahan na kapag hindi ko tinanggap ang pera ay baka siya magagalit
kasabay na rito ang pagtapon sa akin kung saan-saan opisina o kaya ay
tanggalin ako sa posisyon.
Chairman: Paglabas mo itago mo ang pera. Ayaw ko ng may
makaka-alam nito. Just the two of us.
Lourdes: Bakit naman, Sir?
Chairman: Basta. Maraming tsismosa diyan sa labas. But I don’t
give them a damn. Hindi ako mamatay sa kanila.
Tumayo na ako at lumabas. Pumanhik na ako ng 8 th Floor at pumunta ako
sa officemate ko na si Agnes Magdaet. Ikinwento ko ang nangyari sa akin sa
opisina ni Chairman. Habang kinikwento ko ito kay Agnes ay binilang namin
ang pera na nagkakahalaga ng tatlong libong piso (PHP 3,000). Sinabi ni
Agnes na isauli ko raw ang pera, pero ang sabi ko ay natatakot ako baka
magalit si Sir. Nagsabi agad kami kay EC Perlita Velasco at sinalaysay ko
ang nangyari. Sinabi niya na isauli ko ang pera at noong araw ding iyon ay
nagpasiya akong isauli na nga ito ngunit hindi ako nagkaroon ng
pagkakataon dahil marami siyang naging bisita. Isinauli ko nga ang pera
noong Lunes, Setyembre 14, 1998.
7. Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa akin si
Chairman Rayala na hindi ko masikmura, at sa aking palagay at tahasang
pambabastos sa akin.
Chairman: Lot, may ka live-in ka ba?
Lourdes: Sir, wala po.
Chairman: Bakit malaki ang balakang mo?
Lourdes: Kayo, Sir ha! Masama sa amin ang may ka live-in.
Chairman: Bakit, ano ba ang relihiyon ninyo?
Lourdes: Catholic, Sir. Kailangan ikasal muna.
Chairman: Bakit ako, hindi kasal.
Lourdes: Sir, di magpakasal kayo.
Chairman: Huh. Ibahin na nga natin ang usapan.
8. Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman Rayala.
Ito ay sa kadahilanang ang fax machine ay nasa loob ng kaniyang kwarto.
Ang nag-aasikaso nito, si Riza Ocampo, ay naka-leave kaya ako ang nag-
asikaso nito noong araw na iyon. Nang mabigyan ko na ng fax tone yung
kausap ko, pagharap ko sa kanan ay nakaharang sa dadaanan ko si
Chairman Rayala. Tinitingnan ako sa mata at ang titig niya ay umuusad
mula ulo hanggang dibdib tapos ay ngumiti na may mahalay na
pakahulugan.
9. Noong hapon naman ng pareho pa ring petsa, may nag-aapply na
sekretarya sa opisina, sinabi ko ito kay Chairman Rayala:
Lourdes: Sir, si Pinky po yung applicant, mag-papainterview po
yata sa inyo.
Chairman: Sabihin mo magpa-pap smear muna siya
Chairman: O sige, i-refer mo kay Alex. (Alex Lopez, Chief of Staff).
10. Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa
kaniyang opisina upang kuhanin ko ang diktasyon niya para kay ELA Oscar
Uy. Hindi pa kami nakakatapos ng unang talata, may pumasok na bisita si
Chairman, si Baby Pangilinan na sinamahan ni Riza Ocampo. Pinalabas
muna ako ni Chairman. Nang maka-alis na si Ms. Pangilinan, pinapasok na
niya ako ulit. Umupo ako. Lumapit sa likuran ko si Chairman, hinawakan ang
kaliwang balikat ko na pinipisil ng kanang kamay niya at sinabi:
Chairman: Saan na ba tayo natapos?
Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya
pagkatapos, at nilagay niya ang kanang kamay niya sa aking kanang balikat
at pinisil-pisil ito pagkatapos ay pinagapang niya ito sa kanang bahagi ng
aking leeg, at pinagapang hanggang kanang tenga at saka kiniliti. Dito ko
inalis ang kaniyang kamay sa pamamagitan ng aking kaliwang kamay. At
saka ko sinabi:
Lourdes: Sir, yung kamay ninyo alisin niyo!
 Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na
maintindihan ang na-isulat ko dahil sa takot at inis na nararamdaman ko.4
After the last incident narrated, Domingo filed for leave of absence and asked to be
immediately transferred. Thereafter, she filed the Complaint for sexual harassment on
the basis of Administrative Order No. 250, the Rules and Regulations Implementing
RA 7877 in the Department of Labor and Employment.
Upon receipt of the Complaint, the DOLE Secretary referred the Complaint to the OP,
Rayala being a presidential appointee. The OP, through then Executive Secretary
Ronaldo Zamora, ordered Secretary Laguesma to investigate the allegations in the
Complaint and create a committee for such purpose. On December 4, 1998,
Secretary Laguesma issued Administrative Order (AO) No. 280, Series of
1998,5 constituting a Committee on Decorum and Investigation (Committee) in
accordance with Republic Act (RA) 7877, the Anti-Sexual Harassment Act of 1995.6
The Committee heard the parties and received their respective evidence. On March 2,
2000, the Committee submitted its report and recommendation to Secretary
Laguesma. It found Rayala guilty of the offense charged and recommended the
imposition of the minimum penalty provided under AO 250, which it erroneously
stated as suspension for six (6) months.
The following day, Secretary Laguesma submitted a copy of the Committee Report
and Recommendation to the OP, but with the recommendation that the penalty should
be suspension for six (6) months and one (1) day, in accordance with AO 250.
On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO 119,7 the
pertinent portions of which read:
Upon a careful scrutiny of the evidence on record, I concur with the findings
of the Committee as to the culpability of the respondent [Rayala], the same
having been established by clear and convincing evidence. However, I
disagree with the recommendation that respondent be meted only the
penalty of suspension for six (6) months and one (1) day considering the
circumstances of the case.
What aggravates respondent’s situation is the undeniable circumstance that
he took advantage of his position as the superior of the complainant.
Respondent occupies the highest position in the NLRC, being its Chairman.
As head of said office, it was incumbent upon respondent to set an example
to the others as to how they should conduct themselves in public office, to
see to it that his subordinates work efficiently in accordance with Civil
Service Rules and Regulations, and to provide them with healthy working
atmosphere wherein co-workers treat each other with respect, courtesy and
cooperation, so that in the end the public interest will be benefited (City
Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785 [1990]).
What is more, public service requires the utmost integrity and strictest
discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a public servant
must exhibit at all times the highest sense of honesty and integrity, and
"utmost devotion and dedication to duty" (Sec. 4 (g), RA 6713), respect the
rights of others and shall refrain from doing acts contrary to law, and good
morals (Sec. 4(c)). No less than the Constitution sanctifies the principle that
a public office is a public trust, and enjoins all public officers and employees
to serve with the highest degree of responsibility, integrity, loyalty and
efficiency (Section 1, Article XI, 1987 Constitution).
Given these established standards, I see respondent’s acts not just [as] a
failure to give due courtesy and respect to his co-employees (subordinates)
or to maintain good conduct and behavior but defiance of the basic norms or
virtues which a government official must at all times uphold, one that is
contrary to law and "public sense of morality." Otherwise stated, respondent
– to whom stricter standards must apply being the highest official [of] the
NLRC – had shown an attitude, a frame of mind, a disgraceful conduct,
which renders him unfit to remain in the service.
WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala,
Chairman, National Labor Relations Commission, is found guilty of the grave
offense of disgraceful and immoral conduct and is hereby DISMISSED from
the service effective upon receipt of this Order.
SO ORDER[ED].
Rayala filed a Motion for Reconsideration, which the OP denied in a
Resolution8 dated May 24, 2000. He then filed a Petition for Certiorari and Prohibition
with Prayer for Temporary Restraining Order under Rule 65 of the Revised Rules on
Civil Procedure before this Court on June 14, 2000.9 However, the same was
dismissed in a Resolution dated June 26, 2000 for disregarding the hierarchy of
courts.10 Rayala filed a Motion for
Reconsideration11 on August 15, 2000. In its Resolution12 dated September 4, 2000,
the Court recalled its June 26 Resolution and referred the petition to the Court of
Appeals (CA) for appropriate action.
The CA rendered its Decision13 on December 14, 2001. It held that there was
sufficient evidence on record to create moral certainty that Rayala committed the acts
he was charged with. It said:
The complainant narrated her story complete with details. Her
straightforward and uninhibited testimony was not emasculated by the
declarations of Commissioner Rayala or his witnesses. x x x
Moreover, Commissioner Rayala has not proven any vicious motive for
Domingo and her witnesses to invent their stories. It is very unlikely that they
would perjure themselves only to accommodate the alleged conspiracy to
oust petitioner from office. Save for his empty conjectures and speculations,
Rayala failed to substantiate his contrived conspiracy. It is a hornbook
doctrine that conspiracy must be proved by positive and convincing evidence
 (People v. Noroña, 329 SCRA 502 [2000]). Besides, it is improbable that the
complainant would concoct a story of sexual harassment against the highest
official of the NLRC and thereby expose herself to the possibility of losing
her job, or be the subject of reprisal from her superiors and perhaps public
ridicule if she was not telling the truth.
It also held that Rayala’s dismissal was proper. The CA pointed out that Rayala was
dismissed for disgraceful and immoral conduct in violation of RA 6713, the Code of
Conduct and Ethical Standards for Public Officials and Employees. It held that the OP
was correct in concluding that Rayala’s acts violated RA 6713:
Indeed, [Rayala] was a public official, holding the Chairmanship of the
National Labor Relations Commission, entrusted with the sacred duty of
administering justice. Occupying as he does such an exalted position,
Commissioner Rayala must pay a high price for the honor bestowed upon
him. He must comport himself at all times in such a manner that the conduct
of his everyday life should be beyond reproach and free from any
impropriety. That the acts complained of were committed within the
sanctuary of [his] office compounded the objectionable nature of his
wrongdoing. By daring to violate the complainant within the solitude of his
chambers, Commissioner Rayala placed the integrity of his office in
disrepute. His disgraceful and immoral conduct warrants his removal from
office.14
Thus, it dismissed the petition, to wit:
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby
DISMISSED and Administrative Order No. 119 as well [as] the Resolution of
the Office of the President in O.P. Case No. 00-E-9118 dated May 24, 2000
are AFFIRMED IN TOTO. No cost.
SO ORDERED.15
Rayala timely filed a Motion for Reconsideration. Justices Vasquez and Tolentino
voted to affirm the December 14 Decision. However, Justice Reyes dissented mainly
because AO 250 states that the penalty imposable is suspension for six (6) months
and one (1) day.16 Pursuant to the internal rules of the CA, a Special Division of Five
was constituted.17 In its October 18, 2002 Resolution, the CA modified its earlier
Decision:
ACCORDINGLY, the Decision dated December [14], 2001 is MODIFIED to
the effect that the penalty of dismissal is DELETED and instead the penalty
of suspension from service for the maximum period of one (1) year is
HEREBY IMPOSED upon the petitioner. The rest of the challenged decision
stands.
SO ORDERED.
Domingo filed a Petition for Review18 before this Court, which we denied in our
February 19, 2003 Resolution for having a defective verification. She filed a Motion for
Reconsideration, which the Court granted; hence, the petition was reinstated.
Rayala likewise filed a Petition for Review19 with this Court essentially arguing that he
is not guilty of any act of sexual harassment.
Meanwhile, the Republic filed a Motion for Reconsideration of the CA’s October 18,
2002 Resolution. The CA denied the same in its June 3, 2003 Resolution, the
dispositive portion of which reads:
ACCORDINGLY, by a majority vote, public respondents’ Motion for
Reconsideration, (sic) is DENIED.
SO ORDERED.
The Republic then filed its own Petition for Review.20
On June 28, 2004, the Court directed the consolidation of the three (3) petitions.
G.R. No. 155831
Domingo assails the CA’s resolution modifying the penalty imposed by the Office of
the President. She raises this issue:
The Court of Appeals erred in modifying the penalty for the respondent from
dismissal to suspension from service for the maximum period of one year.
The President has the prerogative to determine the proper penalty to be
imposed on an erring Presidential appointee. The President was well within
his power when he fittingly used that prerogative in deciding to dismiss the
respondent from the service.21
She argues that the power to remove Rayala, a presidential appointee, is lodged with
the President who has control of the entire Executive Department, its bureaus and
offices. The OP’s decision was arrived at after affording Rayala due process. Hence,
his dismissal from the service is a prerogative that is entirely with the President. 22
As to the applicability of AO No. 250, she argues that the same was not intended to
cover cases against presidential appointees. AO No. 250 refers only to the instances
wherein the DOLE Secretary is the disciplining authority, and thus, the AO does not
circumscribe the power of the President to dismiss an erring presidential appointee.
G.R. No. 155840
In his petition, Rayala raises the following issues:
 I. CONTRARY TO THE FINDINGS OF THE COURT OF APPEALS, THE
ACTS OF HEREIN PETITIONER DO NOT CONSTITUTE SEXUAL
HARASSMENT AS LAID DOWN BY THE En Banc RULING IN THE CASE
OF AQUINO vs. ACOSTA, ibid., AS WELL AS IN THE APPLICATION OF
EXISTING LAWS.
II. CONTRARY TO THE FINDINGS OF THE HONORABLE COURT OF
APPEALS, INTENT IS AN INDISPENSABLE ELEMENT IN A CASE FOR
SEXUAL HARASSMENT. THE HONORABLE COURT ERRED IN ITS
FINDING THAT IT IS AN OFFENSE THAT IS MALUM PROHIBITUM.
III. THE INVESTIGATION COMMITTEE, THE OFFICE OF THE
PRESIDENT, AND NOW, THE HONORABLE COURT OF APPEALS, HAS
MISAPPLIED AND EXPANDED THE DEFINITION OF SEXUAL
HARASSMENT IN THE WORKPLACE UNDER R.A. No. 7877, BY
APPLYING DOLE A.O. 250, WHICH RUNS COUNTER TO THE RECENT
PRONOUNCEMENTS OF THIS HONORABLE SUPREME COURT.23
Invoking Aquino v. Acosta,24 Rayala argues that the case is the definitive ruling on
what constitutes sexual harassment. Thus, he posits that for sexual harassment to
exist under RA 7877, there must be: (a) demand, request, or requirement of a sexual
favor; (b) the same is made a pre-condition to hiring, re-employment, or continued
employment; or (c) the denial thereof results in discrimination against the employee.
Rayala asserts that Domingo has failed to allege and establish any sexual favor,
demand, or request from petitioner in exchange for her continued employment or for
her promotion. According to Rayala, the acts imputed to him are without malice or
ulterior motive. It was merely Domingo’s perception of malice in his alleged acts – a
"product of her own imagination"25 – that led her to file the sexual harassment
complaint.
Likewise, Rayala assails the OP’s interpretation, as upheld by the CA, that RA 7877
is malum prohibitum such that the defense of absence of malice is unavailing. He
argues that sexual harassment is considered an offense against a particular person,
not against society as a whole. Thus, he claims that intent is an essential element of
the offense because the law requires as a conditio sine qua non that a sexual favor
be first sought by the offender in order to achieve certain specific results. Sexual
harassment is committed with the perpetrator’s deliberate intent to commit the
offense.26
Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In
particular, he assails the definition of the forms of sexual harassment:
Rule IV
FORMS OF SEXUAL HARASSMENT
Section 1. Forms of Sexual Harassment. – Sexual harassment may be
committed in any of the following forms:
a) Overt sexual advances;
b) Unwelcome or improper gestures of affection;
c) Request or demand for sexual favors including but not limited to going out
on dates, outings or the like for the same purpose;
d) Any other act or conduct of a sexual nature or for purposes of sexual
gratification which is generally annoying, disgusting or offensive to the
victim.27
He posits that these acts alone without corresponding demand, request, or
requirement do not constitute sexual harassment as contemplated by the law. 28 He
alleges that the rule-making power granted to the employer in Section 4(a) of RA
7877 is limited only to procedural matters. The law did not delegate to the employer
the power to promulgate rules which would provide other or additional forms of sexual
harassment, or to come up with its own definition of sexual harassment. 29
G.R. No. 158700
The Republic raises this issue:
Whether or not the President of the Philippines may validly dismiss
respondent Rayala as Chairman of the NLRC for committing acts of
sexual harassment.30
The Republic argues that Rayala’s acts constitute sexual harassment under AO 250.
His acts constitute unwelcome or improper gestures of affection and are acts or
conduct of a sexual nature, which are generally annoying or offensive to the victim. 31
It also contends that there is no legal basis for the CA’s reduction of the penalty
imposed by the OP. Rayala’s dismissal is valid and warranted under the
circumstances. The power to remove the NLRC Chairman solely rests upon the
President, limited only by the requirements under the law and the due process clause.
The Republic further claims that, although AO 250 provides only a one (1) year
suspension, it will not prevent the OP from validly imposing the penalty of dismissal
on Rayala. It argues that even though Rayala is a presidential appointee, he is still
subject to the Civil Service Law. Under the Civil Service Law, disgraceful and immoral
conduct, the acts imputed to Rayala, constitute grave misconduct punishable by
dismissal from the service.32 The Republic adds that Rayala’s position is invested with
public trust and his acts violated that trust; thus, he should be dismissed from the
service.
This argument, according to the Republic, is also supported by Article 215 of the
Labor Code, which states that the Chairman of the NLRC holds office until he reaches
the age of 65 only during good behavior.33 Since Rayala’s security of tenure is
conditioned upon his good behavior, he may be removed from office if it is proven that
he has failed to live up to this standard.
All the issues raised in these three cases can be summed up in two ultimate
questions, namely:
(1) Did Rayala commit sexual harassment?
(2) If he did, what is the applicable penalty?
Initially, however, we must resolve a procedural issue raised by Rayala. He accuses
the Office of the Solicitor General (OSG), as counsel for the Republic, of forum
shopping because it filed a motion for reconsideration of the decision in CA-G.R. SP
No. 61026 and then filed a comment in G.R. No. 155840 before this Court.
We do not agree.
Forum shopping is an act of a party, against whom an adverse judgment or order has
been rendered in one forum, of seeking and possibly securing a favorable opinion in
another forum, other than by appeal or special civil action for certiorari.34 It consists of
filing multiple suits involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a favorable judgment. 35
There is forum shopping when the following elements concur: (1) identity of the
parties or, at least, of the parties who represent the same interest in both actions; (2)
identity of the rights asserted and relief prayed for, as the latter is founded on the
same set of facts; and (3) identity of the two preceding particulars such that any
judgment rendered in the other action will amount to res judicata in the action under
consideration or will constitute litis pendentia.36
Reviewing the antecedents of these consolidated cases, we note that the CA
rendered the assailed Resolution on October 18, 2002. The Republic filed its Motion
for Reconsideration on November 22, 2002. On the other hand, Rayala filed his
petition before this Court on November 21, 2002. While the Republic’s Motion for
Reconsideration was pending resolution before the CA, on December 2, 2002, it was
directed by this Court to file its Comment on Rayala’s petition, which it submitted on
June 16, 2003.
When the CA denied the Motion for Reconsideration, the Republic filed its own
Petition for Review with this Court on July 3, 2003. It cited in its "Certification and
Verification of a Non-Forum Shopping" (sic), that there was a case involving the same
facts pending before this Court denominated as G.R. No. 155840. With respect to
Domingo’s petition, the same had already been dismissed on February 19, 2003.
Domingo’s petition was reinstated on June 16, 2003 but the resolution was received
by the OSG only on July 25, 2003, or after it had filed its own petition.37
Based on the foregoing, it cannot be said that the OSG is guilty of forum shopping.
We must point out that it was Rayala who filed the petition in the CA, with the
Republic as the adverse party. Rayala himself filed a motion for reconsideration of the
CA’s December 21, 2001 Decision, which led to a more favorable ruling, i.e., the
lowering of the penalty from dismissal to one-year suspension. The parties adversely
affected by this ruling (Domingo and the Republic) had the right to question the same
on motion for reconsideration. But Domingo directly filed a Petition for Review with
this Court, as did Rayala. When the Republic opted to file a motion for
reconsideration, it was merely exercising a right. That Rayala and Domingo had by
then already filed cases before the SC did not take away this right. Thus, when this
Court directed the Republic to file its Comment on Rayala’s petition, it had to comply,
even if it had an unresolved motion for reconsideration with the CA, lest it be cited for
contempt.
Accordingly, it cannot be said that the OSG "file[d] multiple suits involving the same
parties for the same cause of action, either simultaneously or successively, for the
purpose of obtaining a favorable judgment."
We now proceed to discuss the substantive issues.
It is noteworthy that the five CA Justices who deliberated on the case were
unanimous in upholding the findings of the Committee and the OP. They found the
assessment made by the Committee and the OP to be a "meticulous and
dispassionate analysis of the testimonies of the complainant (Domingo), the
respondent (Rayala), and their respective witnesses." 38 They differed only on the
appropriate imposable penalty.
That Rayala committed the acts complained of – and was guilty of sexual harassment
– is, therefore, the common factual finding of not just one, but three independent
bodies: the Committee, the OP and the CA. It should be remembered that when
supported by substantial evidence, factual findings made by quasi-judicial and
administrative bodies are accorded great respect and even finality by the
courts.39 The principle, therefore, dictates that such findings should bind us.40
Indeed, we find no reason to deviate from this rule. There appears no valid ground for
this Court to review the factual findings of the CA, the OP, and the Investigating
Committee. These findings are now conclusive on the Court. And quite significantly,
Rayala himself admits to having committed some of the acts imputed to him.
He insists, however, that these acts do not constitute sexual harassment, because
Domingo did not allege in her complaint that there was a demand, request, or
requirement of a sexual favor as a condition for her continued employment or for her
promotion to a higher position.41 Rayala urges us to apply to his case our ruling
in Aquino v. Acosta.42
We find respondent’s insistence unconvincing.
Basic in the law of public officers is the three-fold liability rule, which states that the
wrongful acts or omissions of a public officer may give rise to civil, criminal and
administrative liability. An action for each can proceed independently of the
others.43 This rule applies with full force to sexual harassment.
The law penalizing sexual harassment in our jurisdiction is RA 7877. Section 3 thereof
defines work-related sexual harassment in this wise:
Sec. 3. Work, Education or Training-related Sexual Harassment Defined. –
Work, education or training-related sexual harassment is committed by an
employer, manager, supervisor, agent of the employer, teacher, instructor,
professor, coach, trainor, or any other person who, having authority,
influence or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise requires any sexual
favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.
(a) In a work-related or employment environment, sexual harassment is
committed when:
(1) The sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said individual, or
in granting said individual favorable compensation, terms, conditions,
promotions, or privileges; or the refusal to grant the sexual favor results in
limiting, segregating or classifying the employee which in a way would
discriminate, deprive or diminish employment opportunities or otherwise
adversely affect said employee;
(2) The above acts would impair the employee’s rights or privileges under
existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive
environment for the employee.
This section, in relation to Section 7 on penalties, defines the criminal aspect of the
unlawful act of sexual harassment. The same section, in relation to Section 6,
authorizes the institution of an independent civil action for damages and other
affirmative relief.
Section 4, also in relation to Section 3, governs the procedure for administrative
cases, viz.:
Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education
or Training Environment. – It shall be the duty of the employer or the head of
the work-related, educational or training environment or institution, to prevent
or deter the commission of acts of sexual harassment and to provide the
procedures for the resolution, settlement or prosecution of acts of sexual
harassment. Towards this end, the employer or head of office shall:
(a) Promulgate appropriate rules and regulations in consultation
with and jointly approved by the employees or students or trainees,
through their duly designated representatives, prescribing the
procedure for the investigation or sexual harassment cases and the
administrative sanctions therefor.
Administrative sanctions shall not be a bar to prosecution in the
proper courts for unlawful acts of sexual harassment.
The said rules and regulations issued pursuant to this section (a)
shall include, among others, guidelines on proper decorum in the
workplace and educational or training institutions.
(b) Create a committee on decorum and investigation of cases on
sexual harassment. The committee shall conduct meetings, as the
case may be, with other officers and employees, teachers,
instructors, professors, coaches, trainors and students or trainees
to increase understanding and prevent incidents of sexual
harassment. It shall also conduct the investigation of the alleged
cases constituting sexual harassment.
In the case of a work-related environment, the committee shall be composed
of at least one (1) representative each from the management, the union, if
any, the employees from the supervisory rank, and from the rank and file
employees.
In the case of the educational or training institution, the committee shall be
composed of at least one (1) representative from the administration, the
trainors, teachers, instructors, professors or coaches and students or
trainees, as the case maybe.
The employer or head of office, educational or training institution shall
disseminate or post a copy of this Act for the information of all concerned.
The CA, thus, correctly ruled that Rayala’s culpability is not to be determined solely
on the basis of Section 3, RA 7877, because he is charged with the administrative
offense, not the criminal infraction, of sexual harassment.44 It should be enough that
the CA, along with the Investigating Committee and the Office of the President, found
substantial evidence to support the administrative charge.
Yet, even if we were to test Rayala’s acts strictly by the standards set in Section 3,
RA 7877, he would still be administratively liable. It is true that this provision calls for
a "demand, request or requirement of a sexual favor." But it is not necessary that the
demand, request or requirement of a sexual favor be articulated in a categorical oral
or written statement. It may be discerned, with equal certitude, from the acts of the
offender. Holding and squeezing Domingo’s shoulders, running his fingers across her
neck and tickling her ear, having inappropriate conversations with her, giving her
money allegedly for school expenses with a promise of future privileges, and making
statements with unmistakable sexual overtones – all these acts of Rayala resound
with deafening clarity the unspoken request for a sexual favor.
Likewise, contrary to Rayala’s claim, it is not essential that the demand, request or
requirement be made as a condition for continued employment or for promotion to a
higher position. It is enough that the respondent’s acts result in creating an
intimidating, hostile or offensive environment for the employee. 45 That the acts of
Rayala generated an intimidating and hostile environment for Domingo is clearly
shown by the common factual finding of the Investigating Committee, the OP and the
CA that Domingo reported the matter to an officemate and, after the last incident, filed
for a leave of absence and requested transfer to another unit.
Rayala’s invocation of Aquino v. Acosta46 is misplaced, because the factual setting in
that case is different from that in the case at bench. In Aquino, Atty. Susan Aquino,
Chief of the Legal and Technical Staff of the Court of Tax Appeals (CTA), charged
then CTA Presiding Judge (now Presiding Justice) Ernesto Acosta of sexual
harassment. She complained of several incidents when Judge Acosta allegedly
kissed her, embraced her, and put his arm around her shoulder. The case was
referred to CA Justice Josefina G. Salonga for investigation. In her report, Justice
Salonga found that "the complainant failed to show by convincing evidence that the
acts of Judge Acosta in greeting her with a kiss on the cheek, in a `beso-beso’
fashion, were carried out with lustful and lascivious desires or were motivated by
malice or ill motive. It is clear from the circumstances that most of the kissing
incidents were done on festive and special occasions," and they "took place in the
presence of other people and the same was by reason of the exaltation or happiness
of the moment." Thus, Justice Salonga concluded:
In all the incidents complained of, the respondent's pecks on the cheeks of
the complainant should be understood in the context of having been done on
the occasion of some festivities, and not the assertion of the latter that she
was singled out by Judge Acosta in his kissing escapades. The busses on
her cheeks were simply friendly and innocent, bereft of malice and lewd
design. The fact that respondent judge kisses other people on the cheeks in
the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita
P. Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that
they usually practice 'beso-beso' or kissing on the cheeks, as a form of
greeting on occasions when they meet each other, like birthdays, Christmas,
New Year's Day and even Valentine's Day, and it does not matter whether it
is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer
who belongs to complainant's department, further attested that on occasions
like birthdays, respondent judge would likewise greet her with a peck on the
cheek in a 'beso-beso' manner. Interestingly, in one of several festive
occasions, female employees of the CTA pecked respondent judge on the
cheek where Atty. Aquino was one of Judge Acosta's well wishers.
In sum, no sexual harassment had indeed transpired on those six occasions.
Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms
of greetings, casual and customary in nature. No evidence of intent to
sexually harass complainant was apparent, only that the innocent acts of
'beso-beso' were given malicious connotations by the complainant. In fact,
she did not even relate to anyone what happened to her. Undeniably, there
is no manifest sexual undertone in all those incidents. 47
This Court agreed with Justice Salonga, and Judge Acosta was exonerated.
To repeat, this factual milieu in Aquino does not obtain in the case at bench. While
in Aquino, the Court interpreted the acts (of Judge Acosta) as casual gestures of
friendship and camaraderie, done during festive or special occasions and with other
people present, in the instant case, Rayala’s acts of holding and squeezing
Domingo’s shoulders, running his fingers across her neck and tickling her ear, and the
inappropriate comments, were all made in the confines of Rayala’s office when no
other members of his staff were around. More importantly, and a circumstance absent
in Aquino, Rayala’s acts, as already adverted to above, produced a hostile work
environment for Domingo, as shown by her having reported the matter to an
officemate and, after the last incident, filing for a leave of absence and requesting
transfer to another unit.
Rayala also argues that AO 250 does not apply to him. First, he argues that AO 250
does not cover the NLRC, which, at the time of the incident, was under the DOLE only
for purposes of program and policy coordination. Second, he posits that even
assuming AO 250 is applicable to the NLRC, he is not within its coverage because he
is a presidential appointee.
We find, however, that the question of whether or not AO 250 covers Rayala is of no
real consequence. The events of this case unmistakably show that the administrative
charges against Rayala were for violation of RA 7877; that the OP properly assumed
jurisdiction over the administrative case; that the participation of the DOLE, through
the Committee created by the Secretary, was limited to initiating the investigation
process, reception of evidence of the parties, preparation of the investigation report,
and recommending the appropriate action to be taken by the OP. AO 250 had never
really been applied to Rayala. If it was used at all, it was to serve merely as an
auxiliary procedural guide to aid the Committee in the orderly conduct of the
investigation.
Next, Rayala alleges that the CA erred in holding that sexual harassment is an
offense malum prohibitum. He argues that intent is an essential element in sexual
harassment, and since the acts imputed to him were done allegedly without malice,
he should be absolved of the charges against him.
We reiterate that what is before us is an administrative case for sexual harassment.
Thus, whether the crime of sexual harassment is malum in se or malum prohibitum is
immaterial.
We also reject Rayala’s allegations that the charges were filed because of a
conspiracy to get him out of office and thus constitute merely political harassment. A
conspiracy must be proved by clear and convincing evidence. His bare assertions
cannot stand against the evidence presented by Domingo. As we have already ruled,
the acts imputed to Rayala have been proven as fact. Moreover, he has not proven
any ill motive on the part of Domingo and her witnesses which would be ample reason
for her to conjure stories about him. On the contrary, ill motive is belied by the fact
that Domingo and her witnesses – all employees of the NLRC at that time – stood to
lose their jobs or suffer unpleasant consequences for coming forward and charging
their boss with sexual harassment.
Furthermore, Rayala decries the alleged violation of his right to due process. He
accuses the Committee on Decorum of railroading his trial for violation of RA 7877.
He also scored the OP’s decision finding him guilty of "disgraceful and immoral
conduct" under the Revised Administrative Code and not for violation of RA 7877.
Considering that he was not tried for "disgraceful and immoral conduct," he argues
that the verdict is a "sham and total nullity."
We hold that Rayala was properly accorded due process. In previous cases, this
Court held that:
[i]n administrative proceedings, due process has been recognized to include
the following: (1) the right to actual or constructive notice of the institution of
proceedings which may affect a respondent’s legal rights; (2) a real
opportunity to be heard personally or with the assistance of counsel, to
present witnesses and evidence in one’s favor, and to defend one’s rights;
(3) a tribunal vested with competent jurisdiction and so constituted as to
afford a person charged administratively a reasonable guarantee of honesty
as well as impartiality; and (4) a finding by said tribunal which is supported
by substantial evidence submitted for consideration during the hearing or
contained in the records or made known to the parties affected. 48
The records of the case indicate that Rayala was afforded all these procedural due
process safeguards. Although in the beginning he questioned the authority of the
Committee to try him,49 he appeared, personally and with counsel, and participated in
the proceedings.
On the other point raised, this Court has held that, even in criminal cases, the
designation of the offense is not controlling, thus:
What is controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated, these
being mere conclusions of law made by the prosecutor, but the description of
the crime charged and the particular facts therein recited. The acts or
omissions complained of must be alleged in such form as is sufficient to
enable a person of common understanding to know what offense is intended
to be charged, and enable the court to pronounce proper judgment. No
information for a crime will be sufficient if it does not accurately and clearly
allege the elements of the crime charged. Every element of the offense must
be stated in the information. What facts and circumstances are necessary to
be included therein must be determined by reference to the definitions and
essentials of the specified crimes. The requirement of alleging the elements
of a crime in the information is to inform the accused of the nature of the
accusation against him so as to enable him to suitably prepare his
defense.50
It is noteworthy that under AO 250, sexual harassment amounts to disgraceful and
immoral conduct.51 Thus, any finding of liability for sexual harassment may also be
the basis of culpability for disgraceful and immoral conduct.
With the foregoing disquisitions affirming the finding that Rayala committed sexual
harassment, we now determine the proper penalty to be imposed.
Rayala attacks the penalty imposed by the OP. He alleges that under the pertinent
Civil Service Rules, disgraceful and immoral conduct is punishable by suspension for
a period of six (6) months and one (1) day to one (1) year. He also argues that since
he is charged administratively, aggravating or mitigating circumstances cannot be
appreciated for purposes of imposing the penalty.
Under AO 250, the penalty for the first offense is suspension for six (6) months and
one (1) day to one (1) year, while the penalty for the second offense is
dismissal.52 On the other hand, Section 22(o), Rule XVI of the Omnibus Rules
Implementing Book V of the Administrative Code of 198753 and Section 52 A(15) of
the Revised Uniform Rules on Administrative Cases in the Civil Service54 both provide
that the first offense of disgraceful and immoral conduct is punishable by suspension
of six (6) months and one (1) day to one (1) year. A second offense is punishable by
dismissal.
Under the Labor Code, the Chairman of the NLRC shall hold office during good
behavior until he or she reaches the age of sixty-five, unless sooner removed for
cause as provided by law or becomes incapacitated to discharge the duties of the
office.55
In this case, it is the President of the Philippines, as the proper disciplining authority,
who would determine whether there is a valid cause for the removal of Rayala as
NLRC Chairman. This power, however, is qualified by the phrase "for cause as
provided by law." Thus, when the President found that Rayala was indeed guilty of
disgraceful and immoral conduct, the Chief Executive did not have unfettered
discretion to impose a penalty other than the penalty provided by law for such
offense. As cited above, the imposable penalty for the first offense of either the
administrative offense of sexual harassment or for disgraceful and immoral conduct is
suspension of six (6) months and one (1) day to one (1) year. Accordingly, it was error
for the Office of the President to impose upon Rayala the penalty of dismissal from
the service, a penalty which can only be imposed upon commission of a second
offense.
Even if the OP properly considered the fact that Rayala took advantage of his high
government position, it still could not validly dismiss him from the service. Under
the Revised Uniform Rules on Administrative Cases in the Civil Service,56 taking
undue advantage of a subordinate may be considered as an aggravating
circumstance57 and where only aggravating and no mitigating circumstances are
present, the maximum penalty shall be imposed.58Hence, the maximum penalty that
can be imposed on Rayala is suspension for one (1) year.
Rayala holds the exalted position of NLRC Chairman, with the rank equivalent to a
CA Justice. Thus, it is not unavailing that rigid standards of conduct may be
demanded of him. In Talens-Dabon v. Judge Arceo,59 this Court, in upholding the
liability of therein respondent Judge, said:
The actuations of respondent are aggravated by the fact that complainant is
one of his subordinates over whom he exercises control and supervision, he
being the executive judge. He took advantage of his position and power in
order to carry out his lustful and lascivious desires. Instead of he being
 in loco parentis over his subordinate employees, respondent was the one
who preyed on them, taking advantage of his superior position.

In yet another case, this Court declared:

As a managerial employee, petitioner is bound by more exacting work ethics.

He failed to live up to his higher standard of responsibility when he
succumbed to his moral perversity. And when such moral perversity is
perpetrated against his subordinate, he provides a justifiable ground for his
dismissal for lack of trust and confidence. It is the right, nay, the duty of
every employer to protect its employees from oversexed superiors. 60

It is incumbent upon the head of office to set an example on how his employees
should conduct themselves in public office, so that they may work efficiently in a
healthy working atmosphere. Courtesy demands that he should set a good
example.61

Rayala has thrown every argument in the book in a vain effort to effect his
exoneration. He even puts Domingo’s character in question and casts doubt on the
morality of the former President who ordered, albeit erroneously, his dismissal from
the service. Unfortunately for him, these are not significant factors in the disposition of
the case. It is his character that is in question here and sadly, the inquiry showed that
he has been found wanting.

WHEREFORE, the foregoing premises considered, the October 18, 2002 Resolution
of the Court of Appeals in CA-G.R. SP No. 61026 is AFFIRMED. Consequently, the
petitions in G.R. Nos. 155831, 155840, and 158700 are DENIED. No pronouncement
as to costs.

SO ORDERED.
G.R. No. 114795 July 17, 1996
LUCITA Q. GARCES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and
CLAUDIO CONCEPCION, respondents.
RESOLUTION
FRANCISCO, J.:p
Questioned in this petition for review is the decision 1 of the Court of Appeals 2 (CA),
as well as its resolution, which affirmed the decision of the Regional Trial
Court 3 (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against
a Provincial Election Supervisor and an incumbent Election Registrar.
The undisputed facts are as follows:
Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del
Norte on July 27, 1986. She was to replace respondent Election Registrar Claudio
Concepcion who, in turn, was transferred to Liloy, Zamboanga del
Norte. 4 Correspondingly approved by the Civil Service Commission, 5 both
appointments were to take effect upon assumption of office. Concepcion, however,
refused to transfer post as he did not request for it. 6 Garces, on the other hand, was
directed by the Office of Assistant Director for Operations to assume the Gutalac
post. 7 But she was not able to do so because of a Memorandum issued by
respondent Provincial Election Supervisor Salvador Empeynado that prohibited her
from assuming office in Gutalac as the same is not vacant. 8
On February 24, 1987, Garces was directed by the same Office of Assistant Director
to defer her assumption of the Gutalac post. On April 15, 1987, she received a letter
from the Acting Manager, Finance Service Department, with an enclosed check to
cover for the expenses on construction of polling booths. It was addressed "Mrs.
Lucita Garces E.R. Gutalac, Zamboanga del Norte" which Garces interpreted to mean
as superseding the deferment order. 9 Meanwhile, since respondent Concepcion
continued occupying the Gutalac office, the COMELEC en banccancelled his
appointment to Liloy. 10
On February 26, 1988, Garces filed before the RTC a petition for mandamus with
preliminary prohibitory and mandatory injunction and damages against
Empeynado 11 and Concepcion, among others. Meantime, the COMELEC en
banc through a Resolution dated June 3, 1988, resolved to recognize respondent
Concepcion as the Election Registrar of Gutalac, 12 and ordered that the
appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. 13 In
view thereof, respondent Empeynado moved to dismiss the petition
for mandamus alleging that the same was rendered moot and academic by the said
COMELEC Resolution, and that the case is cognizable only by the COMELEC under
Sec. 7 Art. IX-A of the 1987 Constitution. The RTC, thereafter, dismissed the petition
for mandamus on two grounds, viz., (1) that quo warranto is the proper
remedy, 14 and (2) that the "cases" or "matters" referred under the constitution pertain
only to those involving the conduct of elections. On appeal, respondent CA affirmed
the RTC's dismissal of the case. Hence, this petition
The issues raised are purely legal. First, is petitioner's action for mandamus proper?
And, second, is this case cognizable by the RTC or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac post
which was deemed vacated at the time of her appointment and qualification. Garces
insists that the vacancy was created by Section 2, Article III of the Provisional
Constitution. 15 On the contrary, Concepcion posits that he did not vacate his Gutalac
post as he did not accept the transfer to Liloy.
Article III Section 2 of the Provisional Constitution provides:
All elective and appointive officials and employees under
the 1973 Constitution shall continue in the office until
otherwise provided by proclamation or executive order
or upon the designation or appointment and qualification of
their successors, if such is made within a period of one
year from February 25, 1986. (Emphasis supplied).
The above organic provision did not require any cause for removal of an
appointive official under the 1973 Constitution. 16 The transition period from
the old to the new Constitution envisioned an "automatic" vacancy; 17 hence
the government is not hard put to prove anything plainly and simply because
the Constitution allows it. 18 Mere appointment and qualification of the
successor removes an incumbent from his post. Nevertheless, the
government in an act of auto-limitation and to prevent indiscriminate
dismissal of government personnel issued on May 28, 1986, Executive
Order (E.O.) No. 17. This executive order, which applies in this case as it
was passed prior to the issuance of Concepcion's transfer order,
enumerates five grounds for separation or replacement of elective and
appointive officials authorized under Article III, Section 2 of the Provisional
Constitution, to wit:
1. Existence of a case for summary dismissal pursuant to
Section 40 of the Civil Service Law;
2. Existence of the probable cause for violation of the Anti-
Graft and Corrupt Practices Act as determined by the
Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of
functions;
4. Misuse of public office for partisan political purposes;
 5. Any other analogous ground showing that the
incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service.
Not one of these grounds was alleged to exist, much less proven by
petitioner when respondent Concepcion was transferred from Gutalac to
Liloy. More, Concepcion was transferred without his consent. A transfer
requires a prior appointment. 19 If the transfer was made without the consent
of the official concerned, it is tantamount to removal without valid
cause 20 contrary to the fundamental guarantee on non-removal except for
cause. 21 Concepcion's transfer thus becomes legally infirm and without
effect for he was not validly terminated. His appointment to the Liloy post, in
fact, was incomplete because he did not accept it. Acceptance, it must be
emphasized, it is indispensable to complete an appointment.22 Corollarily,
Concepcion's post in Gutalac never became vacant. It is a basic precept in
the law of public officers that "no person, no matter how qualified and eligible
he is for a certain position may be appointed to an office which is not
vacant. 23 There can be no appointment to a non-vacant position. The
incumbent must first be legally removed, or his appointment validly
terminated before one could be validly installed to succeed him. Further,
Garces' appointment was ordered to be deferred by the COMELEC. The
deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.
These factors negate Garces' claim for a well-defined, clear, certain legal
right to the Gutalac post. On the contrary, her right to the said office is
manifestly doubtful and highly questionable. As correctly ruled by respondent
court, mandamus, which petitioner filed below, will not lie as this remedy
applies only where petitioner's right is founded clearly in law and not when it
is doubtful. 24 It will not issue to give him something to which he is not clearly
and conclusively entitled. 25 Considering that Concepcion continuously
occupies the disputed position and exercises the corresponding functions
therefor, the proper remedy should have been quo warranto and
not mandamus. 26 Quo warranto tests the title to one's office claimed by
another and has as its object the ouster of the holder from its enjoyment,
while mandamus avails to enforce clear legal duties and not to try disputed
titles. 27
Garces' heavy reliance with the 1964 Tulawie 28 case is misplaced for
material and different factual considerations. Unlike in this case, the disputed
office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly
vacant and petitioner Tulawie's appointment was confirmed by the higher
authorities making his claim to the disputed position clear and certain.
Tulawie's petition for mandamus, moreover, was against the Provincial
Agriculturist who never claimed title to the contested office. In this case,
there was no vacancy in the Gutalac post and petitioner's appointment to
which she could base her claim was revoked making her claim uncertain.
Coming now to the second issue.
The jurisdiction of the RTC was challenged by respondent
Empeynado 29 contending that this is a "case" or "matter" cognizable by the
COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC
resolution cancelling the appointment of Garces as Election Registrar of
Gutalac, he argues, should be raised only on certiorari before the Supreme
Court and not before the RTC, else the latter court becomes a reviewer of
an en banc COMELEC resolution contrary to Sec. 7, Art. IX-A.
The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:
Each commission shall decide by a majority vote of all its members
any case or matter brought before it within sixty days from the date
of its submission for decision or resolution. A case or matter is
deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the
commission or by the commission itself. Unless otherwise provided
by this constitution or by law, any decision, order, or ruling of each
commission may be brought to the supreme court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof.
This provision is inapplicable as there was no case or matter filed before the
COMELEC. On the contrary, it was the COMELEC's resolution that triggered
this controversy. The "case" or "matter" referred to by the constitution must
be something within the jurisdiction of the COMELEC, i.e., it must pertain to
an election dispute. The settled rule is that "decision, rulings, order" of the
COMELEC that may be brought to the Supreme Court on certiorari under
Sec. 7 Art. IX-A are those that relate to the COMELEC's exercise of
its adjudicatory or quasi-judicial powers 30 involving "elective regional,
provincial, and city officials." 31 In this case, what is being assailed is the
COMELEC's choice of an appointee to occupy the Gutalac Post which is an
administrative duty done for the operational set-up of an agency. 32 The
controversy involves an appointive, not an elective, official. Hardly can this
matter call for the certiorari jurisdiction of the Supreme Court. To rule
otherwise would surely burden the Court with trivial administrative questions
that are best ventilated before the RTC, a court which the law vests with the
power to exercise original jurisdiction over "all cases not within the exclusive
jurisdiction over of any court, tribunal, person or body exercising judicial
orquasi-judicial
functions." 33
WHEREFORE, premises considered, the petition for review is hereby
DENIED without prejudice to the filing of the proper action with the
appropriate body.
G.R. No. 131429 August 4, 1999
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L.
DAYAON, petitioners,
vs.
EXECUTIVE SECRETARY RUBEN TORRES, BUDGET SECRETARY SALVADOR
ENRIQUEZ, JR., JUSTICE SECRETARY TEOFISTO GUINGONA, JR., and ATTY.
CONRADO QUIAOIT, respondents.
VITUG, J.:
The validity and legality of the appointment of respondent Conrado Quiaoit to the post
of Provincial Prosecutor of Tarlac by then President Fidel V. Ramos is assailed in this
petition for review on certiorari on a pure question of law which prays for the reversal
of the Order,1 dated 20 October 1997, of the Regional Trial Court (Branch 63) of
Tarlac, Tarlac, dismissing the petition for prohibition and/or injunction and mandamus,
with a prayer for the issuance of a writ of injunction/temporary restraining order,
instituted by herein petitioners.
The occurrence of a vacancy in the Office of the Provincial Prosecutor of Tarlac
impelled the main contestants in this case, petitioner Oscar Bermudez and
respondent Conrado Quiaoit, to take contrasting views on the proper interpretation of
a provision in the 1987 Revised Administrative Code. Bermudez, the First Assistant
Provincial Prosecutor of Tarlac and Officer-In-Charge of the Office of the Provincial
Prosecutor, was a recommendee2 of then Justice Secretary Teofisto Guingona, Jr.,
for the position of Provincial Prosecutor. Quiaoit, on the other hand, would appear to
have had the support of then Representative Jose Yap of the Second Legislative
District of Tarlac.3 On 30 June 1997, Quiaoit emerged the victor when he was
appointed by President Ramos to the coveted office. Quiaoit received a certified xerox
copy of his appointment and, on 21 July 1997, took his oath of office before Executive
Judge Angel Parazo of the Regional Trial Court (Branch 65) of Tarlac, Tarlac. On 23
July 1997, Quiaoit assumed office and immediately informed the President, as well as
the Secretary of Justice and the Civil Service Commission, of that assumption.
Bermudez refused to vacate the Office of Provincial Prosecutor claiming that the
original copy of Quiaoit's appointment had not yet been released by the Secretary of
Justice.4 Quiaoit, nonetheless, performed the functions and duties of the Office of
Provincial Prosecutor by issuing office orders and memoranda, signing resolutions on
preliminary investigations, and filing several informations before the courts. Quiaoit
had since been regularly receiving the salary, RATA and other emoluments of the
office.
On 17 September 1997, Bermudez and Quiaoit were summoned to Manila by Justice
Secretary Guingona. The three met at the Department of Justice and, following the
conference, Bermudez was ordered to wind up his cases until 15 October 1997 and to
turn-over the contested office to Quiaoit the next day.1âwphi1.nêt
In his First Indorsement, dated 22 September 1997, for the Chief State Prosecutor,
Assistant Chief State Prosecutor Nilo Mariano transmitted the original copy of
Quiaoit's appointment to the Regional State Prosecutor Carlos de Leon, Region III, at
San Fernando, Pampanga. In turn, in his Second Indorsement, dated 02 October
1997, Regional State Prosecutor de Leon forwarded to Quiaoit said original copy of
his appointment. On the basis of the transmittal letter of Regional State Prosecutor de
Leon, Quiaoit, as directed, again so assumed office on 16 October 1997. On even
date, Bermudez was detailed at the Office of the Regional State Prosecutor, Region
III, in San Fernando Pampanga.
In the meantime, on 10 October 1997, Bermudez together with his co-petitioners
Arturo Llobrera and Claudio Dayaon, the Second Assistant Provincial Prosecutor and
the Fourth Assistant Provincial Prosecutor of Tarlac, respectively, filed with the
Regional Trial Court of Tarlac, a petition for prohibition and/or injunction,
and mandamus, with a prayer for the issuance of a writ of injunction/temporary
restraining order, against herein respondents, challenging the appointment of Quiaoit
primarily on the ground that the appointment lacks the recommendation of the
Secretary of Justice prescribed under the Revised Administrative Code of 1987. After
hearing, the trial court considered the petition submitted for resolution and, in due
time, issued its now assailed order dismissing the petition. The subsequent move by
petitioners to have the order reconsidered met with a denial.
Hence, the instant recourse.
The core issue for consideration is whether or not the absence of a recommendation
of the Secretary of Justice to the President can be held fatal to the appointment of
respondent Conrado Quiaoit. This question would, in turn, pivot on the proper
understanding of the provision of the Revised Administrative Code of 1987 (Book IV,
Title III, Chapter II, Section 9) to the effect that —
All provincial and city prosecutors and their assistants shall be appointed by
the President upon the recommendation of the Secretary.
Petitioners contend that an appointment of a provincial prosecutor mandatorily
requires a prior recommendation of the Secretary of Justice endorsing the intended
appointment citing, by analogy, the case of San Juan vs. CSC 5where the Court held:
. . . The DBM may appoint only from the list of qualified recommendees
nominated by the Governor. If none is qualified, he must return the list of
nominees to the Governor explaining why no one meets the legal
requirements and ask for new recommendees who have the necessary
eligibilities and qualifications.
The Provincial Budget Officer (PBO) is expected to synchronize his work
with DBM.6 (Emphasis supplied.)
Insisting on the application of San Juan, petitioners call attention to the tenor of
Executive Order No. 1127 —
Sec. 1. All budget officers of provinces, cities and municipalities shall be
appointed henceforth by the Minister of Budget and Management upon
recommendation of the local chief executive concerned. . . . —
that, they claim, can be likened to the aforequoted provision of the Revised
Administrative Code of 1987. Respondents argue differently.
The legislative intent is, of course, primordial. There is no hard-and-fast rule in
ascertaining whether the language in a statute should be considered mandatory or
directory, and the application of a ruling in one particular instance may not necessarily
be apt in another8 for each must be determined on the basis of the specific law in
issue and the peculiar circumstances attendant to it. More often than not, the
problem, in the final analysis, is firmed up and addressed on a case-to-case basis.
The nature, structure and aim of the law itself is often resorted to in looking at the
legislative intent. Generally, it is said that if no consequential rights or liabilities
depend on it and no injury can result from ignoring it, and that the purpose of the
legislature can be accomplished in a manner other than that prescribed when
substantially the same results can be obtained, then the statute should be regarded
merely as directory, rather than as mandatory, in character. 9
An "appointment" to a public office is the unequivocal act of designating or selecting
by one having the authority therefor of an individual to discharge and perform the
duties and functions of an office or trust.10 The appointment is deemed complete once
the last act required of the appointing authority has been complied with and its
acceptance thereafter by the appointee in order to render it effective.11 Appointment
necessarily calls for an exercise of discretion on the part of the appointing
authority.12 In Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate
Court,13 reiterated in Flores vs. Drilon,14 this Court has held:
The power to appoint is, in essence, discretionary. The appointing power has
the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative of the appointing
power . . .15
Indeed, it may rightly be said that the right of choice is the heart of the power to
appoint.16 In the exercise of the power of appointment, discretion is an integral part
thereof.
When the Constitution17 or the law18 clothes the President with the power to appoint a
subordinate officer, such conferment must be understood as necessarily carrying with
it an ample discretion of whom to appoint. It should be here pertinent to state that the
President is the head of government whose authority includes the power of control
over all "executive departments, bureaus and offices." Control means the authority of
an empowered officer to alter or modify, or even nullify or set aside, what a
subordinate officer has done in the performance of his duties, as well as to substitute
the judgment of the latter,19 as and when the former deems it to be appropriate.
Expressed in another way, the President has the power to assume directly the
functions of an executive department, bureau and office.20 It can accordingly be
inferred therefrom that the President can interfere in the exercise of discretion of
officials under him or altogether ignore their recommendations. 21
It is the considered view of the Court, given the above disquisition, that the phrase
"upon recommendation of the Secretary," found in Section 9, Chapter II, Title III, Book
IV, of the Revised Administrative Code, should be interpreted, as it is normally so
understood, to be a mere advise, exhortation or indorsement, which is essentially
persuasive in character and not binding or obligatory upon the party to whom it is
made.22 The recommendation is here nothing really more than advisory in
nature.23 The President, being the head of the Executive Department, could very well
disregard or do away with the action of the departments, bureaus or offices even in
the exercise of discretionary authority, and in so opting, he cannot be said as having
acted beyond the scope of his authority.
The doctrine in San Juan, relied upon by petitioners, is tangential. While the tenor of
the legal provision in Executive Order No. 112 has some similarity with the provision
in the 1987 Administrative Code in question, it is to be pointed out, however, that San
Juan,24 in construing the law, has distinctively given stress to the constitutional
mandate on local autonomy; thus:
The issue before the Court is not limited to the validity of the appointment of
one Provincial Budget Officer. The tug of war between the Secretary of
Budget and Management and the Governor of the premier province of Rizal
over a seemingly innocuous position involves the application of a most
important constitutional policy and principle, that of local autonomy. We have
to obey the clear mandate on local autonomy. Where a law is capable of two
interpretations, one in favor of centralized power in Malacañang and the
other beneficial to local autonomy, the scales must be weighed in favor of
autonomy.
xxx xxx xxx
When the Civil Service Commission interpreted the recommending power of
the Provincial Governor as purely directory, it went against the letter and
spirit of the constitutional provisions on local autonomy. If the DBM Secretary
jealously hoards the entirety of budgetary powers and ignores the right of
local governments to develop self-reliance and resoluteness in the handling
of their own funds, the goal of meaningful local autonomy is frustrated and
set back.25
The Court there has explained that the President merely exercises general
supervision over local government units and local officials, 26 hence, in the
appointment of a Provincial Budget Officer, the executive department, through the
Secretary of Budget and Management, indeed had to share the questioned power
with the local government.
In the instant case, the recommendation of the Secretary of Justice and the
appointment of the President are acts of the Executive Department itself, and there is
no sharing of power to speak of, the latter being deemed for all intents and purposes
as being merely an extension of the personality of the President.
WHEREFORE, the petition is DENIED. No costs.1âwphi1.nêt
SO ORDERED.