JUDICIARY I- Whether or not the Honorable Court of Appeals gravely erred in dismissing the case for lack of

Case #1 jurisdiction.
G.R. No. 175723               February 4, 2014 II- Whether or not the Honorable Regional Trial Court gravely abuse[d] its discretion amounting to lack
THE CITY OF MANILA, represented by MAYOR JOSE L. ATIENZA, JR., and MS. LIBERTY M. TOLEDO, in her or excess of jurisdiction in enjoining by issuing a Writ of Injunction the petitioners, their agents and/or
capacity as the City Treasurer of Manila, Petitioners, authorized representatives from implementing Section 21 of the Revised Revenue Code of Manila, as
vs. amended, against private respondents.
HON. CARIDAD H. GRECIA-CUERDO, in her capacity as Presiding Judge of the Regional Trial Court, Branch III- Whether or not the Honorable Regional Trial Court gravely abuse[d] its discretion amounting to lack
112, Pasay City; SM MART, INC.; SM PRIME HOLDINGS, INC.; STAR APPLIANCES CENTER; SUPERVALUE, or excess of jurisdiction in issuing the Writ of Injunction despite failure of private respondents to make a
INC.; ACE HARDWARE PHILIPPINES, INC.; WATSON PERSONAL CARE STORES, PHILS., INC.; JOLLIMART written claim for tax credit or refund with the City Treasurer of Manila.
PHILS., CORP.; SURPLUS MARKETING CORPORATION and SIGNATURE LINES, Respondents. IV- Whether or not the Honorable Regional Trial Court gravely abuse[d] its discretion amounting to lack
DECISION or excess of jurisdiction considering that under Section 21 of the Manila Revenue Code, as amended,
PERALTA, J.: they are mere collecting agents of the City Government.
Before the Court is a special civil action for certiorari under Rule 65 of the Rules of Court seeking to reverse and V- Whether or not the Honorable Regional Trial Court gravely abuse[d] its discretion amounting to lack
set aside the Resolutions1 dated April 6, 2006 and November 29, 2006 of the Court of Appeals (CA) in CA-G.R. or excess of jurisdiction in issuing the Writ of Injunction because petitioner City of Manila and its
SP No. 87948. constituents would result to greater damage and prejudice thereof. (sic) 8
The antecedents of the case, as summarized by the CA, are as follows: Without first resolving the above issues, this Court finds that the instant petition should be denied for being moot
The record shows that petitioner City of Manila, through its treasurer, petitioner Liberty Toledo, assessed taxes for and academic.
the taxable period from January to December 2002 against private respondents SM Mart, Inc., SM Prime Upon perusal of the original records of the instant case, this Court discovered that a Decision 9 in the main case
Holdings, Inc., Star Appliances Center, Supervalue, Inc., Ace Hardware Philippines, Inc., Watsons Personal Care had already been rendered by the RTC on August 13, 2007, the dispositive portion of which reads as follows:
Stores Phils., Inc., Jollimart Philippines Corp., Surplus Marketing Corp. and Signature Lines. In addition to the WHEREFORE, in view of the foregoing, this Court hereby renders JUDGMENT in favor of the plaintiff and against
taxes purportedly due from private respondents pursuant to Section 14, 15, 16, 17 of the Revised Revenue Code the defendant to grant a tax refund or credit for taxes paid pursuant to Section 21 of the Revenue Code of the City
of Manila (RRCM), said assessment covered the local business taxes petitioners were authorized to collect under of Manila as amended for the year 2002 in the following amounts:
Section 21 of the same Code. Because payment of the taxes assessed was a precondition for the issuance of To plaintiff SM Mart, Inc. - P 11,462,525.02
their business permits, private respondents were constrained to pay the ₱19,316,458.77 assessment under
protest. To plaintiff SM Prime Holdings, Inc. - 3,118,104.63
On January 24, 2004, private respondents filed [with the Regional Trial Court of Pasay City] the complaint
To plaintiff Star Appliances Center - 2,152,316.54
denominated as one for "Refund or Recovery of Illegally and/or Erroneously-Collected Local Business Tax,
Prohibition with Prayer to Issue TRO and Writ of Preliminary Injunction" To plaintiff Supervalue, Inc. - 1,362,750.34
which was docketed as Civil Case No. 04-0019-CFM before public respondent's sala [at Branch 112]. In the
amended complaint they filed on February 16, 2004, private respondents alleged that, in relation to Section 21 To plaintiff Ace Hardware Phils., Inc. - 419,689.04
thereof, Sections 14, 15, 16, 17, 18, 19 and 20 of the RRCM were violative of the limitations and guidelines under To plaintiff Watsons Personal Care Health - 231,453.62
Section 143 (h) of Republic Act. No. 7160 [Local Government Code] on double taxation. They further averred that
petitioner city's Ordinance No. 8011 which amended pertinent portions of the RRCM had already been declared to Stores Phils., Inc.
be illegal and unconstitutional by the Department of Justice. 2
To plaintiff Jollimart Phils., Corp. - 140,908.54
In its Order3 dated July 9, 2004, the RTC granted private respondents' application for a writ of preliminary
injunction. To plaintiff Surplus Marketing Corp. - 220,204.70
Petitioners filed a Motion for Reconsideration4 but the RTC denied it in its Order5 dated October 15, 2004.
To plaintiff Signature Mktg. Corp. - 94,906.34
Petitioners then filed a special civil action for certiorari with the CA assailing the July 9, 2004 and October 15,
2004 Orders of the RTC.6 TOTAL: - P 19,316,458.77
In its Resolution promulgated on April 6, 2006, the CA dismissed petitioners' petition for certiorari holding that it
Defendants are further enjoined from collecting taxes under Section 21, Revenue Code of Manila from herein
has no jurisdiction over the said petition. The CA ruled that since appellate jurisdiction over private respondents'
plaintiff.
complaint for tax refund, which was filed with the RTC, is vested in the Court of Tax Appeals (CTA), pursuant to its
SO ORDERED.10
expanded jurisdiction under Republic Act No. 9282 (RA 9282), it follows that a petition for certiorari seeking
The parties did not inform the Court but based on the records, the above Decision had already become final and
nullification of an interlocutory order issued in the said case should, likewise, be filed with the CTA.
executory per the Certificate of Finality11 issued by the same trial court on October 20, 2008. In fact, a Writ of
Petitioners filed a Motion for Reconsideration,7 but the CA denied it in its Resolution dated November 29, 2006.
Execution12 was issued by the RTC on November 25, 2009. In view of the foregoing, it clearly appears that the
Hence, the present petition raising the following issues:
issues raised in the present petition, which merely involve the incident on the preliminary injunction issued by the
RTC, have already become moot and academic considering that the trial court, in its decision on the merits in the
main case, has already ruled in favor of respondents and that the same decision is now final and executory. Well
entrenched is the rule that where the issues have become moot and academic, there is no justiciable controversy,
thereby rendering the resolution of the same of no practical use or value. 13
In any case, the Court finds it necessary to resolve the issue on jurisdiction raised by petitioners owing to its
significance and for future guidance of both bench and bar. It is a settled principle that courts will decide a
question otherwise moot and academic if it is capable of repetition, yet evading review. 14
However, before proceeding, to resolve the question on jurisdiction, the Court deems it proper to likewise address
a procedural error which petitioners committed.
Petitioners availed of the wrong remedy when they filed the instant special civil action for certiorari under Rule 65
of the Rules of Court in assailing the Resolutions of the CA which dismissed their petition filed with the said court
and their motion for reconsideration of such dismissal. There is no dispute that the assailed Resolutions of the CA
are in the nature of a final order as they disposed of the petition completely. It is settled that in cases where an
assailed judgment or order is considered final, the remedy of the aggrieved party is appeal. Hence, in the instant
case, petitioner should have filed a petition for review on certiorari under Rule 45, which is a continuation of the
appellate process over the original case.15
Petitioners should be reminded of the equally-settled rule that a special civil action for certiorari under Rule 65 is
an original or independent action based on grave abuse of discretion amounting to lack or excess of jurisdiction
and it will lie only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law.16 As such, it cannot be a substitute for a lost appeal. 17
Nonetheless, in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial
justice, this Court has, before, treated a petition for certiorari as a petition for review on certiorari, particularly (1) if
the petition for certiorari was filed within the reglementary period within which to file a petition for review on
certiorari; (2) when errors of judgment are averred; and (3) when there is sufficient reason to justify the relaxation
of the rules.18 Considering that the present petition was filed within the 15-day reglementary period for filing a
petition for review on certiorari under Rule 45, that an error of judgment is averred, and because of the
significance of the issue on jurisdiction, the Court deems it proper and justified to relax the rules and, thus, treat
the instant petition for certiorari as a petition for review on certiorari.
Having disposed of the procedural aspect, we now turn to the central issue in this case. The basic question posed
before this Court is whether or not the CTA has jurisdiction over a special civil action for certiorari assailing an
interlocutory order issued by the RTC in a local tax case.
This Court rules in the affirmative.
On June 16, 1954, Congress enacted Republic Act No. 1125 (RA 1125) creating the CTA and giving to the said
court jurisdiction over the following:
(1) Decisions of the Collector of Internal Revenue in cases involving disputed assessments, refunds of
internal revenue taxes, fees or other charges, penalties imposed in relation thereto, or other matters
arising under the National Internal Revenue Code or other law or part of law administered by the Bureau
of Internal Revenue;
(2) Decisions of the Commissioner of Customs in cases involving liability for customs duties, fees or
other money charges; seizure, detention or release of property affected fines, forfeitures or other
penalties imposed in relation thereto; or other matters arising under the Customs Law or other law or
part of law administered by the Bureau of Customs; and
(3) Decisions of provincial or City Boards of Assessment Appeals in cases involving the assessment
and taxation of real property or other matters arising under the Assessment Law, including rules and
regulations relative thereto.
On March 30, 2004, the Legislature passed into law Republic Act No. 9282 (RA 9282) amending RA 1125 by
expanding the jurisdiction of the CTA, enlarging its membership and elevating its rank to the level of a collegiate
court with special jurisdiction. Pertinent portions of the amendatory act provides thus:
Sec. 7. Jurisdiction. - The CTA shall exercise:
a. Exclusive appellate jurisdiction to review by appeal, as herein provided:
1. Decisions of the Commissioner of Internal Revenue in cases involving disputed
assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation
thereto, or other matters arising under the National Internal Revenue or other laws
administered by the Bureau of Internal Revenue;
2. Inaction by the Commissioner of Internal Revenue in cases involving disputed
assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations
thereto, or other matters arising under the National Internal Revenue Code or other laws
administered by the Bureau of Internal Revenue, where the National Internal Revenue Code
provides a specific period of action, in which case the inaction shall be deemed a denial;
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction;
4. Decisions of the Commissioner of Customs in cases involving liability for customs duties,
fees or other money charges, seizure, detention or release of property affected, fines,
forfeitures or other penalties in relation thereto, or other matters arising under the Customs
Law or other laws administered by the Bureau of Customs;
5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment and taxation of real property originally
decided by the provincial or city board of assessment appeals;
6. Decisions of the Secretary of Finance on customs cases elevated to him automatically for
review from decisions of the Commissioner of Customs which are adverse to the Government
under Section 2315 of the Tariff and Customs Code;
7. Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product,
commodity or article, and the Secretary of Agriculture in the case of agricultural product,
commodity or article, involving dumping and countervailing duties under Section 301 and 302,
respectively, of the Tariff and Customs Code, and safeguard measures under Republic Act
No. 8800, where either party may appeal the decision to impose or not to impose said duties.
b. Jurisdiction over cases involving criminal offenses as herein provided:
1. Exclusive original jurisdiction over all criminal offenses arising from violations of the
National Internal Revenue Code or Tariff and Customs Code and other laws administered by
the Bureau of Internal Revenue or the Bureau of Customs: Provided, however, That offenses
or felonies mentioned in this paragraph where the principal amount of taxes and fees,
exclusive of charges and penalties, claimed is less than One million pesos (₱1,000,000.00) or
where there is no specified amount claimed shall be tried by the regular Courts and the
jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and the corresponding civil action for the
recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted
with, and jointly determined in the same proceeding by the CTA, 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 of such civil action separately from the criminal action will be recognized.
2. Exclusive appellate jurisdiction in criminal offenses:
a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax cases originally
decided by them, in their respected territorial jurisdiction.
b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the exercise of
their appellate jurisdiction over tax cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts in their respective jurisdiction.
c. Jurisdiction over tax collection cases as herein provided:
1. Exclusive original jurisdiction in tax collection cases involving final and executory
assessments for taxes, fees, charges and penalties: Provides, however, that collection cases
where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is
less than One million pesos (₱1,000,000.00) shall be tried by the proper Municipal Trial Court,
Metropolitan Trial Court and Regional Trial Court.
2. Exclusive appellate jurisdiction in tax collection cases:
a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax collection cases
originally decided by them, in their respective territorial jurisdiction.
b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the Exercise of
their appellate jurisdiction over tax collection cases originally decided by the Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts, in their respective jurisdiction. 19
A perusal of the above provisions would show that, while it is clearly stated that the CTA has exclusive appellate
jurisdiction over decisions, orders or resolutions of the RTCs in local tax cases originally decided or resolved by
them in the exercise of their original or appellate jurisdiction, there is no categorical statement under RA 1125 as
well as the amendatory RA 9282, which provides that th e CTA has jurisdiction over petitions for certiorari
assailing interlocutory orders issued by the RTC in local tax cases filed before it.
The prevailing doctrine is that the authority to issue writs of certiorari involves the exercise of original jurisdiction
which must be expressly conferred by the Constitution or by law and cannot be implied from the mere existence of
appellate jurisdiction.20 Thus, in the cases of Pimentel v. COMELEC,21 Garcia v. De Jesus,22 Veloria v.
COMELEC,23 Department of Agrarian Reform Adjudication Board v. Lubrica, 24 and Garcia v.
Sandiganbayan,25 this Court has ruled against the jurisdiction of courts or tribunals over petitions for certiorari on
the ground that there is no law which expressly gives these tribunals such power. 26 It must be observed, however,
that with the exception of Garcia v. Sandiganbayan, 27 these rulings pertain not to regular courts but to tribunals
exercising quasi-judicial powers. With respect to the Sandiganbayan, Republic Act No. 8249 28 now provides that
the special criminal court has 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.
In the same manner, Section 5 (1), Article VIII of the 1987 Constitution grants power to the Supreme Court, in the
exercise of its original jurisdiction, to issue writs of certiorari, prohibition and mandamus. With respect to the Court
of Appeals, Section 9 (1) of Batas Pambansa Blg. 129 (BP 129) gives the appellate court, also in the exercise of
its original jurisdiction, the power to issue, among others, a writ of certiorari,whether or not in aid of its appellate
jurisdiction. As to Regional Trial Courts, the power to issue a writ of certiorari, in the exercise of their original
jurisdiction, is provided under Section 21 of BP 129.
The foregoing notwithstanding, while there is no express grant of such power, with respect to the CTA, Section 1,
Article VIII of the 1987 Constitution provides, nonetheless, that judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law and that 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.
On the strength of the above constitutional provisions, it can be fairly interpreted that the power of the CTA
includes that of determining whether or not there has been grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the RTC in issuing an interlocutory order in cases falling within the exclusive appellate
jurisdiction of the tax court. It, thus, follows that the CTA, by constitutional mandate, is vested with jurisdiction to
issue writs of certiorari in these cases.
Indeed, in order for any appellate court to effectively exercise its appellate jurisdiction, it must have the authority to
issue, among others, a writ of certiorari. In transferring exclusive jurisdiction over appealed tax cases to the CTA,
it can reasonably be assumed that the law intended to transfer also such power as is deemed necessary, if not
indispensable, in aid of such appellate jurisdiction. There is no perceivable reason why the transfer should only be
considered as partial, not total.
Consistent with the above pronouncement, this Court has held as early as the case of J.M. Tuason & Co., Inc. v.
Jaramillo, et al.29 that "if a case may be appealed to a particular court or judicial tribunal or body, then said court or
judicial tribunal or body has jurisdiction to issue the extraordinary writ of certiorari, in aid of its appellate
jurisdiction."30 This principle was affirmed in De Jesus v. Court of Appeals, 31 where the Court stated that "a court
may issue a writ of certiorari in aid of its appellate jurisdiction if said court has jurisdiction to review, by appeal or
writ of error, the final orders or decisions of the lower court." 32 The rulings in J.M. Tuason and De Jesus were
reiterated in the more recent cases of Galang, Jr. v. Geronimo 33 and Bulilis v. Nuez.34
Furthermore, Section 6, Rule 135 of the present Rules of Court provides that when by law, jurisdiction is conferred
on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be
employed by such court or officer.
If this Court were to sustain petitioners' contention that jurisdiction over their certiorari petition lies with the CA, this
Court would be confirming the exercise by two judicial bodies, the CA and the CTA, of jurisdiction over basically
the same subject matter – precisely the split-jurisdiction situation which is anathema to the orderly administration
of justice.35 The Court cannot accept that such was the legislative motive, especially considering that the law
expressly confers on the CTA, the tribunal with the specialized competence over tax and tariff matters, the role of
judicial review over local tax cases without mention of any other court that may exercise such power. Thus, the
Court agrees with the ruling of the CA that since appellate jurisdiction over private respondents' complaint for tax
refund is vested in the CTA, it follows that a petition for certiorari seeking nullification of an interlocutory order
issued in the said case should, likewise, be filed with the same court. To rule otherwise would lead to an absurd
situation where one court decides an appeal in the main case while another court rules on an incident in the very
same case.
Stated differently, it would be somewhat incongruent with the pronounced judicial abhorrence to split jurisdiction to
conclude that the intention of the law is to divide the authority over a local tax case filed with the RTC by giving to
the CA or this Court jurisdiction to issue a writ of certiorari against interlocutory orders of the RTC but giving to the
CTA the jurisdiction over the appeal from the decision of the trial court in the same case. It is more in consonance
with logic and legal soundness to conclude that the grant of appellate jurisdiction to the CTA over tax cases filed
in and decided by the RTC carries with it the power to issue a writ of certiorari when necessary in aid of such
appellate jurisdiction. The supervisory power or jurisdiction of the CTA to issue a writ of certiorari in aid of its
appellate jurisdiction should co-exist with, and be a complement to, its appellate jurisdiction to review, by appeal,
the final orders and decisions of the RTC, in order to have complete supervision over the acts of the latter. 36
A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it effectively, to
make all orders that will preserve the subject of the action, and to give effect to the final determination of the
appeal. It carries with it the power to protect that jurisdiction and to make the decisions of the court thereunder
effective. The court, in aid of its appellate jurisdiction, has authority to control all auxiliary and incidental matters
necessary to the efficient and proper exercise of that jurisdiction. 1âwphi1 For this purpose, it may, when
necessary, prohibit or restrain the performance of any act which might interfere with the proper exercise of its
rightful jurisdiction in cases pending before it.37
Lastly, it would not be amiss to point out that a court which is endowed with a particular jurisdiction should have
powers which are necessary to enable it to act effectively within such jurisdiction. These should be regarded as
powers which are inherent in its jurisdiction and the court must possess them in order to enforce its rules of
practice and to suppress any abuses of its process and to defeat any attempted thwarting of such process.
In this regard, Section 1 of RA 9282 states that the CTA shall be of the same level as the CA and shall possess all
the inherent powers of a court of justice.
Indeed, courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as are
necessary for the ordinary and efficient exercise of jurisdiction; or are essential to the existence, dignity and
functions of the courts, as well as to the due administration of justice; or are directly appropriate, convenient and
suitable to the execution of their granted powers; and include the power to maintain the court's jurisdiction and
render it effective in behalf of the litigants. 38
Thus, this Court has held that "while a court may be expressly granted the incidental powers necessary to
effectuate its jurisdiction, a grant of jurisdiction, in the absence of prohibitive legislation, implies the necessary and
usual incidental powers essential to effectuate it, and, subject to existing laws and constitutional provisions, every
regularly constituted court has power to do all things that are reasonably necessary for the administration of
justice within the scope of its jurisdiction and for the enforcement of its judgments and mandates." 39 Hence,
demands, matters or questions ancillary or incidental to, or growing out of, the main action, and coming within the
above principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its
authority over the principal matter, even though the court may thus be called on to consider and decide matters
which, as original causes of action, would not be within its cognizance. 40
Based on the foregoing disquisitions, it can be reasonably concluded that the authority of the CTA to take
cognizance of petitions for certiorari questioning interlocutory orders issued by the RTC in a local tax case is
included in the powers granted by the Constitution as well as inherent in the exercise of its appellate jurisdiction.
Finally, it would bear to point out that this Court is not abandoning the rule that, insofar as quasi-judicial tribunals
are concerned, the authority to issue writs of certiorari must still be expressly conferred by the Constitution or by
law and cannot be implied from the mere existence of their appellate jurisdiction. This doctrine remains as it
applies only to quasi-judicial bodies.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Case no. 2:
G.R. No. 187883               June 16, 2009
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO, Petitioners,
vs.
SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 187910               June 16, 2009
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
SPEAKER PROSPERO C. NOGRALES, Speaker of the House of Representatives, Congress of the
Philippines, Respondent.
RESOLUTION
PUNO, C.J.:
This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its bounden duty to
wield its judicial power 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 a lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." 1 Be that as it may, no
amount of exigency can make this Court exercise a power where it is not proper.
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and taxpayers,
prayed for the nullification of House Resolution No. 1109 entitled "A Resolution Calling upon the Members of
Congress to Convene for the Purpose of Considering Proposals to Amend or Revise the Constitution, Upon a
Three-fourths Vote of All the Members of Congress." In essence, both petitions seek to trigger a justiciable
controversy that would warrant a definitive interpretation by this Court of Section 1, Article XVII, which provides for
the procedure for amending or revising the Constitution. Unfortunately, this Court cannot indulge petitioners’
supplications. While some may interpret petitioners’ moves as vigilance in preserving the rule of law, a careful
perusal of their petitions would reveal that they cannot hurdle the bar of justiciability set by this Court before it will
assume jurisdiction over cases involving constitutional disputes.
It is well settled that it is the duty of the judiciary to say what the law is. 2 The determination of the nature, scope
and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the
part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere
fulfillment of its "solemn and sacred obligation" under the Constitution. 3 This Court’s power of review may be
awesome, but it is limited to actual cases and controversies dealing with parties having adversely legal claims, to
be exercised after full opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented.4 The "case-or-controversy" requirement bans this court from deciding
"abstract, hypothetical or contingent questions,"5 lest the court give opinions in the nature of advice concerning
legislative or executive action.6 In the illuminating words of the learned Justice Laurel in Angara v. Electoral
Commission7 :
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the executive and legislative departments of the
government.
An aspect of the "case-or-controversy" requirement is the requisite of "ripeness." In the United States, courts are
centrally concerned with whether a case involves uncertain contingent future events that may not occur as
anticipated, or indeed may not occur at all.8 Another approach is the evaluation of the twofold aspect of ripeness:
first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding
court consideration.9 In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the
plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect
on the individual challenging it.10 An alternative road to review similarly taken would be to determine whether an
action has already been accomplished or performed by a branch of government before the courts may step in. 11
In the present case, the fitness of petitioners’ case for the exercise of judicial review is grossly lacking. In the first
place, petitioners have not sufficiently proven any adverse injury or hardship from the act complained of. In the
second place, House Resolution No. 1109 only resolved that the House of Representatives shall convene at a
future time for the purpose of proposing amendments or revisions to the Constitution. No actual convention has
yet transpired and no rules of procedure have yet been adopted. More importantly, no proposal has yet been
made, and hence, no usurpation of power or gross abuse of discretion has yet taken place. In short, House
Resolution No. 1109 involves a quintessential example of an uncertain contingent future event that may not occur
as anticipated, or indeed may not occur at all. The House has not yet performed a positive act that would warrant
an intervention from this Court.1avvphi1
Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the validity of
the Laurel-Langley resolution, which dealt with the range of authority of the 1971 Constitutional Convention. The
court resolved the issue thus:
More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the
interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the
appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the
Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new
precedent being announced, it is controlling. It is implicit in the rule of law. 12
Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus, generally,
a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the
challenged action; and (3) the injury is likely to be redressed by the remedy being sought. 13 In the cases at bar,
petitioners have not shown the elemental injury in fact that would endow them with the standing to sue. Locus
standi requires a personal stake in the outcome of a controversy for significant reasons. It assures adverseness
and sharpens the presentation of issues for the illumination of the Court in resolving difficult constitutional
questions.14 The lack of petitioners’ personal stake in this case is no more evident than in Lozano’s three-page
petition that is devoid of any legal or jurisprudential basis.
Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases at bar as
taxpayers and concerned citizens. A taxpayer’s suit requires that the act complained of directly involves the illegal
disbursement of public funds derived from taxation. 15 It is undisputed that there has been no allocation or
disbursement of public funds in this case as of yet. To be sure, standing as a citizen has been upheld by this
Court in cases where a petitioner is able to craft an issue of transcendental importance or when paramount public
interest is involved.16 While the Court recognizes the potential far-reaching implications of the issue at hand, the
possible consequence of House Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus
standi under the "transcendental importance" doctrine.
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1,
Article VIII of the Constitution, which mandates courts of justice to settle only "actual controversies involving rights
which are legally demandable and enforceable." As stated in Kilosbayan, Incorporated v. Guingona, Jr., 17 viz.:
x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their
doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi
is by no means trifle. It is intended "to assure a vigorous adversary presentation of the case, and, perhaps more
importantly to warrant the judiciary's overruling the determination of a coordinate, democratically elected organ of
government." It thus goes to the very essence of representative democracies.
xxxx
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional
issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient
judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits
and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective
dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the
stringent requirements of "personal injury" to the broader "transcendental importance" doctrine, such liberality is
not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but
their cerebral deficit.
In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan
faction, but is exercised only to remedy a particular, concrete injury. 18 When warranted by the presence of
indispensible minimums for judicial review, this Court shall not shun the duty to resolve the constitutional
challenge that may confront it.
IN VIEW WHEREOF, the petitions are dismissed.
SO ORDERED.
Case no.3 :
G.R. No. 193978               February 28, 2012
JELBERT B. GALICTO, Petitioner,
vs.
H.E. PRESIDENT BENIGNO SIMEON C. AQUINO III, in his capacity as President of the Republic of the
Philippines; ATTY. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; and FLORENCIO B. ABAD,
in his capacity as Secretary of the Department of Budget and Management, Respondents.
RESOLUTION
BRION, J.:
Before us is a Petition for Certiorari and Prohibition with Application for Writ of Preliminary Injunction and/or
Temporary Restraining Order,1 seeking to nullify and enjoin the implementation of Executive Order No. (EO) 7
issued by the Office of the President on September 8, 2010. Petitioner Jelbert B. Galicto asserts that EO 7 is
unconstitutional for having been issued beyond the powers of the President and for being in breach of existing
laws.
The petitioner is a Filipino citizen and an employee of the Philippine Health Insurance Corporation
(PhilHealth).2 He is currently holding the position of Court Attorney IV and is assigned at the PhilHealth Regional
Office CARAGA.3
Respondent Benigno Simeon C. Aquino III is the President of the Republic of the Philippines (Pres. Aquino); he
issued EO 7 and has the duty of implementing it. Respondent Paquito N. Ochoa, Jr. is the incumbent Executive
Secretary and, as the alter ego of Pres. Aquino, is tasked with the implementation of EO 7. Respondent Florencio
B. Abad is the incumbent Secretary of the Department of Budget and Management (DBM) charged with the
implementation of EO 7.4
The Antecedent Facts
On July 26, 2010, Pres. Aquino made public in his first State of the Nation Address the alleged excessive
allowances, bonuses and other benefits of Officers and Members of the Board of Directors of the Manila
Waterworks and Sewerage System – a government owned and controlled corporation (GOCC) which has been
unable to meet its standing obligations.5 Subsequently, the Senate of the Philippines (Senate), through the Senate
Committee on Government Corporations and Public Enterprises, conducted an inquiry in aid of legislation on the
reported excessive salaries, allowances, and other benefits of GOCCs and government financial institutions
(GFIs).6
Based on its findings that "officials and governing boards of various [GOCCs] and [GFIs] x x x have been granting
themselves unwarranted allowances, bonuses, incentives, stock options, and other benefits [as well as other]
irregular and abusive practices,"7 the Senate issued Senate Resolution No. 17 "urging the President to order the
immediate suspension of the unusually large and apparently excessive allowances, bonuses, incentives and other
perks of members of the governing boards of [GOCCs] and [GFIs]." 8
Heeding the call of Congress, Pres. Aquino, on September 8, 2010, issued EO 7, entitled "Directing the
Rationalization of the Compensation and Position Classification System in the [GOCCs] and [GFIs], and for Other
Purposes." EO 7 provided for the guiding principles and framework to establish a fixed compensation and position
classification system for GOCCs and GFIs. A Task Force was also created to review all remunerations of GOCC
and GFI employees and officers, while GOCCs and GFIs were ordered to submit to the Task Force information
regarding their compensation. Finally, EO 7 ordered (1) a moratorium on the increases in the salaries and other
forms of compensation, except salary adjustments under EO 8011 and EO 900, of all GOCC and GFI employees
for an indefinite period to be set by the President, 9 and (2) a suspension of all allowances, bonuses and incentives
of members of the Board of Directors/Trustees until December 31, 2010. 10
EO 7 was published on September 10, 2010.11 It took effect on September 25, 2010 and precluded the Board of
Directors, Trustees and/or Officers of GOCCs from granting and releasing bonuses and allowances to members
of the board of directors, and from increasing salary rates of and granting new or additional benefits and
allowances to their employees.
The Petition
The petitioner claims that as a PhilHealth employee, he is affected by the implementation of EO 7, which was
issued with grave abuse of discretion amounting to lack or excess of jurisdiction, based on the following
arguments:
I.
EXECUTIVE ORDER NO. 7 IS NULL AND VOID FOR LACK OF LEGAL BASIS DUE TO THE
FOLLOWING GROUNDS:
A. P.D. 985 IS NOT APPLICABLE AS BASIS FOR EXECUTIVE ORDER NO. 7 BECAUSE
THE GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS WERE
SUBSEQUENTLY GRANTED THE POWER TO FIX COMPENSATION LONG AFTER SUCH
POWER HAS BEEN REVOKED BY P.D. 1597 AND R.A. 6758.
B. THE GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS DO NOT NEED TO
HAVE ITS COMPENSATION PLANS, RATES AND POLICIES REVIEWED BY THE DBM
AND APPROVED BY THE PRESIDENT BECAUSE P.D. 1597 REQUIRES ONLY THE
GOCCs TO REPORT TO THE OFFICE TO THE PRESIDENT THEIR COMPENSATION
PLANS AND RATES BUT THE SAME DOES NOT GIVE THE PRESIDENT THE POWER OF
CONTROL OVER THE FISCAL POWER OF THE GOCCs.
C. J.R. NO. 4, [SERIES] 2009 IS NOT APPLICABLE AS LEGAL BASIS BECAUSE IT HAD
NOT RIPENED INTO X X X LAW, THE SAME NOT HAVING BEEN PUBLISHED.
D. ASSUMING ARGUENDO THAT J.R. NO. 1, S. 2004 (sic) AND J.R. 4, S. 2009 ARE VALID,
STILL THEY ARE NOT APPLICABLE AS LEGAL BASIS BECAUSE THEY ARE NOT LAWS
WHICH MAY VALIDLY DELEGATE POWER TO THE PRESIDENT TO SUSPEND THE
POWER OF THE BOARD TO FIX COMPENSATION.
II.
EXECUTIVE ORDER NO. 7 IS INVALID FOR DIVESTING THE BOARD OF DIRECTORS OF [THE]
GOCCS OF THEIR POWER TO FIX THE COMPENSATION, A POWER WHICH IS A LEGISLATIVE
GRANT AND WHICH COULD NOT BE REVOKED OR MODIFIED BY AN EXECUTIVE FIAT.
III.
EXECUTIVE ORDER NO. 7 IS BY SUBSTANCE A LAW, WHICH IS A DEROGATION OF
CONGRESSIONAL PREROGATIVE AND IS THEREFORE UNCONSTITUTIONAL.
IV.
THE ACTS OF SUSPENDING AND IMPOSING MORATORIUM ARE ULTRA VIRES ACTS BECAUSE
J.R. NO. 4 DOES NOT EXPRESSLY AUTHORIZE THE PRESIDENT TO EXERCISE SUCH POWERS.
V.
EXECUTIVE ORDER NO. 7 IS AN INVALID ISSUANCE BECAUSE IT HAS NO SUFFICIENT
STANDARDS AND IS THEREFORE ARBITRARY, UNREASONABLE AND A VIOLATION OF
SUBSTANTIVE DUE PROCESS.
VI.
EXECUTIVE ORDER NO. 7 INVOLVES THE DETERMINATION AND DISCRETION AS TO WHAT
THE LAW SHALL BE AND IS THEREFORE INVALID FOR ITS USURPATION OF LEGISLATIVE
POWER.
VII.
CONSISTENT WITH THE DECISION OF THE SUPREME COURT IN PIMENTEL V. AGUIRRE CASE,
EXECUTIVE ORDER NO. 7 IS ONLY DIRECTORY AND NOT MANDATORY. 12
The Case for the Respondents
On December 13, 2010, the respondents filed their Comment. They pointed out the following procedural defects
as grounds for the petition’s dismissal: (1) the petitioner lacks locus standi; (2) the petitioner failed to attach a
board resolution or secretary’s certificate authorizing him to question EO 7 in behalf of PhilHealth; (3) the
petitioner’s signature does not indicate his PTR Number, Mandatory Continuing Legal Education (MCLE)
Compliance Number and Integrated Bar of the Philippines (IBP) Number; (4) the jurat of the Verification and
Certification of Non-Forum Shopping failed to indicate a valid identification card as provided under A.M. No. 02-8-
13-SC; (5) the President should be dropped as a party respondent as he is immune from suit; and (6) certiorari is
not applicable to this case.13
The respondents also raised substantive defenses to support the validity of EO 7. They claim that the President
exercises control over the governing boards of the GOCCs and GFIs; thus, he can fix their compensation
packages. In addition, EO 7 was issued in accordance with law for the purpose of controlling the grant of
excessive salaries, allowances, incentives and other benefits to GOCC and GFI employees. They also advocate
the validity of Joint Resolution (J.R.) No. 4, which they point to as the authority for issuing EO 7. 14
Meanwhile, on June 6, 2011, Congress enacted Republic Act (R.A.) No. 10149, 15 otherwise known as the "GOCC
Governance Act of 2011." Section 11 of RA 10149 expressly authorizes the President to fix the compensation
framework of GOCCs and GFIs.
The Court’s Ruling
We resolve to DISMISS the petition for its patent formal and procedural infirmities, and for having been mooted by
subsequent events.
A. Certiorari is not the proper remedy.
Under the Rules of Court, petitions for Certiorari and Prohibition are availed of to question judicial, quasi-judicial
and mandatory acts. Since the issuance of an EO is not judicial, quasi-judicial or a mandatory act, a petition for
certiorari and prohibition is an incorrect remedy; instead a petition for declaratory relief under Rule 63 of the Rules
of Court, filed with the Regional Trial Court (RTC), is the proper recourse to assail the validity of EO 7:
Section 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument,
whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental
regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.
(Emphases ours.)
Liga ng mga Barangay National v. City Mayor of Manila 16 is a case in point.17 In Liga, we dismissed the petition for
certiorari to set aside an EO issued by a City Mayor and insisted that a petition for declaratory relief should have
been filed with the RTC. We painstakingly ruled:
After due deliberation on the pleadings filed, we resolve to dismiss this petition for certiorari.
First, the respondents neither acted in any judicial or quasi-judicial capacity nor arrogated unto themselves any
judicial or quasi-judicial prerogatives. A petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure is
a special civil action that may be invoked only against a tribunal, board, or officer exercising judicial or quasi-
judicial functions.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:
SECTION 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.
Elsewise stated, for a writ of certiorari to issue, the following requisites must concur: (1) it must be directed against
a tribunal, board, or officer exercising judicial or quasi-judicial functions; (2) the tribunal, board, or officer must
have acted without or in excess of jurisdiction or with grave abuse of discretion amounting [to] lack or excess of
jurisdiction; and (3) there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.
A respondent is said to be exercising judicial function  where he has  the power to determine what the law is and
what the legal rights of the parties are, and then undertakes to determine these questions and adjudicate upon the
rights of the parties.
Quasi-judicial function,  on the other hand, is "a term which applies to the actions, discretion, etc., of public
administrative officers or bodies … required to investigate facts or ascertain the existence of facts, hold hearings,
and draw conclusions from them as a basis for their official action and to exercise discretion of a judicial nature."
Before a tribunal, board, or officer may exercise judicial or quasi-judicial acts, it is necessary that there be a law
that gives rise to some specific rights of persons or property under which adverse claims to such rights are made,
and the controversy ensuing therefrom is brought before a tribunal, board, or officer clothed with power and
authority to determine the law and adjudicate the respective rights of the contending parties.
The respondents do not fall within the ambit of tribunal, board, or officer exercising judicial or quasi-judicial
functions.  As correctly pointed out by the respondents, the enactment by the City Council of Manila of the assailed
ordinance and the issuance by respondent Mayor of the questioned executive order were done in the exercise of
legislative and executive functions, respectively, and not of judicial or quasi-judicial functions. On this score
alone, certiorari will not lie.
Second, although the instant petition is styled as a petition for certiorari, in essence, it seeks the declaration by
this Court of the unconstitutionality or illegality of the questioned ordinance and executive order. It, thus, partakes
of the nature of a petition for declaratory relief over which this Court has only appellate, not original, jurisdiction.
Section 5, Article VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is in question. (Italics supplied).
As such, this petition must necessar[ily] fail, as this Court does not have original jurisdiction over a petition for
declaratory relief even if only questions of law are involved. 18
Likewise, in Southern Hemisphere Engagement Network, Inc. v. Anti Terrorism Council, 19 we similarly dismissed
the petitions for certiorari and prohibition challenging the constitutionality of R.A. No. 9372, otherwise known as
the "Human Security Act of 2007," since the respondents therein (members of the Anti-Terrorism Council) did not
exercise judicial or quasi-judicial functions.
While we have recognized in the past that we can exercise the discretion and rulemaking authority we are granted
under the Constitution,20 and set aside procedural considerations to permit parties to bring a suit before us at the
first instance through certiorari and/or prohibition, 21 this liberal policy remains to be an exception to the general
rule, and thus, has its limits. In Concepcion v. Commission on Elections (COMELEC), 22 we emphasized the
importance of availing of the proper remedies and cautioned against the wrongful use of certiorari in order to
assail the quasi-legislative acts of the COMELEC, especially by the wrong party. In ruling that liberality and the
transcendental doctrine cannot trump blatant disregard of procedural rules, and considering that the petitioner had
other available remedies (such as a petition for declaratory relief with the appropriate RTC under the terms of
Rule 63 of the Rules of Court), as in this case, we categorically ruled:
The petitioner’s unusual approaches and use of Rule 65 of the Rules of Court do not appear to us to be the result
of any error in reading Rule 65, given the way the petition was crafted. Rather, it was a backdoor approach to
achieve what the petitioner could not directly do in his individual capacity under Rule 65. It was, at the very least,
an attempted bypass of other available, albeit lengthier, modes of review that the Rules of Court provide. While
we stop short of concluding that the petitioner’s approaches constitute an abuse of process through a
manipulative reading and application of the Rules of Court, we nevertheless resolve that the petition should be
dismissed for its blatant violation of the Rules. The transgressions alleged in a petition, however weighty they may
sound, cannot be justifications for blatantly disregarding the rules of procedure, particularly when remedial
measures were available under these same rules to achieve the petitioner’s objectives. For our part, we cannot
and should not – in the name of liberality and the "transcendental importance" doctrine – entertain these types of
petitions. As we held in the very recent case of Lozano, et al. vs. Nograles, albeit from a different perspective, our
liberal approach has its limits and should not be abused. 23 [emphasis supplied]
B. Petitioner lacks locus standi.
"Locus standi  or legal standing has been defined as a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The
gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions."24 This requirement of standing relates to the constitutional
mandate that this Court settle only actual cases or controversies. 25
Thus, as a general rule, a party is allowed to "raise a constitutional question" when (1) he can show that he will
personally suffer some actual or threatened injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable
action.26
Jurisprudence defines interest as "material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest. By real interest is meant a
present substantial interest, as distinguished from a mere expectancy or a future, contingent, subordinate, or
consequential interest."27
To support his claim that he has locus standi to file the present petition, the petitioner contends that as an
employee of PhilHealth, he "stands to be prejudiced by [EO] 7, which suspends or imposes a moratorium on the
grants of salary increases or new or increased benefits to officers and employees of GOCC[s] and x x x curtail[s]
the prerogative of those officers who are to fix and determine his compensation." 28 The petitioner also claims that
he has standing as a member of the bar in good standing who has an interest in ensuring that laws and orders of
the Philippine government are legally and validly issued and implemented.
The respondents meanwhile argue that the petitioner is not a real party-in-interest since future increases in
salaries and other benefits are merely contingent events or expectancies. 29 The petitioner, too, is not asserting a
public right for which he is entitled to seek judicial protection. Section 9 of EO 7 reads:
Section 9. Moratorium on Increases in Salaries, Allowances, Incentives and Other Benefits. –Moratorium on
increases in the rates of salaries, and the grant of new increases in the rates of allowances, incentives and other
benefits, except salary adjustments pursuant to Executive Order No. 8011 dated June 17, 2009 and Executive
Order No. 900 dated June 23, 2010, are hereby imposed until specifically authorized by the President. [emphasis
ours]
In the present case, we are not convinced that the petitioner has demonstrated that he has a personal stake or
material interest in the outcome of the case because his interest, if any, is speculative and based on a mere
expectancy. In this case, the curtailment of future increases in his salaries and other benefits cannot but be
characterized as contingent events or expectancies. To be sure, he has no vested rights to salary increases and,
therefore, the absence of such right deprives the petitioner of legal standing to assail EO 7.
It has been held that as to the element of injury, such aspect is not something that just anybody with some
grievance or pain may assert. It has to be direct and substantial to make it worth the court’s time, as well as the
effort of inquiry into the constitutionality of the acts of another department of government. If the asserted injury is
more imagined than real, or is merely superficial and insubstantial, then the courts may end up being importuned
to decide a matter that does not really justify such an excursion into constitutional adjudication. 30 The rationale for
this constitutional requirement of locus standi is by no means trifle. Not only does it assure the vigorous adversary
presentation of the case; more importantly, it must suffice to warrant the Judiciary’s overruling the determination of
a coordinate, democratically elected organ of government, such as the President, and the clear approval by
Congress, in this case. Indeed, the rationale goes to the very essence of representative democracies. 31
Neither can the lack of locus standi be cured by the petitioner’s claim that he is instituting the present petition as a
member of the bar in good standing who has an interest in ensuring that laws and orders of the Philippine
government are legally and validly issued. This supposed interest has been branded by the Court in Integrated
Bar of the Phils. (IBP) v. Hon. Zamora,32 "as too general an interest which is shared by other groups and [by] the
whole citizenry."33 Thus, the Court ruled in IBP that the mere invocation by the IBP of its duty to preserve the rule
of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in that case. The Court
made a similar ruling in Prof. David v. Pres. Macapagal-Arroyo 34 and held that the petitioners therein, who are
national officers of the IBP, have no legal standing, having failed to allege any direct or potential injury which the
IBP, as an institution, or its members may suffer as a consequence of the issuance of Presidential Proclamation
No. 1017 and General Order No. 5.35
We note that while the petition raises vital constitutional and statutory questions concerning the power of the
President to fix the compensation packages of GOCCs and GFIs with possible implications on their officials and
employees, the same cannot "infuse" or give the petitioner locus standi under the transcendental importance or
paramount public interest doctrine. In Velarde v. Social Justice Society, 36 we held that even if the Court could have
exempted the case from the stringent locus standi requirement, such heroic effort would be futile because the
transcendental issue could not be resolved any way, due to procedural infirmities and shortcomings, as in the
present case.37 In other words, giving due course to the present petition which is saddled with formal and
procedural infirmities explained above in this Resolution, cannot but be an exercise in futility that does not merit
the Court’s liberality. As we emphasized in Lozano v. Nograles, 38 "while the Court has taken an increasingly liberal
approach to the rule of locus standi, evolving from the stringent requirements of ‘personal injury’ to the broader
‘transcendental importance’ doctrine, such liberality is not to be abused." 39
Finally, since the petitioner has failed to demonstrate a material and personal interest in the issue in dispute, he
cannot also be considered to have filed the present case as a representative of PhilHealth. In this regard, we
cannot ignore or excuse the blatant failure of the petitioner to provide a Board Resolution or a Secretary’s
Certificate from PhilHealth to act as its representative.
C. The petition has a defective jurat.
The respondents claim that the petition should be dismissed for failing to comply with Section 3, Rule 7 of the
Rules of Civil Procedure, which requires the party or the counsel representing him to sign the pleading and
indicate an address that should not be a post office box. The petition also allegedly violated the Supreme Court
En Banc Resolution dated November 12, 2001, requiring counsels to indicate in their pleadings their Roll of
Attorneys Number, their PTR Number and their IBP Official Receipt or Lifetime Member Number; otherwise, the
pleadings would be considered unsigned and dismissible. Bar Matter No. 1922 likewise states that a counsel
should note down his MCLE Certificate of Compliance or Certificate of Exemption in the pleading, but the
petitioner had failed to do so.40
We do not see any violation of Section 3, Rule 7 of the Rules of Civil Procedure as the petition bears the
petitioner’s signature and office address. The present suit was brought before this Court by the petitioner himself
as a party litigant and not through counsel. Therefore, the requirements under the Supreme Court En Banc
Resolution dated November 12, 2001 and Bar Matter No. 1922 do not apply. In Bar Matter No. 1132, April 1,
2003, we clarified that a party who is not a lawyer is not precluded from signing his own pleadings as this is
allowed by the Rules of Court; the purpose of requiring a counsel to indicate his IBP Number and PTR Number is
merely to protect the public from bogus lawyers. A similar construction should be given to Bar Matter No. 1922,
which requires lawyers to indicate their MCLE Certificate of Compliance or Certificate of Exemption; otherwise,
the provision that allows parties to sign their own pleadings will be negated.
However, the point raised by the respondents regarding the petitioner’s defective jurat is correct. Indeed, A.M. No.
02-8-13-SC, dated February 19, 2008, calls for a current identification document issued by an official agency
bearing the photograph and signature of the individual as competent evidence of identity. Nevertheless, we
hasten to clarify that the defective jurat in the Verification/Certification of Non-Forum Shopping is not a fatal
defect, as we held in In-N-Out Burger, Inc. v. Sehwani, Incorporated. 41 The verification is only a formal, not a
jurisdictional, requirement that the Court may waive.
D. The petition has been mooted by supervening events.
Because of the transitory nature of EO 7, it has been pointed out that the present case has already been rendered
moot by these supervening events: (1) the lapse on December 31, 2010 of Section 10 of EO 7 that suspended the
allowances and bonuses of the directors and trustees of GOCCs and GFIs; and (2) the enactment of R.A. No.
10149 amending the provisions in the charters of GOCCs and GFIs empowering their board of directors/trustees
to determine their own compensation system, in favor of the grant of authority to the President to perform this act.
With the enactment of the GOCC Governance Act of 2011, the President is now authorized to fix the
compensation framework of GOCCs and GFIs. The pertinent provisions read:
Section 5. Creation of the Governance Commission for Government-Owned or -Controlled Corporations. — There
is hereby created an advisory, monitoring, and oversight body with authority to formulate, implement and
coordinate policies to be known as the Governance Commission for Government-Owned or-Controlled
Corporations, hereinafter referred to as the GCG, which shall be attached to the Office of the President. The GCG
shall have the following powers and functions:
xxxx
h) Conduct compensation studies, develop and recommend to the President a competitive compensation and
remuneration system which shall attract and retain talent, at the same time allowing the GOCC to be financially
sound and sustainable;
xxxx
Section 8. Coverage of the Compensation and Position Classification System. — The GCG, after conducting a
compensation study, shall develop a Compensation and Position Classification System which shall apply to all
officers and employees of the GOCCs whether under the Salary Standardization Law or exempt therefrom and
shall consist of classes of positions grouped into such categories as the GCG may determine, subject to approval
of the President.
Section 9. Position Titles and Salary Grades. — All positions in the Positions Classification System, as determined
by the GCG and as approved by the President, shall be allocated to their proper position titles and salary grades
in accordance with an Index of Occupational Services, Position Titles and Salary Grades of the Compensation
and Position Classification System, which shall be prepared by the GCG and approved by the President.
xxxx
[N]o GOCC shall be exempt from the coverage of the Compensation and Position Classification System
developed by the GCG under this Act.
As may be gleaned from these provisions, the new law amended R.A. No. 7875 and other laws that enabled
certain GOCCs and GFIs to fix their own compensation frameworks; the law now authorizes the President to fix
the compensation and position classification system for all GOCCs and GFIs, as well as other entities covered by
the law. This means that, the President can now reissue an EO containing these same provisions without any
legal constraints.1âwphi1
A moot case is "one that ceases to present a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value." 42 "[A]n action is considered ‘moot’ when it no longer
presents a justiciable controversy because the issues involved have become academic or dead[,] or when the
matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties x x x. Simply stated, there is nothing for the x x x court to resolve
as [its] determination x x x has been overtaken by subsequent events." 43
This is the present situation here. Congress, thru R.A. No. 10149, has expressly empowered the President to
establish the compensation systems of GOCCs and GFIs. For the Court to still rule upon the supposed
unconstitutionality of EO 7 will merely be an academic exercise. Any further discussion of the constitutionality of
EO 7 serves no useful purpose since such issue is moot in its face in light of the enactment of R.A. No. 10149. In
the words of the eminent constitutional law expert, Fr. Joaquin Bernas, S.J., "the Court normally [will not] entertain
a petition touching on an issue that has become moot because x x x there would [be] no longer x x x a ‘flesh and
blood’ case for the Court to resolve."44
All told, in view of the supervening events rendering the petition moot, as well as its patent formal and procedural
infirmities, we no longer see any reason for the Court to resolve the other issues raised in the certiorari petition.
WHEREFORE, premises considered, the petition is DISMISSED. No costs.
SO ORDERED.
Case no. 4:
SECOND DIVISION
[G.R. NO. 149719 : June 21, 2007]
MOLDEX REALTY, INC., Petitioner, v. HOUSING AND LAND USE REGULATORY BOARD, OFFICE OF
APPEALS, ADJUDICATION AND LEGAL AFFAIRS, EDITHA U. BARRAMEDA in her capacity as Regional Officer
and METROGATE COMPLEX VILLAGE HOMEOWNERS' ASSOCIATION, INC., Respondent.
DECISION
TINGA, J.:
This is a petition for prohibition and certiorari under Rule 65 of the Rules of Court, seeking the nullification of
Resolution No. R-562, series of 1994, issued by the Housing and Urban Development Coordinating Council
(HUDCC), as well as the two issuances and the writ of mandatory injunction issued by public respondent Housing
and Land Use Regulatory Board (HLURB) in connection with the implementation of the assailed Resolution.
The factual antecedents are as follows:
Petitioner Moldex Realty, Inc. is a domestic corporation engaged in real estate development. It is the owner-
developer of Metrogate Complex Phase I, a subdivision situated in Meycauayan, Marilao, Bulacan. In 1988, the
HLURB issued petitioner a License to Sell 696 parcels of land within the subdivision. In 1993, a sufficient number
of lot buyers and homeowners in the subdivision formally organized to become the Metrogate Complex Village
Homeowners' Association (respondent association).
Petitioner claims that since the completion of the subdivision, it had been subsidizing and advancing the payment
for the delivery and maintenance of common facilities including the operation of streetlights and the payment of
the corresponding electric bills. However, in 2000, petitioner decided to stop paying the electric bills for the
streetlights and advised respondent association to assume this obligation. Respondent association objected to
petitioner's resolution and refused to pay the electric bills. Thus, Meralco discontinued its service, prompting
respondent association to apply for a preliminary injunction and preliminary mandatory injunction with the HLURB
against petitioner.
On 5 April 2001, Editha U. Barrameda, in her capacity as Regional Officer of HLURB's Office of Appeals,
Adjudication and Legal Affairs, issued a Resolution granting respondent association's application for injunction. In
support of the Resolution, Barrameda cited the relevant provisions of Presidential Decree (PD) Nos. 957 and 1216
and HUDCC Resolution No. R-562, series of 1994.
HUDCC Resolution No. R-562, series of 1994, particularly provides that "subdivision owners/developers shall
continue to maintain street lights facilities and, unless otherwise stipulated in the contract, pay the bills for electric
consumption of the subdivision street lights until the facilities in the project are turned over to the local government
until after completion of development in accordance with PD 957, PD 1216 and their implementing rules and
regulations."1
Petitioner moved for reconsideration but was rebuffed in an Order dated 28 May 2001. 2 After respondent
association filed a bond, Barrameda issued a writ of preliminary mandatory injunction dated 28 June 2001
ordering petitioner to assume the obligation of paying the cost of electricity of the streetlights starting from
December 2000 until their turn over or donation to the Municipality of Meycauayan. 3
Petitioner elevated the matter to the Court of Appeals by filing a Petition for Prohibition and Certiorari, praying not
only for the reversal of the writ of preliminary mandatory injunction, as well as the Resolution dated 5 April 2001
and the Order dated 28 May 2001, but also for the nullification of HUDCC Resolution No. R-562, series of 1994,
on the ground that it is unconstitutional.
During the pendency of the petition before the Court of Appeals, the HUDCC approved Board Resolution No. R-
699, series of 2001, entitled Amending the Rules and Regulations Implementing the Subdivision and
Condominium Buyer's Protective Decree and Other Related Laws .4
On 27 August 2001, the Court of Appeals dismissed the petition on the ground that petitioner should have raised
the constitutionality of HUDCC Resolution No. R-562, series of 1994, directly to this Court. The appellate court
likewise found that no proof was submitted to show Mr. Juanito Malto's authority to execute the requisite
verification and certification against non-forum shopping in behalf of petitioner. 5
Following the Court of Appeals' pronouncement that constitutional issues should be raised directly before this
Court, petitioner instituted on 21 September 2001 an action for certiorari and prohibition.6 The petition reiterated
the prayer for the reversal of the writ of preliminary mandatory injunction, the Resolution dated 5 April 2001 and
the Order dated 28 May 2001, all issued by the HLURB and for the setting aside of HUDCC Resolution No. R-
562, series of 1994.
The instant petition is anchored on the following arguments:
1. Resolution No. 526 Series of 1994 issued by the HUDCC is unconstitutional for being a void exercise of
legislative power.
2. Public respondent gravely abused its direction in issuing the Mandatory Injunction on the basis of a void
regulation (HU[D]CC Resolution No. 526 Series of 1994).
3. Public respondent abused its discretion in not commanding that the obligation to maintain the subdivision
including the payment of the streetlight consumption belongs exclusively to private respondents. 7
In its Comment,8 respondent association brought up the tardy filing of the instant petition. It contends that the
instant petition, which assails the two HLURB issuances dated 5 April 2001 and 28 May 2001, was filed beyond
the 60-day reglementary period for filing a petition for certiorari under Rule 65 of the Rules of Court. In its opinion,
the prior filing of a petition for certiorari with the Court of Appeals did not toll the running of the 60-day period.
The Solicitor General agrees, pointing out that the instant petition, captioned as Petition for Prohibition and
Certiorari, does not assail the Decision of the Court of Appeals but the twin issuances and the writ of mandatory
injunction issued by the HLURB and, therefore, should have been filed within 60 days from petitioner's receipt on
18 June 2001 of the HLURB Order dated 28 May 2001. It appears that when reckoned from 18 June 2001, the
filing of the instant petition would go beyond the 60-day reglementary period.
Petitioner maintains, on the contrary, that it filed a petition for certiorari with the Court of Appeals within the
reglementary period, but the same was dismissed by the appellate court and "referred" to this Court, as it raised a
constitutional issue.
When an administrative regulation is attacked for being unconstitutional or invalid, a party may raise its
unconstitutionality or invalidity on every occasion that the regulation is being enforced. For the Court to exercise
its power of judicial review, the party assailing the regulation must show that the question of constitutionality has
been raised at the earliest opportunity.9 This requisite should not be taken to mean that the question of
constitutionality must be raised immediately after the execution of the state action complained of. That the
question of constitutionality has not been raised before is not a valid reason for refusing to allow it to be raised
later. A contrary rule would mean that a law, otherwise unconstitutional, would lapse into constitutionality by the
mere failure of the proper party to promptly file a case to challenge the same. 10
In the instant case, petitioner has complied with the requirement that the issue of the constitutionality of the
subject HUDCC Resolution must be timely raised. Petitioner had already raised the question of constitutionality in
its petition filed with the Court of Appeals. The alleged injury caused to petitioner as a result of the implementation
of the HUDCC Resolution is continuous in nature in that as long as the assailed resolution is effective, petitioner is
obliged to pay for the electricity cost of the streetlights. For every occasion that petitioner is directed to comply
with the assailed resolution, a new cause of action to question its validity accrues in favor of petitioner. Thus, the
instant petition is not time-barred.
The Solicitor General also points out that it is the Regional Trial Court, and not this Court nor the Court of
Appeals, which has jurisdiction to take cognizance of this original action for certiorari and prohibition,
notwithstanding Section 4, Rule 6511 of the Rules of Court.
It must be emphasized that this Court does not have exclusive  original jurisdiction over petitions assailing the
constitutionality of a law or an administrative regulation. In Drilon v. Lim,12 it was clearly stated that the lower
courts also have jurisdiction to resolve the constitutionality at the first instance, thus:
We stress at the outset that the lower court had jurisdiction to consider the constitutionality of Section 187, this
authority being embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law. x x x Moreover, Article X, Section 5(2), of the
Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all
cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question. 13
The general rule is that this Court shall exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation, except in circumstances where the Court believes that resolving
the issue of constitutionality of a law or regulation at the first instance is of paramount importance and immediately
affects the social, economic and moral well being of the people. Thus, the Court of Appeals erred in ruling that a
question on the constitutionality of a regulation may be brought only to this Court.
The instant petition does not allege circumstances and issues of transcendental importance to the public requiring
their prompt and definite resolution and the brushing aside of technicalities of procedure. Neither is the Court
convinced that the issues presented in this petition are of such nature that would nudge the lower courts to defer
to the higher judgment of this Court. The application of the assailed HUDCC resolution mainly affects the
proprietary interests of the parties involved and can hardly be characterized as overriding to the general well-
being of the people. Ultimately, the Court is called upon to resolve the question of who bears the obligation of
paying electricity cost, a question that the lower courts undoubtedly have the competence to resolve.
However, it is also a well-established rule that a court should not pass upon a constitutional question and decide a
law, or an administrative regulation as in the instant case, to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some other ground upon which the
court may raise its judgment, that course will be adopted and the
constitutional question will be left for consideration until such question will be unavoidable. 14 In other words, the
Court will not touch the issue of unconstitutionality unless it is the very lis mota of the case.15
Apart from the non-observance of the hierarchy of courts principle, a subsequent development occurred which
has not only rendered the question of constitutionality unpivotal but made the resolution of the case itself a pure
theoretical exercise. During the pendency of the petition before the Court of Appeals, Board Resolution No. 699,
series of 2001, entitled Amending the Rules and Regulations Implementing the Subdivision and Condominium
Buyer's Protective Decree and Other Related Laws, was passed by the HUDCC. The regulation amended certain
design standards for subdivision projects, among which is the proportionate obligation of subdivision homeowners
in the payment of the electricity cost of streetlights. 16 The amendatory provision has superseded the provision in
HUDCC Resolution No. R-562, series of 1994, directing subdivision developers to shoulder the electricity cost of
streetlights. At the time of the filing of the instant petition, the new provision was already in effect. That being the
situation, the instant petition has become moot and academic.
One final note. In the main, petitioner is assailing the constitutionality of Resolution No. R-562, series of 1994,
issued by the HUDCC. However, the HUDCC, although obviously an indispensable party, was not impleaded
either in the instant petition or in the petition before the Court of Appeals. An indispensable party is a party in
interest without whom no final determination can be had of an action, and who shall be joined either as plaintiffs or
defendants. The joinder of indispensable parties is mandatory. The presence of indispensable parties is
necessary to vest the court with jurisdiction, which is "the authority to hear and determine a cause, the right to act
in a case." Thus, without the presence of indispensable parties to a suit or proceeding, the judgment of a court
cannot attain real finality. The absence of an indispensable parties renders all subsequent actions of the court null
and void for want of authority to act, not only as to the absent parties but even as to those present. 17 That is why
the case is generally remanded to the court of origin for further proceedings. In this case, however, remand is not
feasible because the initial action has to be discarded for failure to observe the hierarchy of courts principle.
WHEREFORE, the instant petition is DISMISSED. Costs against petitioner.
SO ORDERED.
Case no. 5:
EN BANC
[G.R. NO. 167614 : March 24, 2009]
ANTONIO M. SERRANO, Petitioner, v. Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO.,
INC., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their
earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They
have woven together the world by transmitting ideas and knowledge from country to country. They have provided
the dynamic human link between cultures, societies and economies. Yet, only recently have we begun to
understand not only how much international migration impacts development, but how smart public policies can
magnify this effect.
United Nations Secretary-General Ban Ki-Moon
Global Forum on Migration and Development
Brussels, July 10, 20071 August 01/31, 1998 2,590.00
For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section 10, Republic
Act (R.A.) No. 8042,2 to wit: Sept. 01/30, 1998 2,590.00
Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized Oct. 01/31, 1998 2,590.00
cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee
with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment Nov. 01/30, 1998 2,590.00
contract or for three (3) months for every year of the unexpired term, whichever is less . Dec. 01/31, 1998 2,590.00
x x x x (Emphasis and underscoring supplied)cralawlibrary
does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates Jan. 01/31, 1999 2,590.00
the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum
Feb. 01/28, 1999 2,590.00
salary either for the unexpired portion of their employment contract "or for three months for every year of the
unexpired term, whichever is less" (subject clause). Petitioner claims that the last clause violates the OFWs' Mar. 1/19, 1999 (19 days) incl. leave pay 1,640.00
constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them
due process. ---------------
By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8, 2004 ---------------
Decision3 and April 1, 2005 Resolution4 of the Court of Appeals (CA), which applied the subject clause, entreating ---------------
this Court to declare the subject clause unconstitutional. ---------------
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a ---------------
Philippine Overseas Employment Administration (POEA)-approved Contract of Employment with the following -----
terms and conditions: 25,382.23
Duration of contract 12 months
Amount adjusted to chief mate's salary
Position Chief Officer
(March 19/31, 1998 to April 1/30, 1998) + 1,060.5010
Basic monthly salary US$1,400.00
---------------
Hours of work 48.0 hours per week ---------------
---------------
Overtime US$700.00 per month ---------------
Vacation leave with pay 7.00 days per month5 ---------------
---------------
On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment ----
contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and
representation of respondents that he would be made Chief Officer by the end of April 1998. 6 TOTAL CLAIM US$ 26,442.7311
Respondents did not deliver on their promise to make petitioner Chief Officer. 7 Hence, petitioner refused to stay as well as moral and exemplary damages and attorney's fees.
on as Second Officer and was repatriated to the Philippines on May 26, 1998. 8 The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him
Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but monetary benefits, to wit:
at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant
contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days. (petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to
Petitioner filed with the Labor Arbiter (LA) a Complaint 9 against respondents for constructive dismissal and for pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange
payment of his money claims in the total amount of US$26,442.73, broken down as follows: prevailing at the time of payment, the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S.
May 27/31, 1998 (5 days) incl. Leave pay US$ 413.90 DOLLARS (US $8,770.00), representing the complainant's salary for three (3) months of the unexpired portion of
the aforesaid contract of employment.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
June 01/30, 1998 2,590.00 The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine
July 01/31, 1998 2,590.00 Currency, based on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S.
DOLLARS (US$ 45.00),12 representing the complainant's claim for a salary differential. In addition, the
respondents are hereby ordered to pay the complainant, jointly and severally, in Philippine Currency, at the
exchange rate prevailing at the time of payment, the complainant's (petitioner's) claim for attorney's fees
equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee under this Decision.
The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit.
All other claims are hereby DISMISSED.
SO ORDERED.13 (Emphasis supplied)cralawlibrary
In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of
three months only - - rather than the entire unexpired portion of nine months and 23 days of petitioner's
employment contract - applying the subject clause. However, the LA applied the salary rate of US$2,590.00,
consisting of petitioner's "[b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, +
US$490.00/month, vacation leave pay = US$2,590.00/compensation per month." 14
Respondents appealed15 to the National Labor Relations Commission (NLRC) to question the finding of the LA
that petitioner was illegally dismissed.
Petitioner also appealed16 to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court
in Triple Integrated Services, Inc. v. National Labor Relations Commission 17 that in case of illegal dismissal,
OFWs are entitled to their salaries for the unexpired portion of their contracts. 18
In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay
complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment
the following:
1. Three (3) months salary
$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorney's fees 424.50
TOTAL US$4,669.50
The other findings are affirmed.
SO ORDERED.19
The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the
applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide for the award
of overtime pay, which should be proven to have been actually performed, and for vacation leave pay." 20
Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the subject
clause.21 The NLRC denied the motion.22
Petitioner filed a Petition for Certiorari23 with the CA, reiterating the constitutional challenge against the subject
clause.24 After initially dismissing the petition on a technicality, the CA eventually gave due course to it, as directed
by this Court in its Resolution dated August 7, 2003 which granted the Petition for Certiorari, docketed as G.R. No.
151833, filed by petitioner.
In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary
rate; however, the CA skirted the constitutional issue raised by petitioner. 25
His Motion for Reconsideration26 having been denied by the CA,27 petitioner brings his cause to this Court on the
following grounds:
I
The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable
decision of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the
unexpired portion of his contract of employment instead of limiting it to three (3) months
II
In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of
Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to
discharge its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme
Court, particularly, the constitutional issues raised by the petitioner on the constitutionality of said law, which
unreasonably, unfairly and arbitrarily limits payment of the award for back wages of overseas workers to three (3)
months.
III
Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals
gravely erred in law in excluding from petitioner's award the overtime pay and vacation pay provided in his
contract since under the contract they form part of his salary. 28
On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he
intends to make use of the monetary award for his medical treatment and medication. 29 Required to comment,
counsel for petitioner filed a motion, urging the court to allow partial execution of the undisputed monetary award
and, at the same time, praying that the constitutional question be resolved. 30
Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the
petition mindful of the extreme importance of the constitutional question raised therein.
On the first and second issues
The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed.
Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains
disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal
dismissal.
Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate
of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of
his employment contract or a total of US$4,200.00.
Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00
awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to
his salaries for the entire nine months and 23 days left of his employment contract, computed at the monthly rate
of US$2,590.00.31
The Arguments of Petitioner
Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to
negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed
salary package.32 It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino
workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of
illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is
declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the
two groups;33 and that it defeats Section 18,34 Article II of the Constitution which guarantees the protection of the
rights and welfare of all Filipino workers, whether deployed locally or overseas. 35
Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing
jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are conflicting rulings on
this, petitioner urges the Court to sort them out for the guidance of affected OFWs. 36
Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose
but to benefit local placement agencies. He marks the statement made by the Solicitor General in his
Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that
jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its
obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily
penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution
in deploying Filipino migrant workers, liability for money claims was reduced under Section 10 of R.A. No.
8042. 37 (Emphasis supplied)cralawlibrary
Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the
well-being of OFWs. Not only that, the provision makes foreign employers better off than local employers because
in cases involving the illegal dismissal of employees, foreign employers are liable for salaries covering a maximum
of only three months of the unexpired employment contract while local employers are liable for the full lump-sum
salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the amount of backwages they have to give
their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the
matter. On the other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers
the maximum of three (3) months unpaid salaries notwithstanding the unexpired term of the contract that can be
more than three (3) months.38
Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries
and other emoluments he is entitled to under his fixed-period employment contract. 39
The Arguments of Respondents
In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained,
for this was belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity,
which was when he filed an appeal before the NLRC. 40
The Arguments of the Solicitor General
The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could
not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's
contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on
the matter of money claims, as this was not stipulated upon by the parties. 42
Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment,
such that their rights to monetary benefits must necessarily be treated differently. The OSG enumerates the
essential elements that distinguish OFWs from local workers: first, while local workers perform their jobs within
Philippine territory, OFWs perform their jobs for foreign employers, over whom it is difficult for our courts to
acquire jurisdiction, or against whom it is almost impossible to enforce judgment; and second, as held in Coyoca
v. National Labor Relations Commission43 and Millares v. National Labor Relations Commission,44 OFWs are
contractual employees who can never acquire regular employment status, unlike local workers who are or can
become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local workers,
but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the differentiated
treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision
does not violate the equal protection clause nor Section 18, Article II of the Constitution. 45
Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate
the solidary liability of placement agencies for this "redounds to the benefit of the migrant workers whose welfare
the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government
that migrant workers are properly deployed and are employed under decent and humane conditions." 46
The Court's Ruling
The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the
Congress, it does so only when these conditions obtain: (1) that there is an actual case or controversy involving a
conflict of rights susceptible of judicial determination; 47 (2) that the constitutional question is raised by a proper
party48 and at the earliest opportunity;49 and (3) that the constitutional question is the very lis mota of the
case,50 otherwise the Court will dismiss the case or decide the same on some other ground. 51
Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally
aggrieved that the labor tribunals and the CA computed his monetary award based on the salary period of three
months only as provided under the subject clause.
The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional
issue be raised at the earliest opportunity entails the interposition of the issue in the pleadings before a competent
court, such that, if the issue is not raised in the pleadings before that competent court, it cannot be considered at
the trial and, if not considered in the trial, it cannot be considered on appeal. 52 Records disclose that the issue on
the constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his
Motion for Partial Reconsideration with said labor tribunal, 53 and reiterated in his Petition for Certiorari before the
CA.54 Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the
competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial
function - its function in the present case is limited to determining questions of fact to which the legislative policy of
R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the
law itself;55 thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the
validity of its provisions. The CA, on the other hand, is vested with the power of judicial review or the power to
declare unconstitutional a law or a provision thereof, such as the subject clause. 56 Petitioner's interposition of the
constitutional issue before the CA was undoubtedly seasonable. The CA was therefore remiss in failing to take up
the issue in its decision.
The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because
the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his 12-month
employment contract, and not just for a period of three months, strikes at the very core of the subject clause.
Thus, the stage is all set for the determination of the constitutionality of the subject clause.
Does the subject clause violate Section 10,
Article III of the Constitution on non-impairment
of contracts?
The answer is in the negative.
Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his
employment and the fixed salary package he will receive 57 is not tenable.
Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed.
The prohibition is aligned with the general principle that laws newly enacted have only a prospective
operation,58 and cannot affect acts or contracts already perfected; 59 however, as to laws already in existence, their
provisions are read into contracts and deemed a part thereof. 60 Thus, the non-impairment clause under Section
10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts
or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto.
As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the
employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042,
particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties
executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A.
No. 8042.
But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on
the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power
of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs,
with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be
employed.61 Police power legislations adopted by the State to promote the health, morals, peace, education, good
order, safety, and general welfare of the people are generally applicable not only to future contracts but even to
those already in existence, for all private contracts must yield to the superior and legitimate measures taken by
the State to promote public welfare.62
Does the subject clause violate Section 1,
Article III of the Constitution, and Section 18,
Article II and Section 3, Article XIII on labor
as a protected sector?
The answer is in the affirmative.
Section 1, Article III of the Constitution guarantees:
No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied
the equal protection of the law.
Section 18,63 Article II and Section 3,64 Article XIII accord all members of the labor sector, without distinction as to
place of deployment, full protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic
security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all
monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws
which is enjoyed by, or spared the burden imposed on, others in like circumstances. 65
Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a
system of classification into its legislation; however, to be valid, the classification must comply with these
requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not
limited to existing conditions only; and 4) it applies equally to all members of the class. 66
There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a
law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be
rationally related to serving a legitimate state interest; 67 b) the middle-tier or intermediate scrutiny in which the
government must show that the challenged classification serves an important state interest and that the
classification is at least substantially related to serving that interest; 68 and c) strict judicial scrutiny69 in which a
legislative classification which impermissibly interferes with the exercise of a fundamental right 70 or operates to the
peculiar disadvantage of a suspect class71 is presumed unconstitutional, and the burden is upon the government
to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.72
Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications 73 based on race74 or
gender75 but not when the classification is drawn along income categories. 76
It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee Association,
Inc. v. Bangko Sentral ng Pilipinas,77 the constitutionality of a provision in the charter of the Bangko Sentral ng
Pilipinas (BSP), a government financial institution (GFI), was challenged for maintaining its rank-and-file
employees under the Salary Standardization Law (SSL), even when the rank-and-file employees of other GFIs
had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a
suspect classification based on salary grade, the Court deliberately employed the standard of strict judicial
scrutiny in its review of the constitutionality of said provision. More significantly, it was in this case that the Court
revealed the broad outlines of its judicial philosophy, to wit:
Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded
recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference
stops where the classification violates a fundamental right, or prejudices persons accorded special protection by
the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational
basis should not suffice.
Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter
judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and
authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to
support many of our decisions. We should not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our own decisions through the employment of
our own endowments. We live in a different ambience and must decide our own problems in the light of our own
interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of
law and justice. Our laws must be construed in accordance with the intention of our own lawmakers and such
intent may be deduced from the language of each law and the context of other local legislation related thereto.
More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all
our laws. And it need not be stressed that our public interest is distinct and different from others.
xxx
Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of effective
judicial intervention.
Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims
"equality" as an ideal precisely in protest against crushing inequities in Philippine society. The command to
promote social justice in Article II, Section 10, in "all phases of national development," further explicitated in Article
XIII, are clear commands to the State to take affirmative action in the direction of greater equality. x x x [T]here is
thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a
reasonable measure of equality.
Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups
of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the
interests of the working class on the humane justification that those with less privilege in life should have more in
law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the
humanization of laws and the equalization of social and economic forces by the State so that justice in its rational
and objectively secular conception may at least be approximated.
xxx
Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality,
recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be
based on the "rational basis" test, and the legislative discretion would be given deferential treatment.
But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice
against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A
weak and watered down view would call for the abdication of this Court's solemn duty to strike down any law
repugnant to the Constitution and the rights it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will
be struck down regardless of the character or nature of the actor.
xxx
In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It
is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or
are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3)
the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates months for every year of the unexpired term, whichever is less.
of the SSL while employees higher in rank - possessing higher and better education and opportunities for career In the case at bar, the unexpired portion of private respondent's employment contract is eight (8) months. Private
advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not respondent should therefore be paid his basic salary corresponding to three (3) months or a total of SR3,600. 82
all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission  (Third Division,
terms of job marketability, it is they - and not the officers - who have the real economic and financial need for the December 1998),83 which involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-
adjustment . This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate month contract, which was deemed renewed for another 12 months. After serving for one year and seven-and-a-
social services, extend to them a decent standard of living, and improve the quality of life for all." Any act of half months, respondent Osdana was illegally dismissed, and the Court awarded her salaries for the entire
Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can unexpired portion of four and one-half months of her contract.
pass muster. (Emphasis supplied)cralawlibrary The Marsaman  interpretation of Section 10(5) has since been adopted in the following cases:
Imbued with the same sense of "obligation to afford protection to labor," the Court in the present case also
Case Title Contract Period of Unexpired Period Period Applied in
employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification
Period Service the Computation of
prejudicial to OFWs.
the Monetary
Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer
Award
examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs
at two levels: Skippers v. 6 months 2 months 4 months 4 months
First, OFWs with employment contracts of less than one year vis - Ã -vis OFWs with employment contracts of one Maguad84
year or more;
Second, among OFWs with employment contracts of more than one year; and Bahia Shipping 9 months 8 months 4 months 4 months
Third, OFWs vis - Ã -vis local workers with fixed-period employment; v. Reynaldo
OFWs with employment contracts of less than one year vis - Ã -vis OFWs with employment contracts of one year Chua 85
or more
Centennial 9 months 4 months 5 months 5 months
As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v. National Labor Relations
Transmarine v.
Commission79 (Second Division, 1999) that the Court laid down the following rules on the application of the
dela Cruz l86
periods prescribed under Section 10(5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed Talidano v. 12 months 3 months 9 months 3 months
overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three Falcon87
(3) months' salary for every year of the unexpired term, whichever is less, comes into play only when the
employment contract concerned has a term of at least one (1) year or more.  This is evident from the words "for Univan v. CA 88 12 months 3 months 9 months 3 months
every year of the unexpired term" which follows the words "salaries x x x for three months."
To follow petitioners' thinking that private respondent is entitled to three (3) months salary only simply because it Oriental v. CA 89 12 months more than 2 10 months 3 months
is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to months
some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should PCL v. NLRC90 12 months more than 2 more or less 9 3 months
be taken that every part or word thereof be given effect since the law-making body is presumed to know the months months
meaning of the words employed in the statue and to have used them advisedly. Ut res magis valeat quam
pereat.80 (Emphasis supplied)cralawlibrary Olarte v. 12 months 21 days 11 months and 9 3 months
In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded Nayona91 days
his salaries for the remaining 8 months and 6 days of his contract.
Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10(5). JSS v. .Ferrer92 12 months 16 days 11 months and 24 3 months
One was Asian Center for Career and Employment System and Services v. National Labor Relations days
Commission  (Second Division, October 1998),81 which involved an OFW who was awarded a two-year
Pentagon v. 12 months 9 months and 2 months and 23 2 months and 23
employment contract, but was dismissed after working for one year and two months. The LA declared his
Adelantar93 7 days days days
dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion
of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months' salary, this Phil. Employ v. 12 months 10 months 2 months Unexpired portion
being the lesser value, to wit:
 Paramio, et al.94 EDI v. NLRC, et 2 years 5 months 19 months 19 months
al.102
Flourish 2 years 26 days 23 months and 4 6 months or 3
Maritime v. days months for each Barros v. NLRC, 12 months 4 months 8 months 8 months
Almanzor 95 year of contract et al.103

Athenna 1 year, 10 1 month 1 year, 9 months 6 months or 3 Philippine 12 months 6 months and 5 months and 5 months and 18 days
Manpower v. months and and 28 days months for each Transmarine v. 22 days 18 days
Villanos 96 28 days year of contract Carilla104
As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof,
includes OFWs with fixed-period employment contracts of less than one year; in case of illegal dismissal, they are were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims
entitled to their salaries for the entire unexpired portion of their contract. The second category consists of OFWs were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of
with fixed-period employment contracts of one year or more; in case of illegal dismissal, they are entitled to their employment contracts.
monetary award equivalent to only 3 months of the unexpired portion of their contracts. The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money
The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent OFW claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category
worked for only 2 months out of his 6-month contract, but was awarded his salaries for the remaining 4 months. In whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage
contrast, the respondent OFWs in Oriental and PCL who had also worked for about 2 months out of their 12- of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof,
month contracts were awarded their salaries for only 3 months of the unexpired portion of their contracts. Even whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's
the OFWs involved in Talidano  and Univan  who had worked for a longer period of 3 months out of their 12-month unexpired contracts fall short of one year.
contracts before being illegally dismissed were awarded their salaries for only 3 months. Among OFWs With Employment Contracts of More Than One Year
To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the
contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an employment accuracy of the Marsaman interpretation.
contract of 15 months with the same monthly salary rate of US$1,000.00. Both commenced work on the same day The Court notes that the subject clause "or for three (3) months for every year of the unexpired term, whichever is
and under the same employer, and were illegally dismissed after one month of work. Under the subject clause, less" contains the qualifying phrases "every year" and "unexpired term." By its ordinary meaning, the word "term"
OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, means a limited or definite extent of time.105 Corollarily, that "every year" is but part of an "unexpired term" is
whereas OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired significant in many ways: first, the unexpired term must be at least one year, for if it were any shorter, there would
portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as the be no occasion for such unexpired term to be measured by every year ; and second, the original term must be
US$3,000.00 is the lesser amount. more than one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year.
The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the Consequently, the more decisive factor in the determination of when the subject clause "for three (3) months
effectivity of R.A. No. 8042 on July 14, 1995,97 illegally dismissed OFWs, no matter how long the period of their for every year of the unexpired term, whichever is less" shall apply is not the length of the original contract period
employment contracts, were entitled to their salaries for the entire unexpired portions of their contracts. The matrix as held in Marsaman,106 but the length of the unexpired portion of the contract period - - the subject clause applies
below speaks for itself: in cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that
the original contract period be more than one year.
Case Title Contract Period of Unexpired Period Applied in the
Period Service Period Computation of the Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods
Monetary Award are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be
entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one
ATCI v. CA, et 2 years 2 months 22 months 22 months year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits
al.98 limited to their salaries for three months only.
To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes
Phil. Integrated 2 years 7 days 23 months 23 months and 23 days hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of US$1,000.00 per month.
v. NLRC99 and 23 days OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th month. Considering that there is at least
12 months remaining in the contract period of OFW-C, the subject clause applies to the computation of the latter's
JGB v. NLC100 2 years 9 months 15 months 15 months monetary benefits. Thus, OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12
Agoy v. NLRC101 2 years 2 months 22 months 22 months months unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3
months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared from the effects
of the subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be entitled
to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion.
OFWs vis - Ã -vis Local Workers
With Fixed-Period Employment
As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally
dismissed OFWs was in place. This uniform system was applicable even to local workers with fixed-term
employment.107
The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of Commerce
(1888),108 to wit:
Article 299. If the contracts between the merchants and their shop clerks and employees should have been made
of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from the
fulfillment of said contract until the termination of the period agreed upon.
Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the
provisions contained in the following articles.
In Reyes v. The Compañia Maritima,109 the Court applied the foregoing provision to determine the liability of a
shipping company for the illegal discharge of its managers prior to the expiration of their fixed-term employment.
The Court therein held the shipping company liable for the salaries of its managers for the remainder of their fixed-
term employment.
There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which
provides:
Article 605. If the contracts of the captain and members of the crew with the agent should be for a definite period
or voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination
in serious matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by
malice or manifest or proven negligence.
Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie, 110 in
which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally
dismissed employees for the entire unexpired portion of their employment contracts.
While Article 605 has remained good law up to the present, 111 Article 299 of the Code of Commerce was replaced
by Art. 1586 of the Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain work
cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract. ( Emphasis supplied.)
Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or" in Article 1586 as a conjunctive "and" so
as to apply the provision to local workers who are employed for a time certain although for no particular skill. This
interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel de France Company. 113 And in both
Lemoine and Palomar, the Court adopted the general principle that in actions for wrongful discharge founded on
Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to
them by the terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v.
Gay114 held:
The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the
contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other
employment of the same kind in the same community, for the purpose of reducing the damages resulting from
such wrongful discharge. However, while this is the general rule, the burden of showing that he failed to make an
effort to secure other employment of a like nature, and that other employment of a like nature was obtainable, is
upon the defendant. When an employee is wrongfully discharged under a contract of employment his prima
facie damage is the amount which he would be entitled to had he continued in such employment until the
termination of the period. (Howard v. Daly, 61 N. Y., 362; Allen v. Whitlark, 99 Mich., 492; Farrell v. School District
No. 2, 98 Mich., 43.)115 (Emphasis supplied)cralawlibrary
On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment: Section 2
(Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of
Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil Code of 1889, the new provisions of the
Civil Code do not expressly provide for the remedies available to a fixed-term worker who is illegally discharged.
However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich, 117 the Court carried over the principles on
the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case
involving the illegal discharge of a local worker whose fixed-period employment contract was entered into in 1952,
when the new Civil Code was already in effect.118
More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixed-term
employment contracts were illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v.
Ople,119 involving seafarers who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National
Labor Relations Commission,120 an OFW who was illegally dismissed prior to the expiration of her fixed-period
employment contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her
contract. The Court arrived at the same ruling in Anderson v. National Labor Relations Commission, 121 which
involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed
after only nine months on the job - - the Court awarded him salaries corresponding to 15 months, the unexpired
portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission, 122 a Filipino
working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month
contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations
Commission,123 an OFW whose 12-month contract was illegally cut short in the second month was declared
entitled to his salaries for the remaining 10 months of his contract.
In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally
discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to
their salaries for the entire unexpired portions of their contracts.  But with the enactment of R.A. No. 8042,
specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or
more in their employment contract have since been differently treated in that their money claims are subject to a
3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment.
The Court concludes that the subject clause contains a suspect classification in that, in the computation of the
monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of
OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or
local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens
it with a peculiar disadvantage.
There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now
subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest
through the least restrictive means.
What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the
Constitution and calibrated by history.124 It is akin to the paramount interest of the state 125 for which some
individual liberties must give way, such as the public interest in safeguarding health or maintaining medical
standards,126 or in maintaining access to information on matters of public concern. 127
In the present case, the Court dug deep into the records but found no compelling state interest that the subject
clause may possibly serve.
The OSG defends the subject clause as a police power measure "designed to protect the employment of Filipino
seafarers overseas x x x. By limiting the liability to three months [sic], Filipino seafarers have better chance of
getting hired by foreign employers." The limitation also protects the interest of local placement agencies, which
otherwise may be made to shoulder millions of pesos in "termination pay." 128
The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that
jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its
obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily
penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution
in deploying Filipino migrant workers, liability for money are reduced under Section 10 of RA 8042.
This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote.
The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly
deployed and are employed under decent and humane conditions. 129 (Emphasis supplied)cralawlibrary
However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state
interest sought to be served by the subject clause.
The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House
Bill No. 14314 (HB 14314), from which the law originated; 130 but the speech makes no reference to the underlying
reason for the adoption of the subject clause. That is only natural for none of the 29 provisions in HB 14314
resembles the subject clause.
On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:
Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National
Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within
ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee
relationship or by virtue of the complaint, the claim arising out of an employer-employee relationship or by virtue of
any law or contract involving Filipino workers for overseas employment including claims for actual, moral,
exemplary and other forms of damages.
The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be
joint and several.
Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under
this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment
payments, if applicable, to satisfy any such compromise or voluntary settlement shall not be more than two (2)
months. Any compromise/voluntary agreement in violation of this paragraph shall be null and void.
Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the
responsible officials to any or all of the following penalties:
(1) The salary of any such official who fails to render his decision or resolution within the prescribed period shall
be, or caused to be, withheld until the said official complies therewith;
(2) Suspension for not more than ninety (90) days; or
(3) Dismissal from the service with disqualification to hold any appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such
official may have incurred under other existing laws or rules and regulations as a consequence of violating the
provisions of this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims.
A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as
the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the
transcripts of the "Bicameral Conference Committee (Conference Committee) Meetings on the Magna Carta on
OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However, the Court finds no
discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of
the subject clause.
In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest
that would justify the perpetuation of the discrimination against OFWs under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs
by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be
rejected. There can never be a justification for any form of government action that alleviates the burden of one
sector, but imposes the same burden on another sector, especially when the favored sector is composed of
private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose
protection no less than the Constitution commands. The idea that private business interest can be elevated to the
level of a compelling state interest is odious.
Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-a-
vis their foreign principals, there are mechanisms already in place that can be employed to achieve that purpose
without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas
Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who
default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary
measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations
Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative
disciplinary measures against erring foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement
agencies in enforcing the solidary liability of their foreign principals.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner
and other OFWs to equal protection.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the
subject clause from the lone perspective that the clause directly violates state policy on labor under Section
3,131 Article XIII of the Constitution.
While all the provisions of the 1987 Constitution are presumed self-executing, 132 there are some which this Court
has declared not judicially enforceable, Article XIII being one,133 particularly Section 3 thereof, the nature of which,
this Court, in Agabon v. National Labor Relations Commission, 134 has described to be not self-actuating:
Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing
in the sense that these are automatically acknowledged and observed without need for any enabling legislation.
However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights
embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. The
espousal of such view presents the dangerous tendency of being overbroad and exaggerated. The guarantees of
"full protection to labor" and "security of tenure", when examined in isolation, are facially unqualified, and the
broadest interpretation possible suggests a blanket shield in favor of labor against any form of removal regardless
of circumstance. This interpretation implies an unimpeachable right to continued employment-a utopian notion,
doubtless-but still hardly within the contemplation of the framers. Subsequent legislation is still needed to define
the parameters of these guaranteed rights to ensure the protection and promotion, not only the rights of the labor
sector, but of the employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss,
formulating their own conclusion to approximate at least the aims of the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable right  to
stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As
manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative
enactments for their enforceability.135 (Emphasis added)
Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of
which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of
litigation to every worker or union over every conceivable violation of so broad a concept as social justice for
labor.
It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual
enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection
through executive or legislative action and judicial recognition. Its utility is best limited to being an impetus not just
for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working
class.And it was in fact consistent with that constitutional agenda that the Court in Central Bank (now Bangko
Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,  penned by then Associate Justice
now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is
premised on the perpetuation of prejudice against persons favored by the Constitution with special protection - -
such as the working class or a section thereof - - the Court may recognize the existence of a suspect classification
and subject the same to strict judicial scrutiny.
The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central Bank
Employee Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central
Bank applied Article XIII in conjunction with the equal protection clause. Article XIII, by itself, without the
application of the equal protection clause, has no life or force of its own as elucidated in Agabon.
Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to
substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid
governmental purpose.136
The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of
OFWs to their three-month salary in case of illegal dismissal, is to give them a better chance of getting hired by
foreign employers. This is plain speculation. As earlier discussed, there is nothing in the text of the law or the
records of the deliberations leading to its enactment or the pleadings of respondent that would indicate that there
is an existing governmental purpose for the subject clause, or even just a pretext of one.
The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason
that the clause violates not just petitioner's right to equal protection, but also her right to substantive due process
under Section 1,137 Article III of the Constitution.
The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of
nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of
R.A. No. 8042.
On the Third Issue
Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his
monetary award, because these are fixed benefits that have been stipulated into his contract.
Petitioner is mistaken.
The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE
Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is
understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is
compensation for all work "performed" in excess of the regular eight hours, and holiday pay is compensation for
any work "performed" on designated rest days and holidays.
By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the
computation of petitioner's monetary award, unless there is evidence that he performed work during those
periods. As the Court held in Centennial Transmarine, Inc. v. Dela Cruz,138
However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v.
National Labor Relations Commission, to wit:
The rendition of overtime work and the submission of sufficient proof that said was actually performed are
conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the
basis of 30% of the basic monthly salary. In short, the contract provision guarantees the right to overtime pay but
the entitlement to such benefit must first be established.
In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since
the same is given during the actual service of the seamen.
WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of the
unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042
is DECLARED UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the
Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired
portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00
per month.
No costs.
SO ORDERED.
Case no. 6:
EN BANC
G.R. No. 170139, August 05, 2014
SAMEER OVERSEAS PLACEMENT AGENCY, INC., Petitioner, v. JOY C. CABILES, Respondent.
DECISION
LEONEN, J.:
This case involves an overseas Filipino worker with shattered dreams. It is our duty, given the facts and the law,
to approximate justice for her.
We are asked to decide a petition for review1 on certiorari assailing the Court of Appeals’ decision 2 dated June 27,
2005. This decision partially affirmed the National Labor Relations Commission’s resolution dated March 31,
2004,3 declaring respondent’s dismissal illegal, directing petitioner to pay respondent’s three-month salary
equivalent to New Taiwan Dollar (NT$) 46,080.00, and ordering it to reimburse the NT$3,000.00 withheld from
respondent, and pay her NT$300.00 attorney’s fees.4cralawred
Petitioner, Sameer Overseas Placement Agency, Inc., is a recruitment and placement agency. 5 Responding to an
ad it published, respondent, Joy C. Cabiles, submitted her application for a quality control job in
Taiwan.6cralawred
Joy’s application was accepted.7 Joy was later asked to sign a one-year employment contract for a monthly salary
of NT$15,360.00.8 She alleged that Sameer Overseas Agency required her to pay a placement fee of P70,000.00
when she signed the employment contract.9cralawred
Joy was deployed to work for Taiwan Wacoal, Co. Ltd. (Wacoal) on June 26, 1997. 10 She alleged that in her
employment contract, she agreed to work as quality control for one year. 11 In Taiwan, she was asked to work as a
cutter.12cralawred
Sameer Overseas Placement Agency claims that on July 14, 1997, a certain Mr. Huwang from Wacoal informed
Joy, without prior notice, that she was terminated and that “she should immediately report to their office to get her
salary and passport.”13 She was asked to “prepare for immediate repatriation.”14cralawred
Joy claims that she was told that from June 26 to July 14, 1997, she only earned a total of NT$9,000. 15 According
to her, Wacoal deducted NT$3,000 to cover her plane ticket to Manila. 16cralawred
On October 15, 1997, Joy filed a complaint17 with the National Labor Relations Commission against petitioner and
Wacoal. She claimed that she was illegally dismissed.18 She asked for the return of her placement fee, the
withheld amount for repatriation costs, payment of her salary for 23 months as well as moral and exemplary
damages.19 She identified Wacoal as Sameer Overseas Placement Agency’s foreign principal. 20cralawred
Sameer Overseas Placement Agency alleged that respondent's termination was due to her inefficiency,
negligence in her duties, and her “failure to comply with the work requirements [of] her foreign [employer].” 21 The
agency also claimed that it did not ask for a placement fee of ?70,000.00. 22 As evidence, it showed Official
Receipt No. 14860 dated June 10, 1997, bearing the amount of ?20,360.00. 23 Petitioner added that Wacoal's
accreditation with petitioner had already been transferred to the Pacific Manpower & Management Services, Inc.
(Pacific) as of August 6, 1997.24 Thus, petitioner asserts that it was already substituted by Pacific
Manpower.25cralawred
Pacific Manpower moved for the dismissal of petitioner’s claims against it. 26 It alleged that there was no employer-
employee relationship between them.27 Therefore, the claims against it were outside the jurisdiction of the Labor
Arbiter.28 Pacific Manpower argued that the employment contract should first be presented so that the employer’s
contractual obligations might be identified.29 It further denied that it assumed liability for petitioner’s illegal
acts.30cralawred
On July 29, 1998, the Labor Arbiter dismissed Joy’s complaint. 31 Acting Executive Labor Arbiter Pedro C. Ramos
ruled that her complaint was based on mere allegations. 32 The Labor Arbiter found that there was no excess
payment of placement fees, based on the official receipt presented by petitioner. 33 The Labor Arbiter found
unnecessary a discussion on petitioner’s transfer of obligations to Pacific 34 and considered the matter immaterial
in view of the dismissal of respondent’s complaint.35cralawred
Joy appealed36 to the National Labor Relations Commission.
In a resolution37 dated March 31, 2004, the National Labor Relations Commission declared that Joy was illegally
dismissed.38 It reiterated the doctrine that the burden of proof to show that the dismissal was based on a just or
valid cause belongs to the employer. 39 It found that Sameer Overseas Placement Agency failed to prove that there
were just causes for termination.40 There was no sufficient proof to show that respondent was inefficient in her
work and that she failed to comply with company requirements. 41 Furthermore, procedural due process was not
observed in terminating respondent.42cralawred
The National Labor Relations Commission did not rule on the issue of reimbursement of placement fees for lack of
jurisdiction.43 It refused to entertain the issue of the alleged transfer of obligations to Pacific. 44 It did not acquire
jurisdiction over that issue because Sameer Overseas Placement Agency failed to appeal the Labor Arbiter’s
decision not to rule on the matter.45cralawred
The National Labor Relations Commission awarded respondent only three (3) months worth of salary in the
amount of NT$46,080, the reimbursement of the NT$3,000 withheld from her, and attorney’s fees of
NT$300.46cralawred
The Commission denied the agency’s motion for reconsideration 47 dated May 12, 2004 through a
resolution48 dated July 2, 2004.
Aggrieved by the ruling, Sameer Overseas Placement Agency caused the filing of a petition 49 for certiorari with the
Court of Appeals assailing the National Labor Relations Commission’s resolutions dated March 31, 2004 and July
2, 2004.
The Court of Appeals50 affirmed the decision of the National Labor Relations Commission with respect to the
finding of illegal dismissal, Joy’s entitlement to the equivalent of three months worth of salary, reimbursement of
withheld repatriation expense, and attorney’s fees. 51 The Court of Appeals remanded the case to the National
Labor Relations Commission to address the validity of petitioner's allegations against Pacific. 52 The Court of
Appeals held, thus:chanRoblesvirtualLawlibrary
Although the public respondent found the dismissal of the complainant-respondent illegal, we should point out that
the NLRC merely awarded her three (3) months backwages or the amount of NT$46,080.00, which was based
upon its finding that she was dismissed without due process, a finding that we uphold, given petitioner’s lack of
worthwhile discussion upon the same in the proceedings below or before us. Likewise we sustain NLRC’s finding
in regard to the reimbursement of her fare, which is squarely based on the law; as well as the award of attorney’s
fees.
But we do find it necessary to remand the instant case to the public respondent for further proceedings, for the
purpose of addressing the validity or propriety of petitioner’s third-party complaint against the transferee agent or
the Pacific Manpower & Management Services, Inc. and Lea G. Manabat. We should emphasize that as far as the
decision of the NLRC on the claims of Joy Cabiles, is concerned, the same is hereby affirmed with finality, and we
hold petitioner liable thereon, but without prejudice to further hearings on its third party complaint against Pacific
for reimbursement.
WHEREFORE, premises considered, the assailed Resolutions are hereby partly AFFIRMED in accordance with
the foregoing discussion, but subject to the caveat embodied in the last sentence. No costs.
SO ORDERED.53
Dissatisfied, Sameer Overseas Placement Agency filed this petition. 54cralawred
We are asked to determine whether the Court of Appeals erred when it affirmed the ruling of the National Labor
Relations Commission finding respondent illegally dismissed and awarding her three months’ worth of salary, the
reimbursement of the cost of her repatriation, and attorney’s fees despite the alleged existence of just causes of
termination.
Petitioner reiterates that there was just cause for termination because there was a finding of Wacoal that
respondent was inefficient in her work.55 Therefore, it claims that respondent’s dismissal was valid. 56cralawred
Petitioner also reiterates that since Wacoal’s accreditation was validly transferred to Pacific at the time respondent
filed her complaint, it should be Pacific that should now assume responsibility for Wacoal’s contractual obligations
to the workers originally recruited by petitioner.57cralawred

Sameer Overseas Placement Agency’s petition is without merit. We find for respondent.
I . . . .chanrobleslaw
Sameer Overseas Placement Agency failed to show that there was just cause for causing Joy’s dismissal. The
employer, Wacoal, also failed to accord her due process of law.
Indeed, employers have the prerogative to impose productivity and quality standards at work. 58 They may also
impose reasonable rules to ensure that the employees comply with these standards. 59 Failure to comply may be a
just cause for their dismissal.60 Certainly, employers cannot be compelled to retain the services of an employee
who is guilty of acts that are inimical to the interest of the employer. 61 While the law acknowledges the plight and
vulnerability of workers, it does not “authorize the oppression or self-destruction of the employer.” 62 Management
prerogative is recognized in law and in our jurisprudence.
This prerogative, however, should not be abused. It is “tempered with the employee’s right to security of
tenure.”63 Workers are entitled to substantive and procedural due process before termination. They may not be
removed from employment without a valid or just cause as determined by law and without going through the
proper procedure.
Security of tenure for labor is guaranteed by our Constitution. 64cralawred
Employees are not stripped of their security of tenure when they move to work in a different jurisdiction. With
respect to the rights of overseas Filipino workers, we follow the principle of lex loci contractus.
Thus, in Triple Eight Integrated Services, Inc. v. NLRC,65 this court noted:chanRoblesvirtualLawlibrary
Petitioner likewise attempts to sidestep the medical certificate requirement by contending that since Osdana was
working in Saudi Arabia, her employment was subject to the laws of the host country . Apparently, petitioner hopes
to make it appear that the labor laws of Saudi Arabia do not require any certification by a competent public health
authority in the dismissal of employees due to illness.
Again, petitioner’s argument is without merit.
First, established is the rule that lex loci contractus (the law of the place where the contract is made) governs in
this jurisdiction. There is no question that the contract of employment in this case was perfected here in the
Philippines. Therefore, the Labor Code, its implementing rules and regulations, and other laws affecting labor
apply in this case. Furthermore, settled is the rule that the courts of the forum will not enforce any foreign claim
obnoxious to the forum’s public policy. Here in the Philippines, employment agreements are more than contractual
in nature. The Constitution itself, in Article XIII, Section 3, guarantees the special protection of workers, to
wit:chanRoblesvirtualLawlibrary
The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law.
This public policy should be borne in mind in this case because to allow foreign employers to determine for and by
themselves whether an overseas contract worker may be dismissed on the ground of illness would encourage
illegal or arbitrary pre-termination of employment contracts. 66 (Emphasis supplied, citation omitted)
Even with respect to fundamental procedural rights, this court emphasized in PCL Shipping Philippines, Inc. v.
NLRC,67 to wit:chanRoblesvirtualLawlibrary
Petitioners admit that they did not inform private respondent in writing of the charges against him and that they
failed to conduct a formal investigation to give him opportunity to air his side. However, petitioners contend that
the twin requirements of notice and hearing applies strictly only when the employment is within the Philippines
and that these need not be strictly observed in cases of international maritime or overseas employment.
The Court does not agree. The provisions of the Constitution as well as the Labor Code which afford protection to
labor apply to Filipino employees whether working within the Philippines or abroad. Moreover, the principle of lex
loci contractus (the law of the place where the contract is made) governs in this jurisdiction . In the present case, it
is not disputed that the Contract of Employment entered into by and between petitioners and private respondent
was executed here in the Philippines with the approval of the Philippine Overseas Employment Administration
(POEA). Hence, the Labor Code together with its implementing rules and regulations and other laws affecting
labor apply in this case.68 (Emphasis supplied, citations omitted)
By our laws, overseas Filipino workers (OFWs) may only be terminated for a just or authorized cause and after
compliance with procedural due process requirements.
Article 282 of the Labor Code enumerates the just causes of termination by the employer.
Thus:chanRoblesvirtualLawlibrary
Art. 282. Termination by employer. An employer may terminate an employment for any of the following
causes:cralawlawlibrary
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;chanroblesvirtuallawlibrary
(b) Gross and habitual neglect by the employee of his duties;chanroblesvirtuallawlibrary
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;chanroblesvirtuallawlibrary
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate
member of his family or his duly authorized representatives; andChanRoblesVirtualawlibrary
(e) Other causes analogous to the foregoing.
Petitioner’s allegation that respondent was inefficient in her work and negligent in her duties 69 may, therefore,
constitute a just cause for termination under Article 282(b), but only if petitioner was able to prove it.
The burden of proving that there is just cause for termination is on the employer. “The employer must affirmatively
show rationally adequate evidence that the dismissal was for a justifiable cause.” 70 Failure to show that there was
valid or just cause for termination would necessarily mean that the dismissal was illegal. 71cralawred
To show that dismissal resulting from inefficiency in work is valid, it must be shown that: 1) the employer has set
standards of conduct and workmanship against which the employee will be judged; 2) the standards of conduct
and workmanship must have been communicated to the employee; and 3) the communication was made at a
reasonable time prior to the employee’s performance assessment.
This is similar to the law and jurisprudence on probationary employees, which allow termination of the employee
only when there is “just cause or when [the probationary employee] fails to qualify as a regular employee in
accordance with reasonable standards made known by the employer to the employee at the time of his [or her]
engagement.”72cralawred
However, we do not see why the application of that ruling should be limited to probationary employment. That rule
is basic to the idea of security of tenure and due process, which are guaranteed to all employees, whether their
employment is probationary or regular.
The pre-determined standards that the employer sets are the bases for determining the probationary employee’s
fitness, propriety, efficiency, and qualifications as a regular employee. Due process requires that the probationary
employee be informed of such standards at the time of his or her engagement so he or she can adjust his or her
character or workmanship accordingly. Proper adjustment to fit the standards upon which the employee’s
qualifications will be evaluated will increase one’s chances of being positively assessed for regularization by his or
her employer.
Assessing an employee’s work performance does not stop after regularization. The employer, on a regular basis,
determines if an employee is still qualified and efficient, based on work standards. Based on that determination,
and after complying with the due process requirements of notice and hearing, the employer may exercise its
management prerogative of terminating the employee found unqualified.
The regular employee must constantly attempt to prove to his or her employer that he or she meets all the
standards for employment. This time, however, the standards to be met are set for the purpose of retaining
employment or promotion. The employee cannot be expected to meet any standard of character or workmanship
if such standards were not communicated to him or her. Courts should remain vigilant on allegations of the
employer’s failure to communicate work standards that would govern one’s employment “if [these are] to
discharge in good faith [their] duty to adjudicate.” 73cralawred
In this case, petitioner merely alleged that respondent failed to comply with her foreign employer’s work
requirements and was inefficient in her work.74No evidence was shown to support such allegations. Petitioner did
not even bother to specify what requirements were not met, what efficiency standards were violated, or what
particular acts of respondent constituted inefficiency.
There was also no showing that respondent was sufficiently informed of the standards against which her work
efficiency and performance were judged. The parties’ conflict as to the position held by respondent showed that
even the matter as basic as the job title was not clear.
The bare allegations of petitioner are not sufficient to support a claim that there is just cause for termination. There
is no proof that respondent was legally terminated.
Petitioner failed to comply with
the due process requirements
Respondent’s dismissal less than one year from hiring and her repatriation on the same day show not only failure
on the part of petitioner to comply with the requirement of the existence of just cause for termination. They
patently show that the employers did not comply with the due process requirement.
A valid dismissal requires both a valid cause and adherence to the valid procedure of dismissal. 75 The employer is
required to give the charged employee at least two written notices before termination. 76 One of the written notices
must inform the employee of the particular acts that may cause his or her dismissal. 77 The other notice must
“[inform] the employee of the employer’s decision.” 78 Aside from the notice requirement, the employee must also
be given “an opportunity to be heard.”79cralawred
Petitioner failed to comply with the twin notices and hearing requirements. Respondent started working on June
26, 1997. She was told that she was terminated on July 14, 1997 effective on the same day and barely a month
from her first workday. She was also repatriated on the same day that she was informed of her termination. The
abruptness of the termination negated any finding that she was properly notified and given the opportunity to be
heard. Her constitutional right to due process of law was violated.
II
Respondent Joy Cabiles, having been illegally dismissed, is entitled to her salary for the unexpired portion of the
employment contract that was violated together with attorney’s fees and reimbursement of amounts withheld from
her salary.
Section 10 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of
1995, states that overseas workers who were terminated without just, valid, or authorized cause “shall be entitled
to the full reimbursement of his placement fee with interest of twelve (12%) per annum, plus his salaries for the
unexpired portion of his employment contract or for three (3) months for every year of the unexpired term,
whichever is less.”
Sec. 10. MONEY CLAIMS. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the
National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and
decide, within ninety (90) calendar days after filing of the complaint, the claims arising out of an employer-
employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment
including claims for actual, moral, exemplary and other forms of damages.
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this
section shall be joint and several. This provisions [sic] shall be incorporated in the contract for overseas
employment and shall be a condition precedent for its approval. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may
be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or
partnership for the aforesaid claims and damages.

Such liabilities shall continue during the entire period or duration of the employment contract and shall not be
affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this
section shall be paid within four (4) months from the approval of the settlement by the appropriate authority.
In case of termination of overseas employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve (12%)
per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.
....
(Emphasis supplied)chanrobleslaw
Section 15 of Republic Act No. 8042 states that “repatriation of the worker and the transport of his [or her]
personal belongings shall be the primary responsibility of the agency which recruited or deployed the worker
overseas.” The exception is when “termination of employment is due solely to the fault of the worker,” 80 which as
we have established, is not the case. It reads:chanRoblesvirtualLawlibrary
SEC. 15. REPATRIATION OF WORKERS; EMERGENCY REPATRIATION FUND. – The repatriation of the
worker and the transport of his personal belongings shall be the primary responsibility of the agency which
recruited or deployed the worker overseas. All costs attendant to repatriation shall be borne by or charged to the
agency concerned and/or its principal. Likewise, the repatriation of remains and transport of the personal
belongings of a deceased worker and all costs attendant thereto shall be borne by the principal and/or local
agency. However, in cases where the termination of employment is due solely to the fault of the worker, the
principal/employer or agency shall not in any manner be responsible for the repatriation of the former and/or his
belongings.
....
The Labor Code81 also entitles the employee to 10% of the amount of withheld wages as attorney’s fees when the
withholding is unlawful.
The Court of Appeals affirmed the National Labor Relations Commission’s decision to award respondent
NT$46,080.00 or the three-month equivalent of her salary, attorney’s fees of NT$300.00, and the reimbursement
of the withheld NT$3,000.00 salary, which answered for her repatriation.
We uphold the finding that respondent is entitled to all of these awards.  The award of the three-month equivalent
of respondent’s salary should, however, be increased to the amount equivalent to the unexpired term of the
employment contract.
In Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc. ,82 this court ruled that the clause “or
for three (3) months for every year of the unexpired term, whichever is less” 83 is unconstitutional for violating the
equal protection clause and substantive due process. 84cralawred
A statute or provision which was declared unconstitutional is not a law. It “confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is inoperative as if it has not been passed at all.” 85cralawred
We are aware that the clause “or for three (3) months for every year of the unexpired term, whichever is less”  was
reinstated in Republic Act No. 8042 upon promulgation of Republic Act No. 10022 in 2010. Section 7 of Republic
Act No. 10022 provides:chanRoblesvirtualLawlibrary
Section 7. Section 10 of Republic Act No. 8042, as amended, is hereby amended to read as
follows:chanRoblesvirtualLawlibrary
SEC. 10. Money Claims. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National
Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within
ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims
for actual, moral, exemplary and other forms of damage. Consistent with this mandate, the NLRC shall endeavor
to update and keep abreast with the developments in the global services industry.
The liability of the principal/employer and the recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be incorporated in the contract for overseas employment
and shall be a condition precedent for its approval. The performance bond to de [sic] filed by the
recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may
be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or
partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the employment contract and shall not be
affected by any substitution, amendment or modification made locally or in a foreign country of the said contract.
Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this
section shall be paid within thirty (30) days from approval of the settlement by the appropriate authority.
In case of termination of overseas employment without just, valid or authorized cause as defined by law or
contract, or any unauthorized deductions from the migrant worker’s salary, the worker shall be entitled to the full
reimbursement if [sic] his placement fee and the deductions made with interest at twelve percent (12%) per
annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less.
In case of a final and executory judgement against a foreign employer/principal, it shall be automatically
disqualified, without further proceedings, from participating in the Philippine Overseas Employment Program and
from recruiting and hiring Filipino workers until and unless it fully satisfies the judgement award.
Noncompliance with the mandatory periods for resolutions of case provided under this section shall subject the
responsible officials to any or all of the following penalties:cralawlawlibrary
(a) The salary of any such official who fails to render his decision or resolution within the prescribed period shall
be, or caused to be, withheld until the said official complies therewith;chanroblesvirtuallawlibrary
(b) Suspension for not more than ninety (90) days; or

(c) Dismissal from the service with disqualification to hold any appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such
official may have incured [sic] under other existing laws or rules and regulations as a consequence of violating the
provisions of this paragraph. (Emphasis supplied)
Republic Act No. 10022 was promulgated on March 8, 2010. This means that the reinstatement of the clause in
Republic Act No. 8042 was not yet in effect at the time of respondent’s termination from work in 1997. 86 Republic
Act No. 8042 before it was amended by Republic Act No. 10022 governs this case.
When a law is passed, this court awaits an actual case that clearly raises adversarial positions in their proper
context before considering a prayer to declare it as unconstitutional.
However, we are confronted with a unique situation. The law passed incorporates the exact clause already
declared as unconstitutional, without any perceived substantial change in the circumstances.
This may cause confusion on the part of the National Labor Relations Commission and the Court of Appeals. At
minimum, the existence of Republic Act No. 10022 may delay the execution of the judgment in this case, further
frustrating remedies to assuage the wrong done to petitioner. Hence, there is a necessity to decide this
constitutional issue.
Moreover, this court is possessed with the constitutional duty to “[p]romulgate rules concerning the protection and
enforcement of constitutional rights.”87 When cases become moot and academic, we do not hesitate to provide for
guidance to bench and bar in situations where the same violations are capable of repetition but will evade review.
This is analogous to cases where there are millions of Filipinos working abroad who are bound to suffer from the
lack of protection because of the restoration of an identical clause in a provision previously declared as
unconstitutional.
In the hierarchy of laws, the Constitution is supreme. No branch or office of the government may exercise its
powers in any manner inconsistent with the Constitution, regardless of the existence of any law that supports such
exercise. The Constitution cannot be trumped by any other law. All laws must be read in light of the Constitution.
Any law that is inconsistent with it is a nullity.
Thus, when a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot be
cured by reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that
was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a
reverse conclusion.
We are not convinced by the pleadings submitted by the parties that the situation has so changed so as to cause
us to reverse binding precedent.
Likewise, there are special reasons of judicial efficiency and economy that attend to these cases.
The new law puts our overseas workers in the same vulnerable position as they were prior to Serrano. Failure to
reiterate the very ratio decidendi of that case will result in the same untold economic hardships that our reading of
the Constitution intended to avoid. Obviously, we cannot countenance added expenses for further litigation that
will reduce their hard-earned wages as well as add to the indignity of having been deprived of the protection of our
laws simply because our precedents have not been followed. There is no constitutional doctrine that causes
injustice in the face of empty procedural niceties. Constitutional interpretation is complex, but it is never
unreasonable.
Thus, in a resolution88 dated October 22, 2013, we ordered the parties and the Office of the Solicitor General to
comment on the constitutionality of the reinstated clause in Republic Act No. 10022.
In its comment,89 petitioner argued that the clause was constitutional. 90 The legislators intended a balance
between the employers’ and the employees’ rights by not unduly burdening the local recruitment
agency.91 Petitioner is also of the view that the clause was already declared as constitutional
in Serrano.92cralawred
The Office of the Solicitor General also argued that the clause was valid and constitutional. 93 However, since the
parties never raised the issue of the constitutionality of the clause as reinstated in Republic Act No. 10022, its
contention is that it is beyond judicial review.94cralawred
On the other hand, respondent argued that the clause was unconstitutional because it infringed on workers’ right
to contract.95cralawred
We observe that the reinstated clause, this time as provided in Republic Act. No. 10022, violates the constitutional
rights to equal protection and due process.96 Petitioner as well as the Solicitor General have failed to show any
compelling change in the circumstances that would warrant us to revisit the precedent.
We reiterate our finding in Serrano v. Gallant Maritime that limiting wages that should be recovered by an illegally
dismissed overseas worker to three months is both a violation of due process and the equal protection clauses of
the Constitution.
Equal protection of the law is a guarantee that persons under like circumstances and falling within the same class
are treated alike, in terms of “privileges conferred and liabilities enforced.” 97 It is a guarantee against “undue favor
and individual or class privilege, as well as hostile discrimination or the oppression of inequality.” 98cralawred
In creating laws, the legislature has the power “to make distinctions and classifications.” 99 In exercising such
power, it has a wide discretion.100cralawred
The equal protection clause does not infringe on this legislative power. 101 A law is void on this basis, only if
classifications are made arbitrarily.102 There is no violation of the equal protection clause if the law applies equally
to persons within the same class and if there are reasonable grounds for distinguishing between those falling
within the class and those who do not fall within the class. 103 A law that does not violate the equal protection
clause prescribes a reasonable classification.104cralawred
A reasonable classification “(1) must rest on substantial distinctions; (2) must be germane to the purposes of the
law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same
class.”105cralawred
The reinstated clause does not satisfy the requirement of reasonable classification.
In Serrano, we identified the classifications made by the reinstated clause. It distinguished between fixed-period
overseas workers and fixed-period local workers.106 It also distinguished between overseas workers with
employment contracts of less than one year and overseas workers with employment contracts of at least one
year.107 Within the class of overseas workers with at least one-year employment contracts, there was a distinction
between those with at least a year left in their contracts and those with less than a year left in their contracts when
they were illegally dismissed.108cralawred
The Congress’ classification may be subjected to judicial review. In Serrano, there is a “legislative classification
which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of
a suspect class.”109cralawred
Under the Constitution, labor is afforded special protection. 110 Thus, this court in Serrano, “[i]mbued with the same
sense of ‘obligation to afford protection to labor,’ . . . employ[ed] the standard of strict judicial scrutiny, for it
perceive[d] in the subject clause a suspect classification prejudicial to OFWs.” 111cralawred
We also noted in Serrano that before the passage of Republic Act No. 8042, the money claims of illegally
terminated overseas and local workers with fixed-term employment were computed in the same manner. 112 Their
money claims were computed based on the “unexpired portions of their contracts.” 113 The adoption of the
reinstated clause in Republic Act No. 8042 subjected the money claims of illegally dismissed overseas workers
with an unexpired term of at least a year to a cap of three months worth of their salary. 114 There was no such
limitation on the money claims of illegally terminated local workers with fixed-term employment. 115cralawred
We observed that illegally dismissed overseas workers whose employment contracts had a term of less than one
year were granted the amount equivalent to the unexpired portion of their employment contracts. 116 Meanwhile,
illegally dismissed overseas workers with employment terms of at least a year were granted a cap equivalent to
three months of their salary for the unexpired portions of their contracts. 117cralawred
Observing the terminologies used in the clause, we also found that “the subject clause creates a sub-layer of
discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed
with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion
thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be
covered by the reinstated clause, and their monetary benefits limited to their salaries for three months
only.”118cralawred
We do not need strict scrutiny to conclude that these classifications do not rest on any real or substantial
distinctions that would justify different treatments in terms of the computation of money claims resulting from
illegal termination.
Overseas workers regardless of their classifications are entitled to security of tenure, at least for the period agreed
upon in their contracts. This means that they cannot be dismissed before the end of their contract terms without
due process. If they were illegally dismissed, the workers’ right to security of tenure is violated.
The rights violated when, say, a fixed-period local worker is illegally terminated are neither greater than nor less
than the rights violated when a fixed-period overseas worker is illegally terminated. It is state policy to protect the
rights of workers without qualification as to the place of employment. 119 In both cases, the workers are deprived of
their expected salary, which they could have earned had they not been illegally dismissed. For both workers, this
deprivation translates to economic insecurity and disparity. 120 The same is true for the distinctions between
overseas workers with an employment contract of less than one year and overseas workers with at least one year
of employment contract, and between overseas workers with at least a year left in their contracts and overseas
workers with less than a year left in their contracts when they were illegally dismissed.
For this reason, we cannot subscribe to the argument that “[overseas workers] are contractual employees who
can never acquire regular employment status, unlike local workers” 121 because it already justifies differentiated
treatment in terms of the computation of money claims. 122cralawred
Likewise, the jurisdictional and enforcement issues on overseas workers’ money claims do not justify a
differentiated treatment in the computation of their money claims. 123 If anything, these issues justify an equal, if not
greater protection and assistance to overseas workers who generally are more prone to exploitation given their
physical distance from our government.
We also find that the classifications are not relevant to the purpose of the law, which is to “establish a higher
standard of protection and promotion of the welfare of migrant workers, their families and overseas Filipinos in
distress, and for other purposes.”124 Further, we find specious the argument that reducing the liability of placement
agencies “redounds to the benefit of the [overseas] workers.” 125cralawred
Putting a cap on the money claims of certain overseas workers does not increase the standard of protection
afforded to them. On the other hand, foreign employers are more incentivized by the reinstated clause to enter
into contracts of at least a year because it gives them more flexibility to violate our overseas workers’ rights. Their
liability for arbitrarily terminating overseas workers is decreased at the expense of the workers whose rights they
violated. Meanwhile, these overseas workers who are impressed with an expectation of a stable job overseas for
the longer contract period disregard other opportunities only to be terminated earlier. They are left with claims that
are less than what others in the same situation would receive. The reinstated clause, therefore, creates a situation
where the law meant to protect them makes violation of rights easier and simply benign to the violator.
As Justice Brion said in his concurring opinion in Serrano:chanRoblesvirtualLawlibrary
Section 10 of R.A. No. 8042 affects these well-laid rules and measures, and in fact provides a hidden twist
affecting the principal/employer’s liability. While intended as an incentive accruing to recruitment/manning
agencies, the law, as worded, simply limits the OFWs’ recovery in wrongful dismissal situations. Thus, it redounds
to the benefit of whoever may be liable, including the principal/employer – the direct employer primarily liable for
the wrongful dismissal. In this sense, Section 10 – read as a grant of incentives to recruitment/manning agencies
– oversteps what it aims to do by effectively limiting what is otherwise the full liability of the foreign
principals/employers. Section 10, in short, really operates to benefit the wrong party and allows that party, without
justifiable reason, to mitigate its liability for wrongful dismissals . Because of this hidden twist, the limitation of
liability under Section 10 cannot be an “appropriate” incentive, to borrow the term that R.A. No. 8042 itself uses to
describe the incentive it envisions under its purpose clause.
What worsens the situation is the chosen mode of granting the incentive: instead of a grant that, to encourage
greater efforts at recruitment, is directly related to extra efforts undertaken, the law simply limits their liability for
the wrongful dismissals of already deployed OFWs. This is effectively a legally-imposed partial condonation of
their liability to OFWs, justified solely by the law’s intent to encourage greater deployment efforts. Thus, the
incentive, from a more practical and realistic view, is really part of a scheme to sell Filipino overseas labor at a
bargain for purposes solely of attracting the market. . . .
The so-called incentive is rendered particularly odious by its effect on the OFWs — the benefits accruing to the
recruitment/manning agencies and their principals are taken from the pockets of the OFWs  to whom the full
salaries for the unexpired portion of the contract rightfully belong. Thus, the principals/employers and the
recruitment/manning agencies even profit from their violation of the security of tenure that an employment contract
embodies. Conversely, lesser protection is afforded the OFW, not only because of the lessened recovery afforded
him or her by operation of law, but also because this same lessened recovery renders a wrongful dismissal easier
and less onerous to undertake; the lesser cost of dismissing a Filipino will always be a consideration a foreign
employer will take into account in termination of employment decisions. . . . 126
Further, “[t]here can never be a justification for any form of government action that alleviates the burden of one
sector, but imposes the same burden on another sector, especially when the favored sector is composed of
private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose
protection no less than the Constitution commands. The idea that private business interest can be elevated to the
level of a compelling state interest is odious.” 127cralawred
Along the same line, we held that the reinstated clause violates due process rights. It is arbitrary as it deprives
overseas workers of their monetary claims without any discernable valid purpose. 128cralawred
Respondent Joy Cabiles is entitled to her salary for the unexpired portion of her contract, in accordance with
Section 10 of Republic Act No. 8042. The award of the three-month equivalence of respondent’s salary must be
modified accordingly. Since she started working on June 26, 1997 and was terminated on July 14, 1997,
respondent is entitled to her salary from July 15, 1997 to June 25, 1998. “To rule otherwise would be iniquitous to
petitioner and other OFWs, and would, in effect, send a wrong signal that principals/employers and
recruitment/manning agencies may violate an OFW’s security of tenure which an employment contract embodies
and actually profit from such violation based on an unconstitutional provision of law.” 129cralawred
III
On the interest rate, the Bangko Sentral ng Pilipinas Circular No. 799 of June 21, 2013, which revised the interest
rate for loan or forbearance from 12% to 6% in the absence of stipulation, applies in this case. The pertinent
portions of Circular No. 799, Series of 2013, read:chanRoblesvirtualLawlibrary
The Monetary Board, in its Resolution No. 796 dated 16 May 2013, approved the following revisions governing the
rate of interest in the absence of stipulation in loan contracts, thereby amending Section 2 of Circular No. 905,
Series of 1982:cralawlawlibrary
Section 1. The rate of interest for the loan or forbearance of any money, goods or credits and the rate allowed in
judgments, in the absence of an express contract as to such rate of interest, shall be six percent (6%) per annum.
Section 2. In view of the above, Subsection X305.1 of the Manual of Regulations for Banks and Sections
4305Q.1, 4305S.3 and 4303P.1 of the Manual of Regulations for Non-Bank Financial Institutions are hereby
amended accordingly.
This Circular shall take effect on 1 July 2013.
Through the able ponencia of Justice Diosdado Peralta, we laid down the guidelines in computing legal interest
in Nacar v. Gallery Frames:130cralawred
II. With regard particularly to an award of interest in the concept of actual and compensatory damages, the rate of
interest, as well as the accrual thereof, is imposed, as follows:chanRoblesvirtualLawlibrary
1. When the obligation is breached, and it consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the interest due should be that which may have
been stipulated in writing. Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In the absence of stipulation, the rate
of interest shall be 6% per annum to be computed from default, i.e., from judicial or
extrajudicial demand under and subject to the provisions of Article 1169 of the Civil
Code.
2. When an obligation, not constituting a loan or forbearance of money, is breached,
an interest on the amount of damages awarded may be imposed at the discretion of
the court at the rate of 6% per annum. No interest, however, shall be adjudged on
unliquidated claims or damages, except when or until the demand can be
established with reasonable certainty. Accordingly, where the demand is established
with reasonable certainty, the interest shall begin to run from the time the claim is
made judicially or extrajudicially (Art. 1169, Civil Code), but when such certainty
cannot be so reasonably established at the time the demand is made, the interest
shall begin to run only from the date the judgment of the court is made (at which
time the quantification of damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal interest shall, in any case,
be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whether the case falls under paragraph 1 or
paragraph 2, above, shall be 6% per annum  from such finality until its satisfaction,
this interim period being deemed to be by then an equivalent to a forbearance of
credit.
And, in addition to the above, judgments that have become final and executory prior to July 1, 2013, shall not be
disturbed and shall continue to be implemented applying the rate of interest fixed therein. 131
Circular No. 799 is applicable only in loans and forbearance of money, goods, or credits, and in judgments when
there is no stipulation on the applicable interest rate. Further, it is only applicable if the judgment did not become
final and executory before July 1, 2013.132cralawred
We add that Circular No. 799 is not applicable when there is a law that states otherwise. While the Bangko Sentral
ng Pilipinas has the power to set or limit interest rates, 133 these interest rates do not apply when the law provides
that a different interest rate shall be applied. “[A] Central Bank Circular cannot repeal a law. Only a law can repeal
another law.”134cralawred
For example, Section 10 of Republic Act No. 8042 provides that unlawfully terminated overseas workers are
entitled to the reimbursement of his or her placement fee with an interest of 12% per annum. Since Bangko
Sentral ng Pilipinas circulars cannot repeal Republic Act No. 8042, the issuance of Circular No. 799 does not have
the effect of changing the interest on awards for reimbursement of placement fees from 12% to 6%. This is
despite Section 1 of Circular No. 799, which provides that the 6% interest rate applies even to judgments.
Moreover, laws are deemed incorporated in contracts. “The contracting parties need not repeat them. They do not
even have to be referred to. Every contract, thus, contains not only what has been explicitly stipulated, but the
statutory provisions that have any bearing on the matter.” 135 There is, therefore, an implied stipulation in contracts
between the placement agency and the overseas worker that in case the overseas worker is adjudged as entitled
to reimbursement of his or her placement fees, the amount shall be subject to a 12% interest per annum. This
implied stipulation has the effect of removing awards for reimbursement of placement fees from Circular No. 799’s
coverage.
The same cannot be said for awards of salary for the unexpired portion of the employment contract under
Republic Act No. 8042. These awards are covered by Circular No. 799 because the law does not provide for a
specific interest rate that should apply.
In sum, if judgment did not become final and executory before July 1, 2013 and there was no stipulation in the
contract providing for a different interest rate, other money claims under Section 10 of Republic Act No. 8042 shall
be subject to the 6% interest per annum in accordance with Circular No. 799.
This means that respondent is also entitled to an interest of 6% per annum on her money claims from the finality
of this judgment.
IV
Finally, we clarify the liabilities of Wacoal as principal and petitioner as the employment agency that facilitated
respondent’s overseas employment.
Section 10 of the Migrant Workers and Overseas Filipinos Act of 1995 provides that the foreign employer and the
local employment agency are jointly and severally liable for money claims including claims arising out of an
employer-employee relationship and/or damages. This section also provides that the performance bond filed by
the local agency shall be answerable for such money claims or damages if they were awarded to the employee.
This provision is in line with the state’s policy of affording protection to labor and alleviating workers’
plight.136cralawred
In overseas employment, the filing of money claims against the foreign employer is attended by practical and legal
complications. The distance of the foreign employer alone makes it difficult for an overseas worker to reach it and
make it liable for violations of the Labor Code. There are also possible conflict of laws, jurisdictional issues, and
procedural rules that may be raised to frustrate an overseas worker’s attempt to advance his or her claims.
It may be argued, for instance, that the foreign employer must be impleaded in the complaint as an indispensable
party without which no final determination can be had of an action. 137cralawred
The provision on joint and several liability in the Migrant Workers and Overseas Filipinos Act of 1995 assures
overseas workers that their rights will not be frustrated with these complications.
The fundamental effect of joint and several liability is that “each of the debtors is liable for the entire
obligation.”138 A final determination may, therefore, be achieved even if only one of the joint and several debtors
are impleaded in an action. Hence, in the case of overseas employment, either the local agency or the foreign
employer may be sued for all claims arising from the foreign employer’s labor law violations. This way, the
overseas workers are assured that someone — the foreign employer’s local agent — may be made to answer for
violations that the foreign employer may have committed.
The Migrant Workers and Overseas Filipinos Act of 1995 ensures that overseas workers have recourse in law
despite the circumstances of their employment. By providing that the liability of the foreign employer may be
“enforced to the full extent”139 against the local agent, the overseas worker is assured of immediate and sufficient
payment of what is due them.140cralawred
Corollary to the assurance of immediate recourse in law, the provision on joint and several liability in the Migrant
Workers and Overseas Filipinos Act of 1995 shifts the burden of going after the foreign employer from the
overseas worker to the local employment agency. However, it must be emphasized that the local agency that is
held to answer for the overseas worker’s money claims is not left without remedy. The law does not preclude it
from going after the foreign employer for reimbursement of whatever payment it has made to the employee to
answer for the money claims against the foreign employer.
A further implication of making local agencies jointly and severally liable with the foreign employer is that an
additional layer of protection is afforded to overseas workers. Local agencies, which are businesses by nature, are
inoculated with interest in being always on the lookout against foreign employers that tend to violate labor law.
Lest they risk their reputation or finances, local agencies must already have mechanisms for guarding against
unscrupulous foreign employers even at the level prior to overseas employment applications.
With the present state of the pleadings, it is not possible to determine whether there was indeed a transfer of
obligations from petitioner to Pacific. This should not be an obstacle for the respondent overseas worker to
proceed with the enforcement of this judgment. Petitioner is possessed with the resources to determine the proper
legal remedies to enforce its rights against Pacific, if any.
V
Many times, this court has spoken on what Filipinos may encounter as they travel into the farthest and most
difficult reaches of our planet to provide for their families. In  Prieto v. NLRC:141cralawred
The Court is not unaware of the many abuses suffered by our overseas workers in the foreign land where they
have ventured, usually with heavy hearts, in pursuit of a more fulfilling future. Breach of contract, maltreatment,
rape, insufficient nourishment, sub-human lodgings, insults and other forms of debasement, are only a few of the
inhumane acts to which they are subjected by their foreign employers, who probably feel they can do as they
please in their own country. While these workers may indeed have relatively little defense against exploitation
while they are abroad, that disadvantage must not continue to burden them when they return to their own territory
to voice their muted complaint. There is no reason why, in their very own land, the protection of our own laws
cannot be extended to them in full measure for the redress of their grievances. 142chanrobleslaw
But it seems that we have not said enough.
We face a diaspora of Filipinos. Their travails and their heroism can be told a million times over; each of their
stories as real as any other. Overseas Filipino workers brave alien cultures and the heartbreak of families left
behind daily. They would count the minutes, hours, days, months, and years yearning to see their sons and
daughters. We all know of the joy and sadness when they come home to see them all grown up and, being so,
they remember what their work has cost them. Twitter accounts, Facetime, and many other gadgets and online
applications will never substitute for their lost physical presence.
Unknown to them, they keep our economy afloat through the ebb and flow of political and economic crises. They
are our true diplomats, they who show the world the resilience, patience, and creativity of our people. Indeed, we
are a people who contribute much to the provision of material creations of this world.
This government loses its soul if we fail to ensure decent treatment for all Filipinos. We default by limiting the
contractual wages that should be paid to our workers when their contracts are breached by the foreign employers.
While we sit, this court will ensure that our laws will reward our overseas workers with what they deserve: their
dignity.
Inevitably, their dignity is ours as well.
WHEREFORE, the petition is DENIED. The decision of the Court of Appeals is AFFIRMED with modification.
Petitioner Sameer Overseas Placement Agency is ORDERED to pay respondent Joy C. Cabiles the amount
equivalent to her salary for the unexpired portion of her employment contract at an interest of 6% per annum from
the finality of this judgment. Petitioner is also ORDERED to reimburse respondent the withheld NT$3,000.00
salary and pay respondent attorney’s fees of NT$300.00 at an interest of 6% per annum from the finality of this
judgment.
The clause, “or for three (3) months for every year of the unexpired term, whichever is less” in Section 7 of
Republic Act No. 10022 amending Section 10 of Republic Act No. 8042 is declared unconstitutional and,
therefore, null and void.
SO ORDERED.
Case no. 7:
G.R. No. 176951               December 21, 2009
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS,
CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF
BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR;
MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN,
PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF
TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY
OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF
URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY
OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 177499               December 21, 2009
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS,
CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, Petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF
TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR;
MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF
DAVAO ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS
ORIENTAL, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF
TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY
OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF
URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY
OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178056               December 21, 2009
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS,
CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, Petitioners,
vs.
PROVINCE OF AGUSAN DEL NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and
MUNICIPALITY OF EL SALVADOR, MISAMIS ORIENTAL, COMMISSION ON ELECTIONS; MUNICIPALITY OF
CABADBARAN, Respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF
TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY
OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS,
CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF
URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY
OF BAIS, CITY OF CADIZ, and CITY OF TAGUM, Petitioners-In-Intervention.
DECISION
VELASCO, JR. J.:
Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit or
intent,1 for what is within the spirit is within the statute although it is not within its letter, and that which is within the
letter but not within the spirit is not within the statute. 2 Put a bit differently, that which is within the intent of the
lawmaker is as much within the statute as if within the letter; and that which is within the letter of the statute is not
within the statute unless within the intent of the lawmakers. 3 Withal, courts ought not to interpret and should not
accept an interpretation that would defeat the intent of the law and its legislators. 4
So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of
government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality of
statutes.5 This presumption finds its roots in the tri-partite system of government and the corollary separation of
powers, which enjoins the three great departments of the government to accord a becoming courtesy for each
other’s acts, and not to interfere inordinately with the exercise by one of its official functions. Towards this end,
courts ought to reject assaults against the validity of statutes, barring of course their clear unconstitutionality. To
doubt is to sustain, the theory in context being that the law is the product of earnest studies by Congress to
ensure that no constitutional prescription or concept is infringed. 6 Consequently, before a law duly challenged is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or argumentative
one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court. 7
BACKGROUND
The consolidated petitions for prohibition commenced by the League of Cities of the Philippines (LCP), City of
Iloilo, City of Calbayog, and Jerry P. Treñas8 assail the constitutionality of the sixteen (16) laws, 9 each converting
the municipality covered thereby into a city (cityhood laws, hereinafter) and seek to enjoin the Commission on
Elections (COMELEC) from conducting plebiscites pursuant to subject laws.
By Decision10 dated November 18, 2008, the Court en banc, by a 6-5 vote, granted the petitions and nullified the
sixteen (16) cityhood laws for being violative of the Constitution, specifically its Section 10, Article X and the equal
protection clause.
Subsequently, respondent local government units (LGUs) moved for reconsideration, raising, as one of the issues,
the validity of the factual premises not contained in the pleadings of the parties, let alone established, which
became the bases of the Decision subject of reconsideration. 11 By Resolution of March 31, 2009, a divided Court
denied the motion for reconsideration.
A second motion for reconsideration followed in which respondent LGUs prayed as follows:
WHEREFORE, respondents respectfully pray that the Honorable Court reconsider its "Resolution" dated March
31, 2009, in so far as it denies for "lack of merit" respondents’ "Motion for Reconsideration" dated December 9,
2008 and in lieu thereof, considering that new and meritorious arguments are raised by respondents’ "Motion for
Reconsideration" dated December 9, 2008 to grant afore-mentioned "Motion for Reconsideration" dated
December 9, 2008 and dismiss the "Petitions For Prohibition" in the instant case.
Per Resolution dated April 28, 2009, the Court, voting 6-6, disposed of the motion as follows:
By a vote of 6-6, the Motion for Reconsideration of the Resolution of 31 March 2009 is DENIED for lack of merit.
The motion is denied since there is no majority that voted to overturn the Resolution of 31 March 2009.
The Second Motion for Reconsideration of the Decision of 18 November 2008 is DENIED for being a prohibited
pleading, and the Motion for Leave to Admit Attached Petition in Intervention x x x filed by counsel for Ludivina T.
Mas, et al. are also DENIED. No further pleadings shall be entertained. Let entry of judgment be made in due
course. x x x
On May 14, 2009, respondent LGUs filed a Motion to Amend the Resolution of April 28, 2009 by Declaring
Instead that Respondents’ "Motion for Reconsideration of the Resolution of March 31, 2009" and "Motion for
Leave to File and to Admit Attached ‘Second Motion for Reconsideration of the Decision Dated November 18,
2008’ Remain Unresolved and to Conduct Further Proceedings Thereon ."
Per its Resolution of June 2, 2009, the Court declared the May 14, 2009 motion adverted to as expunged in light
of the entry of judgment made on May 21, 2009. Justice Leonardo-De Castro, however, taking common cause
with Justice Bersamin to grant the motion for reconsideration of the April 28, 2009 Resolution and to recall the
entry of judgment, stated the observation, and with reason, that the entry was effected "before the Court could act
on the aforesaid motion which was filed within the 15-day period counted from receipt of the April 28, 2009
Resolution."12
Forthwith, respondent LGUs filed a Motion for Reconsideration of the Resolution of June 2, 2009 to which some of
the petitioners and petitioners-in-intervention filed their respective comments. The Court will now rule on this
incident. But first, we set and underscore some basic premises:
(1) The initial motion to reconsider the November 18, 2008 Decision, as Justice Leonardo-De Castro
noted, indeed raised new and substantial issues, inclusive of the matter of the correctness of the factual
premises upon which the said decision was predicated. The 6-6 vote on the motion for reconsideration
per the Resolution of March 31, 2009, which denied the motion on the sole ground that "the basic issues
have already been passed upon" reflected a divided Court on the issue of whether or not the underlying
Decision of November 18, 2008 had indeed passed upon the basic issues raised in the motion for
reconsideration of the said decision;
(2) The aforesaid May 14, 2009 Motion to Amend Resolution of April 28, 2009 was precipitated by the
tie vote which served as basis for the issuance of said resolution. This May 14, 2009 motion––which
mainly argued that a tie vote is inadequate to declare a law unconstitutional–– remains unresolved; and
(3) Pursuant to Sec. 4(2), Art. VIII of the Constitution, all cases involving the constitutionality of a law
shall be heard by the Court en banc  and decided with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the case and voted thereon.
The basic issue tendered in this motion for reconsideration of the June 2, 2009 Resolution boils down to whether
or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited only to the initial vote on the petition
or also to the subsequent voting on the motion for reconsideration where the Court is called upon and actually
votes on the constitutionality of a law or like issuances. Or, as applied to this case, would a minute resolution
dismissing, on a tie vote, a motion for reconsideration on the sole stated ground––that the "basic issues have
already been passed"–– suffice to hurdle the voting requirement required for a declaration of the
unconstitutionality of the cityhood laws in question?
The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the
sole ground that "the basic issues had already been passed upon" betrayed an evenly divided Court on the issue
of whether or not the underlying Decision of November 18, 2008 had indeed passed upon the issues raised in the
motion for reconsideration of the said decision. But at the end of the day, the single issue that matters and the
vote that really counts really turn on the constitutionality of the cityhood laws. And be it remembered that the
inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not
the cityhood laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light of the 6-6
vote, should be deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws
in question is, on the merits, secured.
It ought to be clear that a deadlocked vote does not reflect the "majority of the Members" contemplated in Sec. 4
(2) of Art. VIII of the Constitution, which requires that:
All cases involving the constitutionality of a treaty, international or executive agreement, or law shall be heard by
the Supreme Court en banc, x x x shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis added.)
Webster defines "majority" as "a number greater than half of a total." 13 In plain language, this means 50% plus
one. In Lambino v. Commission on Elections, Justice, now Chief Justice, Puno, in a separate opinion, expressed
the view that "a deadlocked vote of six (6) is not a majority and a non-majority cannot write a rule with
precedential value."14
As may be noted, the aforequoted Sec. 4 of Art. VIII, as couched, exacts a majority vote in the determination of a
case involving the constitutionality of a statute, without distinguishing whether such determination is made on the
main petition or thereafter on a motion for reconsideration. This is as it should be, for, to borrow from the late
Justice Ricardo J. Francisco: "x x x [E]ven assuming x x x that the constitutional requirement on the concurrence
of the ‘majority’ was initially reached in the x x x ponencia, the same is inconclusive as it was still open for review
by way of a motion for reconsideration."15
To be sure, the Court has taken stock of the rule on a tie-vote situation, i.e., Sec. 7, Rule 56 and the
complementary A.M. No. 99-1-09- SC, respectively, providing that:
SEC. 7. Procedure if opinion is equally divided. – Where the court en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation no
decision is reached, the original action commenced in the court shall be dismissed; in appealed cases, the
judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be
denied.
A.M. No. 99-1-09-SC – x x x A motion for reconsideration of a decision or resolution of the Court En Banc or of a
Division may be granted upon a vote of a majority of the En Banc or of a Division, as the case may be, who
actually took part in the deliberation of the motion.
If the voting results in a tie, the motion for reconsideration is deemed denied.
But since the instant cases fall under Sec. 4 (2), Art. VIII of the Constitution, the aforequoted provisions ought to
be applied in conjunction with the prescription of the Constitution that the cases "shall be decided with the
concurrence of a majority of the Members who actually took part in the deliberations on the issues in the instant
cases and voted thereon." To repeat, the last vote on the issue of the constitutionality of the cityhood bills is that
reflected in the April 28, 2009 Resolution––a 6-6 deadlock.
On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of
the precipitate16 entry of judgment notwithstanding, and second, the deadlocked vote on the second motion for
reconsideration did not definitely settle the constitutionality of the cityhood laws, the Court is inclined to take
another hard look at the underlying decision. Without belaboring in their smallest details the arguments for and
against the procedural dimension of this disposition, it bears to stress that the Court has the power to suspend its
own rules when the ends of justice would be served thereby. 17 In the performance of their duties, courts should not
be shackled by stringent rules which would result in manifest injustice. Rules of procedure are only tools crafted to
facilitate the attainment of justice. Their strict and rigid application must be eschewed, if they result in
technicalities that tend to frustrate rather than promote substantial justice. Substantial rights must not be
prejudiced by a rigid and technical application of the rules in the altar of expediency. When a case is impressed
with public interest, a relaxation of the application of the rules is in order. 18 Time and again, this Court has
suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice
so require.19
While perhaps not on all fours with the case, because it involved a purely business transaction, what the Court
said in Chuidian v. Sandiganbayan20 is most apropos:
To reiterate what the Court has said in Ginete vs. Court of Appeals and other cases, the rules of procedure should
be viewed as mere instruments designed to facilitate the attainment of justice. They are not to be applied with
severity and rigidity when such application would clearly defeat the very rationale for their conception and
existence. Even the Rules of Court reflects this principle. The power to suspend or even disregard rules, inclusive
of the one-motion rule, can be so pervasive and compelling as to alter even that which this Court has already
declared to be final. The peculiarities of this case impel us to do so now.
The Court, by a vote of 6-4, grants the respondent LGUs’ motion for reconsideration of the Resolution of June 2,
2009, as well as their May 14, 2009 motion to consider the second motion for reconsideration of the November
18, 2008 Decision unresolved, and also grants said second motion for reconsideration.
This brings us to the substantive aspect of the case.
The Undisputed Factual Antecedents in Brief
During the 11th Congress,21 fifty-seven (57) cityhood bills were filed before the House of Representatives. 22 Of the
fifty-seven (57), thirty-three (33) eventually became laws. The twenty-four (24) other bills were not acted upon.
Later developments saw the introduction in the Senate of Senate Bill (S. Bill) No. 2157 23 to amend Sec. 450 of
Republic Act No. (RA) 7160, otherwise known as the Local Government Code (LGC) of 1991. The proposed
amendment sought to increase the income requirement to qualify for conversion into a city from PhP 20 million
average annual income to PhP 100 million locally generated income.
In March 2001, S. Bill No. 2157 was signed into law as RA 9009 to take effect on June 30, 2001. As thus
amended by RA 9009, Sec. 450 of the LGC of 1991 now provides that "[a] municipality x x x may be converted
into a component city if it has a [certified] locally generated average annual income x x x of at least [PhP 100
million] for the last two (2) consecutive years based on 2000 constant prices."
After the effectivity of RA 9009, the Lower House of the 12th Congress adopted in July 2001 House (H.) Joint
Resolution No. 2924 which, as its title indicated, sought to exempt from the income requirement prescribed in RA
9009 the 24 municipalities whose conversions into cities were not acted upon during the previous Congress. The
12th Congress ended without the Senate approving H. Joint Resolution No. 29.
Then came the 13th Congress (July 2004 to June 2007), which saw the House of Representatives re-adopting H.
Joint Resolution No. 29 as H. Joint Resolution No. 1 and forwarding it to the Senate for approval.
The Senate, however, again failed to approve the joint resolution. During the Senate session held on November 6,
2006, Senator Aquilino Pimentel, Jr. asserted that passing H. Resolution No. 1 would, in net effect, allow a
wholesale exemption from the income requirement imposed under RA 9009 on the municipalities. For this reason,
he suggested the filing by the House of Representatives of individual bills to pave the way for the municipalities to
become cities and then forwarding them to the Senate for proper action. 25
Heeding the advice, sixteen (16) municipalities filed, through their respective sponsors, individual cityhood bills.
Common to all 16 measures was a provision exempting the municipality covered from the PhP 100 million income
requirement.
As of June 7, 2007, both Houses of Congress had approved the individual cityhood bills, all of which eventually
lapsed into law on various dates. Each cityhood law directs the COMELEC, within thirty (30) days from its
approval, to hold a plebiscite to determine whether the voters approve of the conversion.
As earlier stated, the instant petitions seek to declare the cityhood laws unconstitutional for violation of Sec. 10,
Art. X of the Constitution, as well as for violation of the equal-protection clause. The wholesale conversion of
municipalities into cities, the petitioners bemoan, will reduce the share of existing cities in the Internal Revenue
Allotment (IRA), since more cities will partake of the internal revenue set aside for all cities under Sec. 285 of the
LGC of 1991.26
Petitioners-in-intervention, LPC members themselves, would later seek leave and be allowed to intervene.
Aside from their basic plea to strike down as unconstitutional the cityhood laws in question, petitioners and
petitioners-in-intervention collectively pray that an order issue enjoining the COMELEC from conducting
plebiscites in the affected areas. An alternative prayer would urge the Court to restrain the poll body from
proclaiming the plebiscite results.
On July 24, 2007, the Court en banc resolved to consolidate the petitions and the petitions-in-intervention. On
March 11, 2008, it heard the parties in oral arguments.
The Issues
In the main, the issues to which all others must yield pivot on whether or not the cityhood laws violate (1) Sec. 10.
Art. X of the Constitution and (2) the equal protection clause.
In the November 18, 2008 Decision granting the petitions, Justice Antonio T. Carpio, for the Court, resolved the
twin posers in the affirmative and accordingly declared the cityhood laws unconstitutional, deviating as they do
from the uniform and non-discriminatory income criterion prescribed by the LGC of 1991. In so doing, the
ponencia veritably agreed with the petitioners that the Constitution, in clear and unambiguous language, requires
that all the criteria for the creation of a city shall be embodied and written in the LGC, and not in any other law.
After a circumspect reflection, the Court is disposed to reconsider.
Petitioners’ threshold posture, characterized by a strained interpretation of the Constitution, if accorded cogency,
would veritably curtail and cripple Congress’ valid exercise of its authority to create political subdivisions.
By constitutional design27 and as a matter of long-established principle, the power to create political subdivisions
or LGUs is essentially legislative in character. 28 But even without any constitutional grant, Congress can, by law,
create, divide, merge, or altogether abolish or alter the boundaries of a province, city, or municipality. We said as
much in the fairly recent case, Sema v. CIMELEC.29 The 1987 Constitution, under its Art. X, Sec. 10, nonetheless
provides for the creation of LGUs, thus:
Section 10. No province, city, municipality, or barangay  shall be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.
(Emphasis supplied.)
As may be noted, the afore-quoted provision specifically provides for the creation of political subdivisions "in
accordance with the criteria established in the local government code," subject to the approval of the voters in the
unit concerned. The criteria referred to are the verifiable indicators of viability, i.e., area, population, and income,
now set forth in Sec. 450 of the LGC of 1991, as amended by RA 9009. The petitioners would parlay the thesis
that these indicators or criteria must be written only in the LGC and not in any other statute. Doubtless, the code
they are referring to is the LGC of 1991. Pushing their point, they conclude that the cityhood laws that exempted
the respondent LGUs from the income standard spelled out in the amendatory RA 9009 offend the Constitution.
Petitioners’ posture does not persuade.
The supposedly infringed Art. X, Sec. 10 is not a new constitutional provision. Save for the use of the term "barrio"
in lieu of "barangay," "may be" instead of "shall," the change of the phrase "unit or units" to "political unit" and the
addition of the modifier "directly" to the word "affected," the aforesaid provision is a substantial reproduction of Art.
XI, Sec. 3 of the 1973 Constitution, which reads:
Section 3. No province, city, municipality, or barrio  may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code and subject
to approval by a majority of the votes cast in a plebiscite in the unit or units affected. (Emphasis supplied.)
It bears notice, however, that the "code" similarly referred to in the 1973 and 1987 Constitutions is clearly but a
law Congress enacted. This is consistent with the aforementioned plenary power of Congress to create political
units. Necessarily, since Congress wields the vast poser of creating political subdivisions, surely it can exercise
the lesser authority of requiring a set of criteria, standards, or ascertainable indicators of viability for their creation.
Thus, the only conceivable reason why the Constitution employs the clause "in accordance with the criteria
established in the local government code" is to lay stress that it is Congress alone, and no other, which can
impose the criteria. The eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., in his treatise on Constitutional
Law, specifically on the subject provision, explains:
Prior to 1965, there was a certain lack of clarity with regard to the power to create, divide, merge, dissolve, or
change the boundaries of municipal corporations. The extent to which the executive may share in this power was
obscured by Cardona v. Municipality of Binangonan.30 Pelaez v. Auditor General subsequently clarified the
Cardona case when the Supreme Court said that "the authority to create municipal corporations is essentially
legislative in nature."31 Pelaez, however, conceded that "the power to fix such common boundary, in order to avoid
or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature-
involving as it does, the adoption of means and ways to carry into effect the law creating said
municipalities."32 Pelaez was silent about division, merger, and dissolution of municipal corporations. But since
division in effect creates a new municipality, and both dissolution and merger in effect abolish a legal creation, it
may fairly be inferred that these acts are also legislative in nature.
Section 10 [Art. X of the 1987 Constitution], which is a legacy from the 1973 Constitution, goes further than the
doctrine in the Pelaez case. It not only makes creation, division, merger, abolition or substantial alteration of
boundaries of provinces, cities, municipalities x x x subject to "criteria established in the local government
code," thereby declaring these actions properly legislative, but it also makes creation, division, merger, abolition or
substantial alteration of boundaries "subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected."33 x x x (Emphasis added.)
It remains to be observed at this juncture that when the 1987 Constitution speaks of the LGC, the reference
cannot be to any specific statute or codification of laws, let alone the LGC of 1991. 34 Be it noted that at the time of
the adoption of the 1987 Constitution, Batas Pambansa Blg. (BP) 337, the then LGC, was still in effect.
Accordingly, had the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the
LGC, then they would have actually referred to BP 337. Also, they would then not have provided for the
enactment by Congress of a new LGC, as they did in Art. X, Sec. 3 35 of the Constitution.
Consistent with its plenary legislative power on the matter, Congress can, via either a consolidated set of laws or
a much simpler, single-subject enactment, impose the said verifiable criteria of viability. These criteria need not be
embodied in the local government code, albeit this code is the ideal repository to ensure, as much as possible, the
element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the
existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this case, the
amendatory RA 9009 upped the already codified income requirement from PhP 20 million to PhP 100 million. At
the end of the day, the passage of amendatory laws is no different from the enactment of laws, i.e., the cityhood
laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in
enacting the exempting law/s, effectively decreased the already codified indicators.
Petitioners’ theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the
Court as illogical. For if we pursue their contention to its logical conclusion, then RA 9009 embodying the new and
increased income criterion would, in a way, also suffer the vice of unconstitutionality. It is startling, however, that
petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the
alleged unconstitutionality of the cityhood laws.
As it were, Congress, through the medium of the cityhood laws, validly decreased the income criterion vis-à-vis
the respondent LGUs, but without necessarily being unreasonably discriminatory, as shall be discussed shortly,
by reverting to the PhP 20 million threshold what it earlier raised to PhP 100 million. The legislative intent not to
subject respondent LGUs to the more stringent requirements of RA 9009 finds expression in the following uniform
provision of the cityhood laws:
Exemption from Republic Act No. 9009. – The City of x x x shall be exempted from the income requirement
prescribed under Republic Act No. 9009.
In any event, petitioners’ constitutional objection would still be untenable even if we were to assume purely ex
hypothesi the correctness of their underlying thesis, viz: that the conversion of a municipality to a city shall be in
accordance with, among other things, the income criterion set forth in the LGC of 1991, and in no other;
otherwise, the conversion is invalid. We shall explain.
Looking at the circumstances behind the enactment of the laws subject of contention, the Court finds that the
LGC-amending RA 9009, no less, intended the LGUs covered by the cityhood laws to be exempt from the PhP
100 million income criterion. In other words, the cityhood laws, which merely carried out the intent of RA 9009,
adhered, in the final analysis, to the "criteria established in the Local Government Code," pursuant to Sec. 10, Art.
X of the 1987 Constitution. We shall now proceed to discuss this exemption angle. 36
Among the criteria established in the LGC pursuant to Sec.10, Art. X of the 1987 Constitution are those detailed in
Sec. 450 of the LGC of 1991 under the heading " Requisites for Creation." The section sets the minimum income
qualifying bar before a municipality or a cluster of barangays may be considered for cityhood. Originally, Sec. 164
of BP 337 imposed an average regular annual income "of at least ten million pesos for the last three consecutive
years" as a minimum income standard for a municipal-to-city conversion. The LGC that BP 337 established was
superseded by the LGC of 1991 whose then Sec. 450 provided that "[a] municipality or cluster of barangays may
be converted into a component city if it has an average annual income, x x x of at least twenty million pesos
(₱20,000,000.00) for at least two (2) consecutive years based on 1991 constant prices x x x." RA 9009 in turn
amended said Sec. 450 by further increasing the income requirement to PhP 100 million, thus:
Section 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into a
component city if it has a locally generated average annual income, as certified by the Department of Finance, of
at least One Hundred Million Pesos (₱100,000,000.00) for the last two (2) consecutive years based on 2000
constant prices, and if it has either of the following requisites:
xxxx
(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds,
transfers, and non-recurring income. (Emphasis supplied.)
The legislative intent is not at all times accurately reflected in the manner in which the resulting law is couched.
Thus, applying a verba legis37 or strictly literal interpretation of a statute may render it meaningless and lead to
inconvenience, an absurd situation or injustice.38 To obviate this aberration, and bearing in mind the principle that
the intent or the spirit of the law is the law itself, 39 resort should be to the rule that the spirit of the law controls its
letter.40
It is in this respect that the history of the passage of RA 9009 and the logical inferences derivable therefrom
assume relevancy in discovering legislative intent.41
The rationale behind the enactment of RA 9009 to amend Sec. 450 of the LGC of 1991 can reasonably be
deduced from Senator Pimentel’s sponsorship speech on S. Bill No. 2157. Of particular significance is his
statement regarding the basis for the proposed increase from PhP 20 million to PhP 100 million in the income
requirement for municipalities wanting to be converted into cities, viz:
Senator Pimentel. Mr. President, I would have wanted this bill to be included in the whole set of proposed
amendments that we have introduced to precisely amend the [LGC]. However, it is a fact that there is a mad rush
of municipalities wanting to be converted into cities. Whereas in 1991, when the [LGC] was approved, there were
only 60 cities, today the number has increased to 85 cities, with 41 more municipalities applying for conversion x x
x. At the rate we are going, I am apprehensive that before long this nation will be a nation of all cities and no
municipalities.
It is for that reason, Mr. President, that we are proposing among other things, that the financial requirement,
which, under the [LGC], is fixed at ₱20 million, be raised to ₱100 million to enable a municipality to have the right
to be converted into a city, and the ₱100 million should be sourced from locally generated funds.
Congress to be sure knew, when RA 9009 was being deliberated upon, of the pendency of several bills on
cityhood, wherein the applying municipalities were qualified under the then obtaining PhP 20 million-income
threshold. These included respondent LGUs. Thus, equally noteworthy is the ensuing excerpts from the floor
exchange between then Senate President Franklin Drilon and Senator Pimentel, the latter stopping short of saying
that the income threshold of PhP 100 million under S. Bill No. 2157 would not apply to municipalities that have
pending cityhood bills, thus:
THE PRESIDENT. The Chair would like to ask for some clarificatory point. x x x
THE PRESIDENT. This is just on the point of the pending bills in the Senate which propose the conversion of a
number of municipalities into cities and which qualify under the present standard.
We would like to know the view of the sponsor: Assuming that this bill becomes a law, will the Chamber apply the
standard as proposed in this bill to those bills which are pending for consideration?
SENATOR PIMENTEL, Mr. President, it might not be fair to make this bill x x x [if] approved,  retroact to the bills
that are pending in the Senate for conversion from municipalities to cities.
THE PRESIDENT. Will there be an appropriate language crafted to reflect that view? Or does it not become a
policy of the Chamber, assuming that this bill becomes a law x x x that it will apply to those bills which are already
approved by the House under the old version of the [LGC] and are now pending in the Senate? The Chair does
not know if we can craft a language which will limit the application to those which are not yet in the Senate. Or is
that a policy that the Chamber will adopt?
SENATOR PIMENTEL. Mr. President, personally, I do not think it is necessary to put that provision because what
we are saying here will form part of the interpretation of this bill. Besides, if there is no retroactivity clause, I do not
think that the bill would have any retroactive effect.
THE PRESIDENT. So the understanding is that those bills which are already pending in the Chamber will not be
affected.
SENATOR PIMENTEL. These will not be affected, Mr. President.42 (Emphasis and underscoring supplied.)
What the foregoing Pimental-Drilon exchange eloquently indicates are the following complementary legislative
intentions: (1) the then pending cityhood bills would be outside the pale of the minimum income requirement of
PhP 100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not have any retroactive effect insofar as
the cityhood bills are concerned.
Given the foregoing perspective, it is not amiss to state that the basis for the inclusion of the exemption clause of
the cityhood laws is the clear-cut intent of Congress of not according retroactive effect to RA 9009. Not only do the
congressional records bear the legislative intent of exempting the cityhood laws from the income requirement of
PhP 100 million. Congress has now made its intention to exempt express in the challenged cityhood laws.
Legislative intent is part and parcel of the law, the controlling factor in interpreting a statute. In construing a
statute, the proper course is to start out and follow the true intent of the Legislature and to adopt the sense that
best harmonizes with the context and promotes in the fullest manner the policy and objects of the legislature. 43 In
fact, any interpretation that runs counter to the legislative intent is unacceptable and invalid. 44 Torres v.
Limjap  could not have been more precise:
The intent of a Statute is the Law. – If a statute is valid, it is to have effect according to the purpose and intent of
the lawmaker. The intent is x x x the essence of the law and the primary rule of construction is to ascertain and
give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced
when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the
letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions
inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In
construing statutes the proper course is to start out and follow the true intent of the legislature x x x. 45 (Emphasis
supplied.)
As emphasized at the outset, behind every law lies the presumption of constitutionality. 46 Consequently, to him
who would assert the unconstitutionality of a statute belongs the burden of proving otherwise. Laws will only be
declared invalid if a conflict with the Constitution is beyond reasonable doubt. 47 Unfortunately for petitioners and
petitioners-in-intervention, they failed to discharge their heavy burden.
It is contended that the deliberations on the cityhood bills and the covering joint resolution were undertaken in the
11th and/or the 12th Congress. Accordingly, so the argument goes, such deliberations, more particularly those on
the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not
qualify as extrinsic aids in construing the cityhood laws that were passed during the 13th Congress, Congress not
being a continuing body.
The argument is specious and glosses over the reality that the cityhood bills––which were already being
deliberated upon even perhaps before the conception of RA 9009––were again being considered during the 13th
Congress after being tossed around in the two previous Congresses. And specific reference to the cityhood bills
was also made during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not
a continuing legislative body. What is important is that the debates, deliberations, and proceedings of Congress
and the steps taken in the enactment of the law, in this case the cityhood laws in relation to RA 9009 or vice
versa, were part of its legislative history and may be consulted, if appropriate, as aids in the interpretation of the
law.48 And of course the earlier cited Drilon-Pimentel exchange on whether or not the 16 municipalities in question
would be covered by RA 9009 is another vital link to the historical chain of the cityhood bills. This and other
proceedings on the bills are spread in the Congressional journals, which cannot be conveniently reduced to pure
rhetoric without meaning whatsoever, on the simplistic and non-sequitur pretext that Congress is not a continuing
body and that unfinished business in either chamber is deemed terminated at the end of the term of Congress.
This brings us to the challenge to the constitutionality of cityhood laws on equal protection grounds.
To the petitioners, the cityhood laws, by granting special treatment to respondent municipalities/LGUs by way of
exemption from the standard PhP 100 million minimum income requirement, violate Sec.1, Art. III of the
Constitution, which in part provides that no person shall "be denied the equal protection of the laws."
Petitioners’ challenge is not well taken. At its most basic, the equal protection clause proscribes undue favor as
well as hostile discrimination. Hence, a law need not operate with equal force on all persons or things to be
conformable with Sec. 1, Art. III of the Constitution.
The equal protection guarantee is embraced in the broader and elastic concept of due process, every unfair
discrimination being an offense against the requirements of justice and fair play. It has nonetheless come as a
separate clause in Sec. 1, Art. III of the Constitution to provide for a more specific protection against any undue
discrimination or antagonism from government. Arbitrariness in general may be assailed on the basis of the due
process clause. But if a particular challenged act partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause. 49 This constitutional protection extends to all persons, natural
or artificial, within the territorial jurisdiction. Artificial persons, as the respondent LGUs herein, are, however,
entitled to protection only insofar as their property is concerned. 50
In the proceedings at bar, petitioner LCP and the intervenors cannot plausibly invoke the equal protection clause,
precisely because no deprivation of property results by virtue of the enactment of the cityhood laws. The LCP’s
claim that the IRA of its member-cities will be substantially reduced on account of the conversion into cities of the
respondent LGUs would not suffice to bring it within the ambit of the constitutional guarantee. Indeed, it is
presumptuous on the part of the LCP member-cities to already stake a claim on the IRA, as if it were their
property, as the IRA is yet to be allocated. For the same reason, the municipalities that are not covered by the
uniform exemption clause in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the
conversion of a municipality into a city will only affect its status as a political unit, but not its property as such.
As a matter of settled legal principle, the fundamental right of equal protection does not require absolute equality.
It is enough that all persons or things similarly situated should be treated alike, both as to rights or privileges
conferred and responsibilities or obligations imposed. The equal protection clause does not preclude the state
from recognizing and acting upon factual differences between individuals and classes. It recognizes that inherent
in the right to legislate is the right to classify,51 necessarily implying that the equality guaranteed is not violated by
a legislation based on reasonable classification. Classification, to be reasonable, must (1) rest on substantial
distinctions; (2) be germane to the purpose of the law; (3) not be limited to existing conditions only; and (4) apply
equally to all members of the same class.52 The Court finds that all these requisites have been met by the laws
challenged as arbitrary and discriminatory under the equal protection clause.
As things stand, the favorable treatment accorded the sixteen (16) municipalities by the cityhood laws rests on
substantial distinction. Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income
criterion instead of the stringent income requirement prescribed in RA 9009, are substantially different from other
municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood bills
before the passage of RA 9009. There lies part of the tipping difference. And years before the enactment of the
amendatory RA 9009, respondents LGUs had already met the income criterion exacted for cityhood under the
LGC of 1991. Due to extraneous circumstances, however, the bills for their conversion remained unacted upon by
Congress. As aptly observed by then Senator, now Manila Mayor, Alfredo Lim in his speech sponsoring H. Joint
Resolution No. 1, or the cityhood bills, respondent LGUs saw themselves confronted with the "changing of the
rules in the middle of the game." Some excerpts of Senator Lim’s sponsorship speech:
x x x [D]uring the Eleventh Congress, fifty-seven (57) municipalities applied for city status, confident that each has
met the requisites for conversion under Section 450 of the [LGC], particularly the income threshold of ₱20 million.
Of the 57 that filed, thirty-two (32) were enacted into law; x x x while the rest – twenty-four (24) in all – failed to
pass through Congress. Shortly before the long recess of Congress in February 2001, to give way to the May
elections x x x, Senate Bill No. 2157, which eventually became [RA] 9009, was passed into law, effectively raising
the income requirement for creation of cities to a whooping ₱100 million x x x. Much as the proponents of the 24
cityhood bills then pending struggled to beat the effectivity of the law on June 30, 2001, events that then unfolded
were swift and overwhelming that Congress just did not have the time to act on the measures.
Some of these intervening events were x x x the impeachment of President Estrada x x x and the May 2001
elections.
The imposition of a much higher income requirement for the creation of a city x x x was unfair; like any sport –
changing the rules in the middle of the game.
Undaunted, they came back during the [12th] Congress x x x. They filed House Joint Resolution No. 29 seeking
exemption from the higher income requirement of RA 9009. For the second time, [however], time ran out from
them.
For many of the municipalities whose Cityhood Bills are now under consideration, this year, at the closing days of
the [13th] Congress, marks their ninth year appealing for fairness and justice. x x x
I, for one, share their view that fairness dictates that they should be given a legal remedy by which they could be
allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the
[LGC] prior to its amendment by RA 9009. Hence, when House Joint Resolution No. 1 reached the Senate x x x I
immediately set the public hearing x x x. On July 25, 2006, I filed Committee Report No. 84 x x x. On September
6, I delivered the sponsorship x x x.
x x x By November 14, the measure had reverted to the period of individual amendments. This was when the then
acting majority leader, x x x informed the Body that Senator Pimentel and the proponents of House Joint
Resolution No. 1 have agreed to the proposal of the Minority Leader for the House to first approve the individual
Cityhood Bills of the qualified municipalities, along with the provision exempting each of them from the higher
income requirement of RA 9009. x x x This led to the certification issued by the proponents short-listing fourteen
(14) municipalities deemed to be qualified for city-status.
Acting on the suggestion of Senator Pimentel, the proponents lost no time in working for the approval by the
House of Representatives of their individual Cityhood Bills, each containing a provision of exemption from the
higher income requirement of RA 9009. On the last session day of last year, December 21, the House transmitted
to the Senate the Cityhood Bills of twelve out of the 14 pre-qualified municipalities. Your Committee immediately
conducted the public hearing x x x.
The whole process I enumerated [span] three Congresses x x x.
In essence, the Cityhood Bills now under consideration will have the same effect as that of House Joint Resolution
No. 1 because each of the 12 bills seeks exemption from the higher income requirement of RA 9009. The
proponents are invoking the exemption on the basis of justice and fairness.
Each of the 12 municipalities has all the requisites for conversion into a component city based on the old
requirements set forth under Section 450 of the [LGC], prior to its amendment by RA 9009, namely: x x
x53 (Emphasis supplied.)
In hindsight, the peculiar conditions, as depicted in Senator Lim’s speech, which respondent LGUs found
themselves in were unsettling. They were qualified cityhood applicants before the enactment of RA 009. Because
of events they had absolutely nothing to do with, a spoiler in the form of RA 9009 supervened. Now, then, to
impose on them the much higher income requirement after what they have gone through would appear to be
indeed "unfair," to borrow from Senator Lim. Thus, the imperatives of fairness dictate that they should be given a
legal remedy by which they would be allowed to prove that they have all the necessary qualifications for city
status, using the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009. Truly, the peculiar
conditions of respondent LGUs, which are actual and real, provide sufficient grounds for legislative classification.
To be sure, courts, regardless of doubts they might be entertaining, cannot question the wisdom of the
congressional classification, if reasonable, or the motivation underpinning the classification. 54 By the same token,
they do not sit to determine the propriety or efficacy of the remedies Congress has specifically chosen to extend.
That is its prerogative. The power of the Legislature to make distinctions and classifications among persons is, to
reiterate, neither curtailed nor denied by the equal protection clause. A law can be violative of the constitutional
limitation only when the classification is without reasonable basis.
The classification is also germane to the purpose of the law. The exemption of respondent LGUs/municipalities
from the PhP 100 million income requirement was meant to reduce the inequality occasioned by the passage of
the amendatory RA 9009. From another perspective, the exemption was unquestionably designed to insure that
fairness and justice would be accorded respondent LGUs. Let it be noted that what were then the cityhood bills
covering respondent LGUs were part and parcel of the original 57 conversion bills filed in the 11th Congress, 33 of
those became laws before the adjournment of that Congress. The then bills of the challenged cityhood laws were
not acted upon due, inter alia, to the impeachment of then President Estrada, the related jueteng scandal
investigations conducted before, and the EDSA events that followed the aborted impeachment.
While the equal protection guarantee frowns upon the creation of a privileged class without justification, inherent
in the equality clause is the exhortation for the Legislature to pass laws promoting equality or reducing existing
inequalities. The enactment of the cityhood laws was in a real sense an attempt on the part of Congress to
address the inequity dealt the respondent LGUs. These laws positively promoted the equality and eliminated the
inequality, doubtless unintended, between respondent municipalities and the thirty-three (33) other municipalities
whose cityhood bills were enacted during the 11th Congress. Respondent municipalities and the 33 other
municipalities, which had already been elevated to city status, were all found to be qualified under the old Sec.
450 of the LGC of 1991 during the 11th Congress. As such, both respondent LGUs and the 33 other former
municipalities are under like circumstances and conditions. There is, thus, no rhyme or reason why an exemption
from the PhP 100 million requirement cannot be given to respondent LGUs. Indeed, to deny respondent
LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the outset
they were similarly situated, is tantamount to denying the former the protective mantle of the equal protection
clause. In effect, petitioners and petitioners-in-intervention are creating an absurd situation in which an alleged
violation of the equal protection clause of the Constitution is remedied by another violation of the same clause.
The irony is not lost to the Court.
Then too the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of
its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To be more
precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities from the PhP 100
million criterion would hold sway, as long as the corresponding cityhood bill has been filed before the effectivity of
RA 9009 and the concerned municipality qualifies for conversion into a city under the original version of Sec. 450
of the LGC of 1991.
Viewed in its proper light, the common exemption clause in the cityhood laws is an application of the non-
retroactive effect of RA 9009 on the cityhood bills. It is not a declaration of certain rights, but a mere declaration of
prior qualification and/or compliance with the non-retroactive effect of RA 9009.
Lastly and in connection with the third requisite, the uniform exemption clause would apply to municipalities that
had pending cityhood bills before the passage of RA 9009 and were compliant with then Sec. 450 of the LGC of
1991, which prescribed an income requirement of PhP 20 million. It is hard to imagine, however, if there are still
municipalities out there belonging in context to the same class as the sixteen (16) respondent LGUs.
Municipalities that cannot claim to belong to the same class as the 16 cannot seek refuge in the cityhood laws.
The former have to comply with the PhP 100 million income requirement imposed by RA 9009.
A final consideration. The existence of the cities consequent to the approval of the creating, but challenged,
cityhood laws in the plebiscites held in the affected LGUs is now an operative fact. New cities appear to have
been organized and are functioning accordingly, with new sets of officials and employees. Other resulting events
need not be enumerated. The operative fact doctrine provides another reason for upholding the constitutionality of
the cityhood laws in question.
In view of the foregoing discussion, the Court ought to abandon as it hereby abandons and sets aside the
Decision of November 18, 2008 subject of reconsideration. And by way of summing up the main arguments in
support of this disposition, the Court hereby declares the following:
(1) Congress did not intend the increased income requirement in RA 9009 to apply to the cityhood bills
which became the cityhood laws in question. In other words, Congress intended the subject cityhood
laws to be exempted from the income requirement of PhP 100 million prescribed by RA 9009;
(2) The cityhood laws merely carry out the intent of RA 9009, now Sec. 450 of the LGC of 1991, to
exempt respondent LGUs from the PhP 100 million income requirement;
(3) The deliberations of the 11th or 12th Congress on unapproved bills or resolutions are extrinsic aids
in interpreting a law passed in the 13th Congress. It is really immaterial if Congress is not a continuing
body. The hearings and deliberations during the 11th and 12th Congress may still be used as extrinsic
reference inasmuch as the same cityhood bills which were filed before the passage of RA 9009 were
being considered during the 13th Congress. Courts may fall back on the history of a law, as here, as
extrinsic aid of statutory construction if the literal application of the law results in absurdity or injustice.
(4) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood
bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities
aiming for cityhood. On top of this, each of the 16 also met the PhP 20 million income level exacted
under the original Sec. 450 of the 1991 LGC.
And to stress the obvious, the cityhood laws are presumed constitutional. As we see it, petitioners have not
overturned the presumptive constitutionality of the laws in question.
WHEREFORE, respondent LGUs’ Motion for Reconsideration dated June 2, 2009, their "Motion to Amend the
Resolution of April 28, 2009 by Declaring Instead that Respondents’ ‘Motion for Reconsideration of the Resolution
of March 31, 2009’ and ‘Motion for Leave to File and to Admit Attached Second Motion for Reconsideration of the
Decision Dated November 18, 2008’ Remain Unresolved and to Conduct Further Proceedings," dated May 14,
2009, and their second Motion for Reconsideration of the Decision dated November 18, 2008 are GRANTED. The
June 2, 2009, the March 31, 2009, and April 31, 2009 Resolutions are REVERSED and SET ASIDE. The entry of
judgment made on May 21, 2009 must accordingly be RECALLED.
The instant consolidated petitions and petitions-in-intervention are DISMISSED. The cityhood laws, namely
Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435, 9436,
and 9491 are declared VALID and CONSTITUTIONAL.
SO ORDERED.
Case no. 8:
EN BANC
[A.M. NO. 11-7-10-SC - July 31, 2012]
Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired
Chief/Associate Justices of the Supreme Court.
RESOLUTION
PER CURIAM:
The present administrative matter stems from the two Memoranda, dated July 14, 2011 and August 10, 2010,
submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer, Office of
Administrative Services, to the Office of the Chief Justice. These
Memoranda essentially ask the Court to determine the proper formula to be used in computing the appraisal value
that a retired Chief Justice and several Associate Justices of the Supreme Court have to pay to acquire the
government properties they used during their tenure.
THE FACTUAL ANTECEDENTS
This issue has its roots in the June 8, 2010 Opinion 1 issued by the Legal Services Sector, Office of the General Justices,5 the COA upheld the in-house appraisal of government property using the formula found in the CFAG
Counsel of the Commission on Audit (COA), which found that an underpayment amounting to P221,021.50 guidelines. More importantly, the Constitution itself grants the Judiciary fiscal autonomy in the handling of its
resulted when five (5) retired Supreme Court justices purchased from the Supreme Court the personal properties budget and resources. Full autonomy, among others, 6 contemplates the guarantee of full flexibility in the allocation
assigned to them during their incumbency in the Court, to wit:ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ and utilization of the Judiciary s resources, based on its own determination of what it needs. The Court thus has
the recognized authority to allocate and disburse such sums as may be provided or required by law in the course
Valuation under
of the discharge of its functions.7 To allow the COA to substitute the Court s policy in the disposal of its property
Valuation under COA
Difference would be tantamount to an encroachment into this judicial prerogative.
Name of Justice Items Purchased CFAG Memorandum
(in pesos) OUR RULING
(in pesos) No. 98-569A
(in pesos) We find Atty. Candelaria s recommendation to be well-taken.
The COA s authority to conduct post-audit examinations on constitutional bodies granted fiscal autonomy is
Artemio Panganiban Toyota Camry, 341,241.10 365,000.00 23,758.90 provided under Section 2(1), Article IX-D of the 1987 Constitution, which states:ςrαlαω
(Chief Justice) 2003 model Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all
accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or
Toyota Grandia, 136,500.00 151,000.00 14,500.00 held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities,
2002 model including government-owned or controlled corporations with original charters, and on a post-audit basis: (a)
constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution.
Toyota Camry, 115,800.00 156,000.00 40,200.00
emphasis ours
2001 model
This authority, however, must be read not only in light of the Court s fiscal autonomy, but also in relation with the
Ruben T. Reyes Toyota Camry, 579,532.50 580,600.00 1,067.50 constitutional provisions on judicial independence and the existing jurisprudence and Court rulings on these
(Associate Justice) 2005 model matters.
Separation of Powers and Judicial Independence
Toyota Grandia, 117,300.00 181,200.00 63,900.00 In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as follows:Ï‚rαlαω
2003 model The separation of powers is a fundamental principle in our system of government. It obtains not through express
provision but by actual division in our Constitution. Each department of the government has exclusive cognizance
Angelina S. Gutierrez Toyota Grandia, 115,800.00 150,600.00 34,800.00 of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the
(Associate Justice) 2002 model three powers are to be kept separate and distinct that the Constitution intended them to be absolutely
Adolfo S. Azcuna Toyota Camry, 536,105.00 543,300.00 9,195.00 unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and
(Associate Justice) 2005 model balances to secure coordination in the workings of the various departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the
Toyota Grandia, 117,300.00 145,000.00 27,700.00 exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of
2002 model the Constitution.9ςrνll
The concept of the independence of the three branches of government, on the other hand, extends from the
Sony TV Set 2,399.90 2,500.00 100.10 notion that the powers of government must be divided to avoid concentration of these powers in any one branch;
the division, it is hoped, would avoid any single branch from lording its power over the other branches or the
Ma. Alicia 5,800.002
citizenry.10 To achieve this purpose, the divided power must be wielded by co-equal branches of government that
The COA attributed this underpayment to the use by the Property Division of the Supreme Court of the wrong are equally capable of independent action in exercising their respective mandates; lack of independence would
formula in computing the appraisal value of the purchased vehicles. According to the COA, the Property Division result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or
erroneously appraised the subject motor vehicles by applying Constitutional Fiscal Autonomy Group (CFAG) Joint others.11ςrνll
Resolution No. 35 dated April 23, 1997 and its guidelines, in compliance with the Resolution of the Court En Banc Under the Judiciary s unique circumstances, independence encompasses the idea that individual judges can
dated March 23, 2004 in A.M. No. 03-12-01,3 when it should have applied the formula found in COA Memorandum freely exercise their mandate to resolve justiciable disputes, while the judicial branch, as a whole, should work in
No. 98-569-A4 dated August 5, 1998. the discharge of its constitutional functions free of restraints and influence from the other branches, save only for
Recommendations of the Office of Administrative Services In her Memorandum dated August 10, 2010, Atty. those imposed by the Constitution itself.12 Thus, judicial independence can be "broken down into two distinct
Candelaria recommended that the Court advise the COA to respect the in-house computation based on the CFAG concepts: decisional independence and institutional independence." 13 Decisional independence "refers to a judge
formula, noting that this was the first time that the COA questioned the authority of the Court in using CFAG Joint s ability to render decisions free from political or popular influence based solely on the individual facts and
Resolution No. 35 and its guidelines in the appraisal and disposal of government property since these were issued applicable law."14 On the other hand, institutional independence "describes the separation of the judicial branch
in 1997. As a matter of fact, in two previous instances involving two (2) retired Court of Appeals Associate
from the executive and legislative branches of government." 15 Simply put, institutional independence refers to the
"collective independence of the judiciary as a body."16ςrνll
In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in
Malaya Dated September 18, 19, 20 and 21, 2007, 17 the Court delineated the distinctions between the two
concepts of judicial independence in the following manner:ςrαlαω
One concept is individual judicial independence, which focuses on each particular judge and seeks to insure his or
her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of independence
when he can do his job without having to hear or at least without having to take it seriously if he does hear
criticisms of his personal morality and fitness for judicial office. The second concept is institutional judicial
independence. It focuses on the independence of the judiciary as a branch of government and protects judges as
a class.
A truly independent judiciary is possible only when both concepts of independence are preserved - wherein public
confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of
judicial authority. An erosion of this confidence threatens the maintenance of an independent Third Estate. italics
and emphases ours Recognizing the vital role that the Judiciary plays in our system of government as the sole
repository of judicial power, with the power to determine whether any act of any branch or instrumentality of the
government is attended with grave abuse of discretion, 18 no less than the Constitution provides a number of
safeguards to ensure that judicial independence is protected and maintained.
The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction, as enumerated
in Section 5, Article VII of the Constitution, or from passing a law that undermines the security of tenure of the
members of the judiciary.19 The Constitution also mandates that the judiciary shall enjoy fiscal autonomy, 20 and
grants the Supreme Court administrative supervision over all courts and judicial personnel. Jurisprudence 21 has
characterized administrative supervision as exclusive, noting that only the Supreme Court can oversee the judges
and court personnel's compliance with all laws, rules and regulations. No other branch of government may intrude
into this power, without running afoul of the doctrine of separation of powers. 22ςrνll
The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease in their salary
during their continuance in office,23 and ensures their security of tenure by providing that "Members of the
Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of
seventy years or become incapacitated to discharge the duties of their office." 24 With these guarantees, justices
and judges can administer justice undeterred by any fear of reprisals brought on by their judicial action. They can
act inspired solely by their knowledge of the law and by the dictates of their conscience, free from the corrupting
influence of base or unworthy motives.25ςrνll
All of these constitutional provisions were put in place to strengthen judicial independence, not only by clearly
stating the Court s powers, but also by providing express limits on the power of the two other branches of
government to interfere with the Court s affairs.
Fiscal Autonomy
One of the most important aspects of judicial independence is the constitutional grant of fiscal autonomy. Just as
the Executive may not prevent a judge from discharging his or her judicial duty (for example, by physically
preventing a court from holding its hearings) and just as the Legislature may not enact laws removing all
jurisdiction from courts,26 the courts may not be obstructed from their freedom to use or dispose of their funds for
purposes germane to judicial functions. While, as a general proposition, the authority of legislatures to control the
purse in the first instance is unquestioned, any form of interference by the Legislative or the Executive on the
Judiciary s fiscal autonomy amounts to an improper check on a co-equal branch of government. If the judicial
branch is to perform its primary function of adjudication, it must be able to command adequate resources for that
purpose. This authority to exercise (or to compel the exercise of) legislative power over the national purse (which
at first blush appears to be a violation of concepts of separateness and an invasion of legislative autonomy) is
necessary to maintain judicial independence27 and is expressly provided for by the Constitution through the grant
of fiscal autonomy under Section 3, Article VIII. This provision states:ςrαlαω
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the
legislature below the amount appropriated for the previous year and, after approval, shall be automatically and
regularly released.
In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal autonomy in the following
manner:ςrαlαω
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee
of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It
recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay plans of the government and allocate and disburse
such sums as may be provided by law or prescribed by them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but
DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us,
the autonomy given by the Constitution becomes an empty and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema
to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and
the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that
this grant of autonomy should cease to be a meaningless provision. 29 (emphases ours)
In this cited case, the Court set aside President Corazon Aquino s veto of particular provisions of the General
Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired justices of
the Supreme Court and the Court of Appeals, on the basis of the Judiciary s constitutionally guaranteed
independence and fiscal autonomy. The Court ruled:ςrαlαω
In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating
to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the
Chief Justice to make adjustments in the utilization of the funds appropriated from the expenditures of the
judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of
the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the
disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal
restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is
needed.30ςrνll
The Court s declarations in Bengzon make it clear that the grant of fiscal autonomy to the Judiciary is more
extensive than the mere automatic and regular release of its approved annual appropriations; 31 real fiscal
autonomy covers the grant to the Judiciary of the authority to use and dispose of its funds and properties at will,
free from any outside control or interference.
Application to the Present Case
The Judiciary s fiscal autonomy is realized through the actions of the Chief Justice, as its head, and of the
Supreme Court En Banc, in the exercise of administrative control and supervision of the courts and its personnel.
As the Court En Banc s Resolution (dated March 23, 2004) in A.M. No. 03-12-01 reflects, the fiscal autonomy of
the Judiciary serves as the basis in allowing the sale of the Judiciary s properties to retiring Justices of the
Supreme Court and the appellate courts:ςrαlαω
WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon (G.R. No. 103524,
15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate and utilize (its) resources with the
wisdom and dispatch that (its) needs require";
WHEREAS, the long-established tradition and practice of Justices or Members of appellate courts of purchasing
for sentimental reasons at retirement government properties they used during their tenure has been recognized as
a privilege enjoyed only by such government officials; andcralawlibrary
WHEREAS, the exercise of such privilege needs regulation to the end that respect for sentiments that a retiring
Justice attaches to properties he or she officially used during his or her tenure should be in consonance with the
need for restraint in the utilization and disposition of government resources.
By way of a long standing tradition, partly based on the intention to reward long and faithful service, the sale to the
retired Justices of specifically designated properties that they used during their incumbency has been recognized
both as a privilege and a benefit. This has become an established practice within the Judiciary that even the COA
has previously recognized.32 The En Banc Resolution also deems the grant of the privilege as a form of additional
retirement benefit that the Court can grant its officials and employees in the exercise of its power of administrative
supervision. Under this administrative authority, the Court has the power to administer the Judiciary s internal
affairs, and this includes the authority to handle and manage the retirement applications and entitlements of its
personnel as provided by law and by its own grants. 33ςrνll
Thus, under the guarantees of the Judiciary s fiscal autonomy and its independence, the Chief Justice and the
Court En Banc determine and decide the who, what, where, when and how of the privileges and benefits they
extend to justices, judges, court officials and court personnel within the parameters of the Court s granted power;
they determine the terms, conditions and restrictions of the grant as grantor.
In the context of the grant now in issue, the use of the formula provided in CFAG Joint Resolution No. 35 is a part
of the Court s exercise of its discretionary authority to determine the manner the granted retirement privileges and
benefits can be availed of. Any kind of interference on how these retirement privileges and benefits are exercised
and availed of, not only violates the fiscal autonomy and independence of the Judiciary, but also encroaches upon
the constitutional duty and privilege of the Chief Justice and the Supreme Court En Banc to manage the Judiciary
s own affairs.
As a final point, we add that this view finds full support in the Government Accounting and Auditing Manual
(GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which states:ςrαlαω
Section 501. Authority or responsibility for property disposal/divestment. The full and sole authority and
responsibility for the divestment and disposal of property and other assets owned by the national government
agencies or instrumentalities, local government units and government-owned and/or controlled corporations and
their subsidiaries shall be lodged in the heads of the departments, bureaus, and offices of the national
government, the local government units and the governing bodies or managing heads of government-owned or
controlled corporations and their subsidiaries conformably to their respective corporate charters or articles of
incorporation, who shall constitute the appropriate committee or body to undertake the same. italics supplied;
emphases ours
This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the full and sole
authority and responsibility to divest and dispose of the properties and assets of the Judiciary; as Head of Office,
he determines the manner and the conditions of disposition, which in this case relate to a benefit. As the usual
practice of the Court, this authority is exercised by the Chief Justice in consultation with the Court En Banc.
However, whether exercised by the Chief Justice or by the Supreme Court En Banc, the grant of such authority
and discretion is unequivocal and leaves no room for interpretations and insertions.
ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by the Property
Division, Office of `Administrative Services, of the properties purchased by the retired Chief Justice and Associate
Justices of the Supreme Court, based on CFAG Joint Resolution No. 35 dated April 23, 1997, as directed under
the Court Resolution dated March 23, 2004 in A.M. No. 03-12-01, is CONFIRMED to be legal and valid. Let the
Commission on Audit be accordingly advised of this Resolution for its guidance.
SO ORDERED.
Case no. 9:
A.M. No. 13-09-08-SC               October 1, 2013
RE: REQUEST FOR GUIDANCE/CLARIFICATION ON SECTION 7, RULE III OF REPUBLIC ACT NO. 10154
REQUIRING RETIRING GOVERNMENT EMPLOYEES TO SECURE A CLEARANCE OF PENDENCY/NON-
PENDENCY OF CASE/S FROM THE CIVIL SERVICE COMMISSION.
RESOLUTION
PERLAS-BERNABE, J.:
Before the Court is a Memorandum dated September 18, 2013 from Atty. Eden T. Candelaria, Deputy Clerk of
Court and Chief Administrative Officer, Office of Administrative Services of the Supreme Court, requesting
guidance/clarification on the applicability to the Judiciary of Section 7, Rule III of the Implementing Rules and
Regulations of Republic Act No. (RA) 101541 which states:
Section 7. Notice of Pendency of Case. The retiring employee shall seek Clearance of Pendency/Non-Pendency
of Administrative Case from his/her employer agency, Civil Service Commission (CSC), Office of the
Ombudsman, or in case of presidential appointees, from the Office of the President.
Section 6,2 Article VIII of the 1987 Philippine Constitution (Constitution) exclusively vests in the Court
administrative supervision over all courts and court personnel. 3 As such, it oversees the court personnel’s
compliance with all laws and takes the proper administrative action against them for any violation thereof. 4 As an
adjunct thereto, it keeps in its custody records pertaining to the administrative cases of retiring court
personnel.1âwphi1
In view of the foregoing, the Court rules that the subject provision – which requires retiring government employees
to secure a prior clearance of pendency/non-pendency of administrative case/s from, among others, the CSC –
should not be made to apply to employees of the Judiciary. 1âwphi1 To deem it otherwise would disregard the
Court’s constitutionally-enshrined power of administrative supervision over its personnel. Besides, retiring court
personnel are already required to secure a prior clearance of the pendency/non-pendency of administrative case/s
from the Court which makes the CSC clearance a superfluous and non-expeditious requirement contrary to the
declared state policy of RA 10154.5
To further clarify the matter, the same principles dictate that a prior clearance of pendency/non-pendency of
administrative case/s from the Office of the President (albeit some court personnel are presidential appointees,
e.g., Supreme Court Justices) or the Office of the Ombudsman should not equally apply to retiring court
personnel. Verily, the administrative supervision of court personnel and all affairs related thereto fall within the
exclusive province of the Judiciary.
It must, however, be noted that since the Constitution only accords the Judiciary administrative supervision over
its personnel, a different treatment of the clearance requirement obtains with respect to criminal cases. As such, a
clearance requirement which pertains to criminal cases may be imposed by the appropriate government agency,
i.e., the Office of the Ombudsman,6 on retiring court personnel as it is a matter beyond the ambit of the Judiciary’s
power of administrative supervision.
WHEREFORE, the requirement of seeking a Clearance of Pendency/Non-Pendency of Administrative Case from
the Civil Service Commission embodied in Section 7, Rule III of the Implementing Rules and Regulations of
Republic Act No. 10154 is declared INAPPLICABLE to retiring employees of the Judiciary.
SO ORDERED.
Case no. 10:
G.R. No. 213181               August 19, 2014
FRANCIS H. JARDELEZA Petitioner,
vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., Respondents.
DECISION
MENDOZA, J.:
Once again, the Couii is faced with a controversy involving the acts of an independent body, which is considered
as a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time that the Court is called
upon to settle legal questions surrounding the JBC's exercise of its constitutional mandate. In De Castro v.
JBC,1 the Court laid to rest issues such as the duty of the JBC to recommend prospective nominees for the
position of Chief Justice vis-à-vis the appointing power of the President, the period within which the same may be
exercised, and the ban on midnight appointments as set forth in the Constitution. In Chavez v. JBC, 2 the Court
provided an extensive discourse on constitutional intent as to the JBC’s composition and membership.
This time, however, the selection and nomination process actually undertaken by the JBC is being challenged for
being constitutionally infirm. The heart of the debate lies not only on the very soundness and validity of the
application of JBC rules but also the extent of its discretionary power. More significantly, this case of first
impression impugns the end-result of its acts - the shortlistfrom which the President appoints a deserving addition
to the Highest Tribunal of the land.
To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief Justice herself,
was being impleaded as party respondent.
The Facts
The present case finds its genesis from the compulsory retirement of Associate Justice Roberto Abad (Associate
Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in accordance with its rules, 3 the JBC
announced the opening for application or recommendation for the said vacated position.
On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the Philippines
nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of the Republic, for the said
position. Upon acceptance of the nomination, Jardeleza was included in the names of candidates, as well as in
the schedule of public interviews. On May 29, 2014, Jardeleza was interviewed by the JBC.
It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received telephone
callsfrom former Court of Appeals Associate Justice and incumbent JBC member, Aurora Santiago Lagman
(Justice Lagman), who informed him that during the meetings held on June 5 and 16, 2014, Chief Justice and JBC
ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice Sereno),manifested that she would be invoking
Section 2, Rule 10 of JBC-0094 against him. Jardeleza was then directed to "make himself available" before the
JBC on June 30, 2014, during which he would be informed of the objections to his integrity.
Consequently, Jardeleza filed a letter-petition (letter-petition) 5 praying that the Court, in the exercise of
itsconstitutional power of supervision over the JBC, issue an order: 1) directing the JBC to give him at least five
(5) working days written notice of any hearing of the JBC to which he would be summoned; and the said notice to
contain the sworn specifications of the charges against him by his oppositors, the sworn statements of supporting
witnesses, if any, and copies of documents in support of the charges; and notice and sworn statements shall be
made part of the public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting
witnesses, if any, and the cross-examination to be conducted in public, under the same conditions that attend the
publicinterviews held for all applicants; 3) directing the JBC to reset the hearing scheduled on June 30, 2014 to
another date; and 4) directing the JBC to disallow Chief Justice Sereno from participating in the voting on June
30,2014 or at any adjournment thereof where such vote would be taken for the nominees for the position vacated
by Associate Justice Abad.
During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio T. Carpio
(Associate Justice Carpio) appeared as a resource person to shed light on a classified legal memorandum (legal
memorandum) that would clarify the objection to Jardeleza’s integrity as posed by Chief Justice Sereno.
According to the JBC, Chief Justice Sereno questioned Jardeleza’s ability to discharge the duties of his office as
shown in a confidential legal memorandum over his handling of an international arbitration case for the
government.
Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice Secretary Leila M.
De Lima (Secretary De Lima) informed him that Associate Justice Carpio appeared before the JBC and disclosed
confidential information which, to Chief Justice Sereno, characterized his integrity as dubious. After the briefing,
Jardeleza was summoned by the JBC at around 2:00o’clock in the afternoon.
Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against the integrity
issues raised against him. He answered that he would defend himself provided that due process would be
observed. Jardeleza specifically demanded that Chief Justice Sereno execute a sworn statement specifying her
objectionsand that he be afforded the right to cross-examine her in a public hearing. He requested that the same
directive should also be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G.
Tupas Jr. also manifested that he wanted to hear for himself Jardeleza’s explanation on the matter. Jardeleza,
however, refused as he would not be lulled intowaiving his rights. Jardeleza then put into record a written
statement6 expressing his views on the situation and requested the JBC to defer its meeting considering that the
Court en banc would meet the next day to act on his pending letter-petition. At this juncture, Jardeleza was
excused.
Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of the
proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to be included in the
shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which included: Apolinario D.
Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria Gracia M. Pulido Tan with five (5)
votes, and Reynaldo B. Daway with four (4) votes.7
As mentioned in the petition, a newspaper article was later published in the online portal of the Philippine Daily
Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that there were actually five (5)
nominees who made it to the JBC shortlist, but one (1) nominee could not be included because of the invocation
of Rule 10, Section 2 of the JBC rules.
In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of the JBC list of
nominees to the Office of the President, "without prejudice to any remedy available in law and the rules that
petitioner may still wish to pursue."8 The said resolution was accompanied by an extensive Dissenting Opinion
penned by Associate Justice Arturo D. Brion,9 expressing his respectful disagreement as to the position taken by
the majority.
The Petition
Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in law,
Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the Rules of Court with prayer
for the issuance of a Temporary Restraining Order (TRO), seeking to compel the JBC to include him in the list
ofnominees for Supreme Court Associate Justice viceAssociate Justice Abad, on the grounds that the JBC and
Chief Justice Sereno acted in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding
him, despite having garnered a sufficient number of votes to qualify for the position.
Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and its
concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after the controversial
JBC meeting. By the time that his letter-petition was scheduled for deliberation by the Court en bancon July 8,
2014, the disputedshortlist had already been transmitted to the Office of the President. He attributedthis belated
action on his letter-petition to Chief Justice Sereno, whose action on such matters, especially those impressed
withurgency, was discretionary.
An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges on the
alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his constitutional right to due
process; and 2) the JBC’s erroneous application, if not direct violation, of its own rules. Suffice it to say,
Jardelezadirectly ascribes the supposed violation of his constitutional rights tothe acts of Chief Justice Sereno in
raising objections against his integrity and the manner by which the JBC addressed this challenge to his
application, resulting in his arbitrary exclusion from the list of nominees.
Jardeleza’s Position
For a better understanding of the above postulates proffered in the petition, the Court hereunder
succinctlysummarizes Jardeleza’s arguments, as follows:
A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading up to and
during the vote on the shortlist last June 30, 2014. When accusations against his integrity were made twice, ex
parte, by Chief Justice Sereno, without informing him of the nature and cause thereof and without affording him an
opportunity to be heard, Jardeleza was deprived of his right to due process. In turn, the JBC violated his right to
due process when he was simply ordered to make himself available on the June 30, 2014 meeting and was told
that the objections to his integrity would be made known to him on the same day. Apart from mere verbal notice
(by way of a telephone call) of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on
the accusations against him per se, he was deprived of an opportunity to mount a proper defense against it. Not
only did the JBC fail to ventilate questions on his integrity during his public interview, he was also divested of his
rights as an applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:
Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the ground of his
moral fitness and, at its discretion, the Council may receive the testimony of the oppositor at a hearing conducted
for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer
countervailing evidence.
Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given due course,
unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In
the latter case, the Council may direct a discreet investigation or require the applicant to comment thereon in
writing or during the interview.
His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation conveyed to
him that Associate Justice Carpio testified against him) and as to the nature of the very accusations against him
caused him to suffer from the arbitrary action by the JBC and Chief Justice Sereno. The latter gravely abused her
discretion when she acted as prosecutor, witness and judge,thereby violating the very essence of fair play and the
Constitution itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief Justice to
assume these roles, nor does it dispense with the need to honor petitioner’s right to due process." 10
B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of nominees, in violation
of its own rules. The "unanimity requirement" provided under Section 2, Rule10 of JBC-009 does not find
application when a member of the JBC raises an objection to an applicant’s integrity. Here, the lone objector
constituted a part of the membership of the body set to vote. The lone objector could be completely capable
oftaking hostage the entire voting process by the mere expediency of raising an objection. Chief Justice Sereno’s
interpretation of the rule would allow a situation where all thata member has to do to veto other votes, including
majority votes, would be to object to the qualification of a candidate, without need for factual basis.
C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include Jardeleza in
the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for appointment to a judicial
position requires the affirmative vote of at least a majority of all members of the JBC. The JBC cannot disregard
its own rules. Considering that Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is
that a majority of the members of the JBC found him to be qualified for the position of Associate Justice.
D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s constitutional power to
appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed the President’s choices. Simply put, the
President would be constrained to choose from among four (4) nominees, when five (5) applicants rightfully
qualified for the position. This limits the President to appoint a member of the Court from a list generated through
a process tainted with patent constitutional violations and disregard for rules of justice and fair play. Until these
constitutional infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate
Justice viceAssociate Justice Abad.
Comment of the JBC
On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked proceduraland
substantive bases that would warrant favorable action by the Court. For the JBC, certiorariis only available against
a tribunal, a board or an officer exercising judicial or quasijudicial functions. 11 The JBC, in its exercise of its
mandate to recommend appointees to the Judiciary, does not exercise any of these functions. In a pending
case,12 Jardeleza himself, as one of the lawyers for the government, argued in this wise: Certioraricannot issue
against the JBC in the implementation of its policies.
In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a discretionary act. For
it to prosper, a petition for mandamus must, among other things, show that the petitioner has a clear legal right to
the act demanded. In Jardeleza’s case, there is no legal right to be included in the list of nominees for judicial
vacancies. Possession of the constitutional and statutory qualifications for appointment to the Judiciary may not
be used to legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s
inclusion in the shortlist is strictly within the discretion of the JBC.
Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process. The JBC
reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and informed him that Chief
Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a question on his integrity based on the
way he handled a very important case for the government. Jardeleza and Justice Lagman spoke briefly about the
case and his general explanation on how he handled the same. Secretary De Lima likewise informed him about
the content of the impending objection against his application. On these occasions, Jardeleza agreed to explain
himself. Come the June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against
him,as he chose to deliver a statement, which, in essence, requested that his accuser and her witnesses file
sworn statements so that he would know of the allegations against him, that he be allowed to cross-examine the
witnesses;and that the procedure be done on record and in public.
In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of the JBC on
the issues raised against him prior to the voting process. His request for a sworn statement and opportunity to
cross-examine is not supported by a demandable right. The JBC is not a fact-finding body. Neitheris it a court nor
a quasi-judicial agency. The members are notconcerned with the determination of his guilt or innocence of the
accusations against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use
of the word "may." Even the conduct of a hearing to determine the veracity of an opposition is discretionary on the
JBC. Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition, the JBC
would not call a hearing in order to avoid undue delay of the selection process. Each member of the JBC relies on
his or her own appreciation of the circumstances and qualifications of applicants.
The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is included in
the shortlist when he or she obtains an affirmative vote of at least a majority of all the members of the JBC. When
Section 2, Rule 10 of JBC-009,however, is invoked because an applicant’s integrity is challenged, a unanimous
vote is required. Thus, when Chief Justice Sereno invoked the saidprovision, Jardeleza needed the affirmative
vote of all the JBC members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against
Jardeleza was not counted. Even then, he needed the votes of the five(5) remaining members. He only got four
(4) affirmative votes. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who gotfour
(4) affirmative votes, was included in the shortlist because his integrity was not challenged. As to him, the
"majority rule" was considered applicable.
Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General. Despiteclaiming a
prefatory appearance in propria persona, all pleadings filed with the Court were signed in his official capacity. In
effect, he sued the respondents to pursue a purely private interest while retaining the office of the Solicitor
General. By suing the very parties he was tasked by law to defend, Jardeleza knowingly placed himself in a
situation where his personal interests collided against his public duties, in clear violation of the Code of
Professional Responsibility and Code of Professional Ethics. Moreover, the respondents are all public officials
being sued in their official capacity. By retaining his title as Solicitor General, and suing in the said capacity,
Jardeleza filed a suit against his own clients, being the legal defender of the government and its officers. This runs
contrary to the fiduciary relationship sharedby a lawyer and his client.
In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the constitutional period
within which a vacancy in the Court must be filled. As things now stand, the President has until August 20, 2014 to
exercise his appointment power which cannot be restrained by a TRO or an injunctive suit.
Comment of the Executive Secretary
In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible
unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting threshold in
cases where the integrity of an applicant is challenged. It is his position that the subject JBC rule impairs the
body’s collegial character, which essentially operates on the basis of majority rule. The application of Section 2,
Rule 10 of JBC-009 gives rise to a situation where all that a member needs to do, in order to disqualify an
applicant who may well have already obtained a majority vote, is to object to his integrity. In effect, a member who
invokes the said provision is given a veto powerthat undermines the equal and full participation of the other
members in the nomination process. A lone objector may then override the will ofthe majority, rendering illusory,
the collegial nature of the JBC and the very purpose for which it was created— to shield the appointment process
from political maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not
allow an applicant any meaningful opportunity to refute the challenges to his integrity. While other provisions of
the JBC rules provide mechanisms enabling an applicant to comment on an opposition filed against him, the
subject rule does not afford the same opportunity. In this case, Jardeleza’s allegations as to the events which
transpired on June 30, 2014 obviously show that he was neither informed ofthe accusations against him nor given
the chance to muster a defense thereto.
The Executive Secretary then offered a supposition: granting that the subject provision is held to be constitutional,
the "unanimity rule" would only be operative when the objector is not a member of the JBC. It is only in this
scenario where the voting ofthe body would not be rendered inconsequential. In the event that a JBC member
raised the objection, what should have been applied is the general rule of a majority vote, where any JBC member
retains their respective reservations to an application with a negative vote. Corollary thereto, the
unconstitutionality of the said rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the
President.
Other pleadings
On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its Comment. He
submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten minutes prior to the closing
of business, the Court received the Supplemental Comment-Reply of the JBC, this time with the attached minutes
of the proceedings that led to the filing of the petition,and a detailed "Statementof the Chief Justice on the Integrity
Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s original Comment,
as it was filed prior to the filing of the Supplemental Comment-Reply.
At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-intervention were filed.
One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the President of the Integrated Bar of the
Philippines-Bulacan Chapter. This pleading echoed the position of the JBC. 14
The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP Baguio-Benguet
Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a complaint for disbarment against
Jardeleza primarily for violations of the Code of Professional Responsibility for representing conflicting interests. 15
Both motions for intervention weredenied considering that time was of the essence and their motions were merely
reiterative of the positions of the JBC and were perceived to be dilatory. The complaint for disbarment, however,
was re-docketed as a separate administrative case.
The Issues
Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the resolution of one
issue would necessarily affect the conclusion as to the others, the Court opts to narrow down the questions to the
very source of the discord - the correct application of Section 2, Rule 10 JBC-009 and its effects, if any, on the
substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the
unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its application. It is
only from the comment of the Executive Secretary where the possible unconstitutionality of the rulewas brought to
the fore. Despite this milieu, a practical approach dictatesthat the Court must confront the source of the bleeding
from which the gaping wound presented to the Court suffers.
The issues for resolution are:
I.
WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO THE SUBJECT
PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A TEMPORARY RESTRAINING
ORDER).
II
WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR CHALLENGES ON
INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-009.
II.
WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC
PROCEEDINGS IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS RAISED.
III.
WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF NOMINEES
SUBMITTED TO THE PRESIDENT.
The Court’s Ruling
I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case
A - The Court’s Power of Supervision over the JBC
Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was given
supervisory authority over it. Section 8 reads:
Section 8.
A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and
a representative of the private sector. [Emphasis supplied]
As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the power of
oversight, or the authority to see that subordinate officers perform their duties.It ensures that the laws and the
rules governing the conduct of a government entity are observed and complied with. Supervising officials see to it
that rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify
or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to
such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this
matter except to see to it that the rules are followed. 16
Based on this, the supervisory authority of the Court over the JBC covers the overseeing of compliance with its
rules. In this case, Jardeleza’s principal allegations in his petition merit the exercise of this supervisory authority.
B- Availability of the Remedy of Mandamus
The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel the
performance, when refused, of a ministerial duty, but not to compel the performance of a discretionary duty.
Mandamuswill not issue to control or review the exercise of discretion of a public officer where the law imposes
upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is
required to act. It is his judgment that is to be exercised and not that of the court. 17 There is no question that the
JBC’s duty to nominate is discretionary and it may not becompelled to do something.
C- Availability of the Remedy of Certiorari
Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or quasi-judicial
functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a tribunal exercising judicial or quasi-
judicial function. "Judicial functions are exercised by a body or officer clothed with authority to determine what the
law is and what the legal rights of the parties are with respect to the matter in controversy. Quasijudicial function is
a term that applies to the action or discretion of public administrative officers or bodies given the authority to
investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for
their official action using discretion of a judicial nature." 18 It asserts that in the performance of its function of
recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial functions. Hence,
the resort tosuch remedy to question its actions is improper.
In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was negated by
the invocation of the "unanimity rule" on integrity in violation of his right to due process guaranteed not only by the
Constitution but by the Council’s own rules. For said reason, the Court is of the position that it can exercise the
expanded judicial power of review vestedupon it by the 1987 Constitution. Thus:
Article VIII.
Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may be established by
law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any branch or
instrumentality of the government on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch orinstrumentality of the government, even if the latter does not exercise judicial, quasi-
judicial or ministerial functions.19
In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find passivity as an
alternative. The impassemust be overcome.
II – Substantial Issues
Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged
The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration that"[a]
member of the judiciary must be a person of proven competence, integrity, probity, and independence." To ensure
the fulfillment of these standards in every member of the Judiciary, the JBC has been tasked toscreen aspiring
judges and justices, among others, making certain that the nominees submitted to the President are all qualified
and suitably best for appointment. In this way, the appointing process itself is shieldedfrom the possibility of
extending judicial appointment to the undeserving and mediocre and, more importantly, to the ineligible or
disqualified.
In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of JBC-009, that
qualifications such as "competence, integrity, probity and independence are not easily determinable as they are
developed and nurtured through the years." Additionally, "it is not possible or advisable to lay down iron-clad rules
to determine the fitness of those who aspire to become a Justice, Judge, Ombudsman or Deputy Ombudsman."
Given this realistic situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and
principles." A set of uniform criteria had to be established in the ascertainment of "whether one meets the
minimum constitutional qualifications and possesses qualities of mind and heart expected of him" and his office.
Likewise for the sake oftransparency of its proceedings, the JBC had put these criteria in writing, now in the form
of JBC-009. True enough, guidelines have been set inthe determination of competence," 20 "probity and
independence,"21 "soundness of physical and mental condition,22 and "integrity."23
As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-009, "integrity" is
closely related to, or if not, approximately equated to an applicant’s good reputation for honesty, incorruptibility,
irreproachableconduct, and fidelity to sound moral and ethical standards. That is why proof of an applicant’s
reputation may be shown in certifications or testimonials from reputable government officials and non-
governmental organizations and clearances from the courts, National Bureau of Investigation, and the police,
among others. In fact, the JBC may even conduct a discreet background check and receive feedback from the
public on the integrity, reputation and character of the applicant, the merits of which shall be verifiedand checked.
As a qualification, the term is taken to refer to a virtue, such that, "integrity is the quality of person’s character." 24
The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing the "unanimity
rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10 of JBC-009 provides:
SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where the integrity of
an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the
Members of the Council must be obtained for the favorable consideration of his nomination.
A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement is absolute in
cases where the integrity of an applicant is questioned. Simply put, when an integrity question arises, the voting
requirement for his or her inclusion as a nominee to a judicial post becomes "unanimous" instead of the "majority
vote" required in the preceding section.25 Considering that JBC-009 employs the term "integrity" as an essential
qualification for appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the
unanimous vote of all the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the
rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009 envisions only a situation where an
applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into operation when the
moral character of a person is put in issue. It finds no application where the question is essentially unrelated to an
applicant’s moral uprightness.
Examining the "questions of integrity" made against Jardeleza
The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s case.
The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during the June 30,
2014 meeting, not only the question on his actuations in the handling of a case was called for explanation by the
Chief Justice, but two other grounds as well tending to show his lack of integrity: a supposed extra-marital affair in
the past and alleged acts of insider trading.26
Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule 10 of JBC-
009 was grounded on Jardeleza’s "inability to discharge the duties of his office" as shown in a legal memorandum
related to Jardeleza’s manner of representing the government in a legal dispute. The records bear that the
"unanimity rule" was initially invoked by Chief Justice Sereno during the JBC meeting held on June 5, 2014, where
she expressed her position that Jardeleza did not possess the integrity required tobe a member of the Court. 27 In
the same meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s chosen manner
of framing the government’s position in a case and how this could have been detrimental to the national interest.
In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity were couched
in general terms. The particulars thereof were only supplied to the Court in the JBC’s Supplemental Comment-
Reply. Apparently, the JBC acceded to Jardeleza’s demand to make the accusations against him public. At the
outset, the JBC declined to raise the fine points of the integrity question in its original Comment due to its
significant bearing on the country’s foreign relations and national security. At any rate, the Court restrains itself
from delving into the details thereof in this disposition. The confidential nature of the document cited therein, which
requires the observance of utmost prudence, preclude a discussion that may possibly affect the country’s position
in a pending dispute.
Be that as it may, the Court has to resolve the standing questions: Does the original invocation of Section 2, Rule
10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a specific legal strategy in the
handling of a case bring forth a relevant and logical challenge against his moral character? Does the "unanimity
rule" apply in cases where the main point of contention is the professional judgment sans charges or implications
of immoral or corrupt behavior?
The Court answers these questions in the negative.
While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not borne out ofa
mere variance of legal opinion but by an "act of disloyalty" committed by Jardeleza in the handling of a case, the
fact remains that the basis for her invocation of the rule was the "disagreement" in legal strategy as expressed by
a group of international lawyers. The approach taken by Jardeleza in that case was opposed to that preferred by
the legal team. For said reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule"
on integrity traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was
established linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or
to betray the Constitution.
Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the
legal community. A lawyer has complete discretion on whatlegal strategy to employ in a case entrusted to
him28 provided that he lives up tohis duty to serve his client with competence and diligence, and that he exert his
best efforts to protect the interests of his client within the bounds of the law. Consonantly, a lawyer is not an
insurer of victory for clients he represents. An infallible grasp of legal principles and technique by a lawyer is a
utopian ideal. Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal mind
remains a legal tactic acceptable to some and deplorable to others. It has no direct bearing on his moral choices.
As shown in the minutes, the other JBC members expressed their reservations on whether the ground invoked by
Chief Justice Sereno could be classified as a "question of integrity" under Section 2, Rule 10 of JBC-009. 29 These
reservations were evidently sourced from the factthat there was no clear indication that the tactic was a
"brainchild" of Jardeleza, as it might have been a collective idea by the legal team which initially sought a different
manner of presenting the country’s arguments, and there was no showing either of a corrupt purpose on his
part.30 Even Chief Justice Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by
extraneous promises.31 Besides, the President, who has the final say on the conduct of the country’s advocacy in
the case, has given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the country’s trust and
interest. While this point does notentail that only the President may challenge Jardeleza’s doubtful integrity, itis
commonsensical to assume that he is in the best position to suspect a treacherous agenda. The records are
bereft of any information that indicatesthis suspicion. In fact, the Comment of the Executive Secretary expressly
prayed for Jardeleza’s inclusion in the disputed shortlist.
The Court notes the zeal shown by the Chief Justice regarding international cases, given her participation in the
PIATCO case and the Belgian Dredging case. Her efforts inthe determination of Jardeleza’s professional
background, while commendable, have not produced a patent demonstration of a connection betweenthe act
complained of and his integrity as a person. Nonetheless, the Court cannot consider her invocation of Section 2,
Rule 10 of JBC-009 as conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of JBC-
009, there must be a showing that the act complained of is, at the least, linked to the moral character of the
person and not to his judgment as a professional. What this disposition perceives, therefore, is the inapplicability
of Section 2, Rule 10 of JBC-009 to the original ground of its invocation.
As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital affair and
acts of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC. As can be gleaned from
the minutes of the June 30, 2014 meeting, the inclusion of these issues had its origin from newspaper reports that
the Chief Justice might raise issues of "immorality" against Jardeleza. 32 The Chief Justice then deduced that the
"immorality" issue referred to by the media might have been the incidents that could have transpired when
Jardeleza was still the General Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the
duty to "take every possible step to verify the qualification of the applicants," it might as well be clarified. 33
Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-009? The Court
nods in assent. These are valid issues.
This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which centered
onJardeleza’s stance on the tactical approach in pursuing the case for the government, the claims of an illicit
relationship and acts of insider trading bear a candid relation to his moral character. Jurisprudence 34 is replete with
cases where a lawyer’s deliberate participation in extra-marital affairs was considered as a disgraceful stain on
one’s ethical and moral principles. The bottom line is that a lawyer who engages in extra-marital affairs is deemed
to have failed to adhere to the exacting standards of morality and decency which every member of the Judiciary is
expected to observe. In fact, even relationships which have never gone physical or intimate could still be subject
to charges of immorality, when a lawyer, who is married, admits to having a relationship which was more than
professional, more than acquaintanceship, more than friendly. 35 As the Court has held: Immorality has not been
confined to sexual matters, but includes conduct inconsistentwith 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 communityand an inconsiderate attitude toward good order and public
welfare.36 Moral character is not a subjective term but one that corresponds to objective reality. 37 To have a good
moral character, a person must have the personal characteristic ofbeing good. It is not enough that he or she has
a good reputation, that is, the opinion generally entertained about a person or the estimate in which he or she is
held by the public in the place where she is known. 38 Hence, lawyers are at all times subject to the watchful public
eye and community approbation.39
The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values, self-control
and on the whole, sense of honor, not only because it is a bold disregard of the sanctity of marriage and of the
law, but because it erodes the public’s confidence in the Judiciary. This is no longer a matter of an honest lapse in
judgment but a dissolute exhibition of disrespect toward sacredvows taken before God and the law.
On the other hand, insider trading is an offense that assaults the integrity of our vital securities
market.40 Manipulative devices and deceptive practices, including insider trading, throw a monkey wrench right
into the heart of the securities industry. Whensomeone trades inthe market with unfair advantage in the form of
highly valuable secret inside information, all other participants are defrauded. All of the mechanisms become
worthless. Given enough of stock marketscandals coupled with the related loss of faith in the market, such abuses
could presage a severe drain of capital. And investors would eventuallyfeel more secure with their money invested
elsewhere.41 In its barest essence, insider trading involves the trading of securities based on knowledge of
material information not disclosed to the public at the time. Clearly, an allegation of insider trading involves the
propensity of a person toengage in fraudulent activities that may speak of his moral character.
These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of JBC-009.
They fall within the ambit of "questions on integrity." Hence, the "unanimity rule" may come into operation as the
subject provision is worded.
The Availability of Due Process in the
Proceedings of the JBC
In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the accusations against
him in writing; 2] he was not furnished the basis of the accusations, that is, "a very confidential legal memorandum
that clarifies the integrityobjection"; 3] instead of heeding his request for an opportunity to defend himself, the JBC
considered his refusal to explain, during the June 30, 2014 meeting, as a waiver of his right to answer the
unspecified allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of
Sections 3 and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides
for a 10-day period from the publication of the list of candidates within which any complaint or opposition against a
candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and oppositions to be
in writing and under oath, copies of which shall be furnished the candidate in order for him to file his comment
within five (5) days from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and
sequential series of steps in securing a candidate’s right to due process.
The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in the fulfillment
of its duty to recommend. The JBC, as a body, is not required by law to hold hearings on the qualifications of the
nominees. The process by which an objection is made based on Section 2, Rule 10 of JBC-009 is not judicial,
quasi-judicial, or fact-finding, for it does not aim to determine guilt or innocence akin to a criminal or administrative
offense but toascertain the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the
proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the application of
rules of procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light on the
objections against him. During the June 30, 2014 meeting, he did not address the issues, but instead chose
totread on his view that the Chief Justice had unjustifiably become his accuser, prosecutor and judge.
The crux of the issue is on the availability of the right to due process in JBC proceedings. After a tedious review of
the parties’ respective arguments, the Court concludes that the right to due process is available and thereby
demandable asa matter of right.
The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are distinct from
criminal proceedings where the finding of guilt or innocence of the accused is sine qua non. The JBC’s
constitutional duty to recommend qualified nominees to the President cannot be compared to the duty of the
courts of law to determine the commission of an offense and ascribe the same to an accused, consistent with
established rules on evidence. Even the quantum ofevidence required in criminal cases is far from the discretion
accorded to the JBC.
The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s access tothe rights
afforded under the due process clause is discretionary on the part of the JBC. While the facets of criminal 42 and
administrative43 due process are not strictly applicable to JBC proceedings, their peculiarity is insufficient to justify
the conclusion that due process is not demandable.
In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he presents proof of
his scholastic records, work experience and laudable citations. His goal is to establish that he is qualified for the
office applied for. The JBC then takes every possible step to verify an applicant's trackrecord for the purpose
ofdetermining whether or not he is qualified for nomination. It ascertains the factors which entitle an applicant to
become a part of the roster from which the President appoints.
The fact that a proceeding is sui generisand is impressed with discretion, however, does not automatically
denigrate an applicant’s entitlement to due process. It is well-established in jurisprudence that disciplinary
proceedings against lawyers are sui generisin that they are neither purely civil nor purely criminal; they involve
investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit. 44 Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to accountfor his actuations
as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and
honest administration of justice by purging the profession of members who, by their misconduct, have proved
themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an
attorney. In such posture, there can be no occasion to speak of a complainant or a prosecutor. 45 On the whole,
disciplinary proceedings are actually aimed to verifyand finally determine, if a lawyer charged is still qualifiedto
benefit from the rights and privileges that membership in the legal profession evoke.
Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing. The Court
subscribes to the view that in cases where an objection to an applicant’s qualifications is raised, the observance of
due process neither negates nor renders illusory the fulfillment of the duty of JBC torecommend. This holding is
not an encroachment on its discretion in the nomination process. Actually, its adherence to the precepts of due
process supports and enriches the exercise of its discretion. When an applicant, who vehemently denies the truth
of the objections, is afforded the chance to protest, the JBC is presented with a clearer understanding of the
situation it faces, thereby guarding the body from making an unsound and capriciousassessment of information
brought before it. The JBC is not expected to strictly apply the rules of evidence in its assessment of an objection
against an applicant. Just the same, to hear the side of the person challenged complies with the dictates of
fairness for the only test that an exercise of discretion must surmount is that of soundness.
A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to examine its
current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010. The former provides the
following provisions pertinent to this case:
SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the applicant's record of
and reputation for honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical
standards. For this purpose, the applicant shall submit to the Council certifications or testimonials thereof from
reputable government officials and non-governmental organizations, and clearances from the courts, National
Bureau of Investigation, police, and from such other agencies as the Council may require.
SECTION 2. Background check. - The Council mayorder a discreet background check on the integrity, reputation
and character of the applicant, and receive feedback thereon from the public, which it shall check or verify to
validate the merits thereof.
SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on groundof his
moral fitness and, at its discretion, the Council mayreceive the testimony of the oppositor at a hearing conducted
for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer
countervailing evidence.
SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not begiven due course,
unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In
the latter case, the Council may either direct a discreet investigation or require the applicant to comment thereon
in writing or during the interview. [Emphases Supplied]
While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to hold that the
subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further Promote Public Awareness
of and Accessibility to the Proceedings of the Judicial and Bar Council," JBC-010 recognizes the needfor
transparency and public awareness of JBC proceedings. In pursuance thereof, JBC-010 was crafted in this wise:
SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet prima facie
the qualifications for the positionunder consideration. For this purpose, it shall prepare a long list of candidates
who prima facieappear to have all the qualifications.
The Secretary of the Council shall then cause to be published in two (2) newspapers of general circulation a
notice of the long list of candidates in alphabetical order.
The notice shall inform the public that any complaint or opposition against a candidate may be filed with the
Secretary within ten (10) days thereof.
SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies, together with
its supporting annexes. It shall strictly relate to the qualifications of the candidate or lack thereof, as provided for in
the Constitution, statutes, and the Rules of the Judicial and Bar Council, as well as resolutions or regulations
promulgated by it.
The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against him. The
candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or
opposition, if he so desires.
SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to consider the
qualification of the long list of candidates and the complaint or opposition against them, if any. The Council may,
on its own, conduct a discreet investigation of the background of the candidates.
On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the shorter list of
candidates whom it desires to interview for its further consideration.
SECTION 4.The Secretary of the Council shall again cause to be published the dates of the interview of
candidates in the shorter list in two (2) newspapers of general circulation. It shall likewise be posted in the
websites of the Supreme Court and the Judicial and Bar Council.
The candidates, as well as their oppositors, shall be separately notified of the dateand place of the interview.
SECTION 5.The interviews shall be conducted in public. During the interview, only the members ofthe Council can
ask questions to the candidate. Among other things, the candidate can be made to explain the complaint or
opposition against him.
SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session for the final
deliberation on the short list of candidates which shall be sent to the Office of the President as a basis for the
exercise of the Presidential power of appointment. [Emphases supplied]
Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of JBC-009 are
merely directory in nature as can be gleaned from the use of the word "may." Thus, the conduct of a hearing
under Rule 4 of JBC-009 is permissive and/or discretionary on the part of the JBC. Even the conduct of a hearing
to determine the veracity of an opposition is discretionary for there are ways, besides a hearing, to ascertain the
truth or falsity of allegations. Succinctly, this argument suggests that the JBC has the discretion to hold or not to
hold a hearing when an objection to an applicant’s integrity is raised and that it may resort to other means to
accomplish its objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion,
receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that shall be
allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC of its discretion to
recommend nominees nor proposes thatthe JBC conduct a full-blown trial when objections to an application are
submitted. Still, it is unsound to say that, all together, the observance of due process is a part of JBC’s discretion
when an opposition to an application is made of record. While it may so rely on "other means" such as character
clearances, testimonials, and discreet investigation to aid it in forming a judgment of an applicant’s qualifications,
the Court cannot accept a situation where JBC is given a full rein on the application of a fundamental right
whenever a person’s integrity is put to question. In such cases, an attack on the person of the applicant
necessitates his right to explain himself.
The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of JBC-010
unmistakably projects the JBC’s deference to the grave import of the right of the applicant to be informed and
corollary thereto, the right to be heard. The provisions of JBC-010, per se, provide that: any complaint or
opposition against a candidate may be filed with the Secretary within ten (10) days thereof; the complaint or
opposition shall be in writing, under oath and in ten (10) legible copies; the Secretary of the Council shall furnish
the candidate a copy of the complaint or opposition against him; the candidate shall have five (5) days from
receipt thereof within which to file his comment to the complaint or opposition, if he so desires; and the candidate
can be made to explain the complaint or opposition against him.
The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory
construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the mandatory
term, "shall"; and 3] most importantly, it speaks of the very essence of due process. While JBC-010 does not
articulate a procedure that entails a trialtype hearing, it affords an applicant, who faces "any complaint or
opposition," the right to answer the accusations against him. This constitutes the minimum requirements of due
process.
Application to Jardeleza’s Case
Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza was deprived of
his right to due process in the events leading up to, and during, the vote on the shortlist last June 30, 2014.
The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to answer the
allegations against him. It underscores the fact that Jardeleza was asked to attend the June 30, 2014 meeting so
that he could shed light on the issues thrown at him. During the said meeting, Chief Justice Sereno informed him
that in connection with his candidacy for the position of Associate Justice of the Supreme Court, the Council would
like to propound questions on the following issues raised against him: 1] his actuations in handling an international
arbitration case not compatible with public interest; 48 2] reports on his extra-marital affair in SMC; and 3] alleged
insider trading which led to the "show cause" order from the Philippine Stock Exchange. 49
As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to be "lulled into
waiving his rights." Instead, he manifested that his statement be put on record and informed the Council of the
then pendency of his letter-petition with the Court en banc. When Chief Justice Sereno informed Jardeleza that
the Council would want to hear from him on the three (3) issues against him,Jardeleza reasoned out that this was
precisely the issue. He found it irregular that he was not being given the opportunity to be heard per the JBC
rules.He asserted that a candidate must be given the opportunity to respond to the charges against him. He urged
the Chief Justice to step down from her pedestal and translate the objections in writing. Towards the end of the
meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be made part of the
record. After Jardeleza was excused from the conference, Justice Lagman suggested that the voting be deferred,
but the Chief Justice ruled that the Council had already completed the process required for the voting to proceed.
After careful calibration of the case, the Court has reached the determination that the application of the "unanimity
rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.
As threshed out beforehand, due process, as a constitutional precept, does not always and in all situations require
a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an
opportunity to explain or defend himself.50 Even as Jardeleza was verbally informed of the invocation of Section 2,
Rule 10 of JBC-009 against him and was later asked to explain himself during the meeting, these circumstances
still cannot expunge an immense perplexity that lingers in the mind of the Court. What is to become of the
procedure laid down in JBC-010 if the same would be treated with indifference and disregard? To repeat, as its
wording provides, any complaint or opposition against a candidate may be filed with the Secretary withinten (10)
days from the publication of the notice and a list of candidates. Surely, this notice is all the more conspicuous to
JBC members. Granting ex argumenti, that the 10-day period 51 is only applicable to the public, excluding the JBC
members themselves, this does not discount the fact that the invocation of the first ground in the June 5, 2014
meeting would have raised procedural issues. To be fair, several members of the Council expressed their concern
and desire to hear out Jardeleza but the application of JBC-010 did not form part of the agenda then. It was only
during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting
that would be held on the same day when a resource person would shed light on the matter.
Assuming again that the classified nature of the ground impelled the Council to resort to oral notice instead of
furnishing Jardeleza a written opposition, why did the JBC not take into account its authority to summon Jardeleza
in confidence at an earlier time? Is not the Council empowered to "take every possible step to verify the
qualification of the applicants?" It would not be amiss to state, at this point, that the confidential legal
memorandum used in the invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as
Solicitor General. Safe to assume is his knowledge of the privileged nature thereof and the consequences of its
indiscriminate release to the public. Had he been privately informed of the allegations against him based on the
document and had he been ordered to respond thereto in the same manner, Jardeleza’s right to be informed and
to explain himself would have been satisfied.
What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza to appear
before the Council and to instantaneously provide those who are willing to listen an intelligent defense. Was he
given the opportunity to do so? The answer is yes, in the context of his physical presence during the meeting.
Was he given a reasonable chance to muster a defense? No, because he was merely asked to appear in a
meeting where he would be, right then and there, subjected to an inquiry. It would all be too well to remember that
the allegations of his extra-marital affair and acts of insider trading sprung up only during the June 30, 2014
meeting. While the said issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not
given the idea that he should prepare to affirm or deny his past behavior. These circumstances preclude the very
idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but toprovide the
person a reasonable opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion
becomes anidle and futile exercise.
Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be informed of
the charges against him and his right to answer the same with vigorouscontention and active participation in the
proceedings which would ultimately decide his aspiration to become a magistrate of this Court.
Consequences
To write finisto this controversy and in view of the realistic and practical fruition of the Court’s findings, the Court
now declares its position on whether or not Jardeleza may be included in the shortlist, just in time when the period
to appoint a member of the Court is about to end.
The conclusion of the Court is hinged on the following pivotal points:
1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as to
Jardeleza’s legal strategy in handling a case for the government.
2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the contemplation
of a "question on integrity" and would have warranted the application of the "unanimity rule," he was
notafforded due process in its application.
3. The JBC, as the sole body empowered to evaluate applications for judicial posts, exercises full
discretion on its power to recommend nomineesto the President. The sui generischaracter of JBC
proceedings, however, is not a blanket authority to disregard the due process under JBC-010.
4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he was neither
formally informed of the questions on his integrity nor was provided a reasonable opportunity to prepare
his defense.
With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the shortlist
submitted to the President for the vacated position of Associate Justice Abad. This consequence arose not from
the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but from the violation by the JBC of its own rules
of procedure and the basic tenets of due process. By no means does the Court intend to strike down the
"unanimity rule" as it reflects the JBC’s policy and, therefore, wisdom in its selection of nominees. Even so, the
Court refuses to turn a blind eye on the palpable defects in its implementation and the ensuing treatment that
Jardeleza received before the Council. True, Jardeleza has no vested right to a nomination, but this does not
prescind from the fact that the JBC failed to observe the minimum requirements of due process.
In criminal and administrative cases, the violation of a party’s right to due process raises a serious jurisdictional
issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. 52 This rule may
well be applied to the current situation for an opposing view submits to an undue relaxation of the Bill of Rights. To
this, the Court shall not concede. Asthe branch of government tasked to guarantee that the protection of due
process is available to an individual in proper cases, the Court finds the subject shortlist as tainted with a vice that
it is assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed to have
never come into operation in light of its erroneous application on the original ground against Jardeleza’s integrity.
At the risk of being repetitive, the Court upholds the JBC’s discretion in the selection of nominees, but its
application of the "unanimity rule" must be applied in conjunction with Section 2, Rule 10 of JBC-010 being
invoked by Jardeleza. Having been able to secure four (4) out of six (6) votes, the only conclusion left to propound
is that a majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for the position of
Associate Justice and this grants him a rightful spot in the shortlist submitted to the President. Need to Revisit
JBC’s
Internal Rules
In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of the view that
the rules leave much to be desired and should be reviewed and revised. It appears that the provision on the
"unanimity rule" is vagueand unfair and, therefore, can be misused or abused resulting in the deprivation of an
applicant’s right to due process.
Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the collective will of a
majority. This should be clarified. Any assertion by a member aftervoting seems to be unfair because it effectively
gives him or her a veto power over the collective votes of the other members in view of the unanimous
requirement. While an oppositor-member can recuse himself orherself, still the probability of annulling the majority
vote ofthe Council is quite high.
Second, integrity as a ground has not been defined. While the initial impression is that it refers to the moral fiber of
a candidate, it can be, as it has been, used to mean other things. Infact, the minutes of the JBC meetings n this
case reflect the lack of consensus among the members as to its precise definition. Not having been defined or
described, it is vague, nebulous and confusing. It must be distinctly specified and delineated.
Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be invoked only by
an outsider as construed by the respondent Executive Secretary or also by a member?
Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they must meet the
minimum requirements of due process. As always, an applicant should be given a reasonable opportunity and
time to be heard on the charges against him or her, if there are any.
At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It need not be
stressed that the rules to be adopted should be fair, reasonable, unambiguous and consistent with the minimum
requirements of due process.
One final note.
The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment as a member
of the Court.1âwphi1 In deference to the Constitution and his wisdom in the exercise of his appointing power, the
President remains the ultimate judge of a candidate's worthiness.
WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General Francis I-I.
Jardeleza is deemed INCLUDED in the shortlist submitted to the President for consideration as an Associate
Justice of the Supreme Court vice Associate Justice Roberto A. Abad.
The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant to the
observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to the approval of the
Court.
This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this Decision.
SO ORDERED.
Case no. 11:
G.R. No. 202242               April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS,
JR., Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on behalf of the
respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents), duly
opposed2 by the petitioner, former Solicitor General Francisco I. Chavez (petitioner).
By way of recapitulation, the present action stemmed from the unexpected departure of former Chief Justice
Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential successor. In his initiatory
pleading, petitioner asked the Court to determine 1] whether the first paragraph of Section 8, Article VIII of the
1987 Constitution allows more than one (1) member of Congress to sit in the JBC; and 2] if the practice of having
two (2) representatives from each House of Congress with one (1) vote each is sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the following
manner:
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council is
declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only
one (1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article
VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate Resolution
Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on August 2, 2012. 7 On
August 3, 2012, the Court discussed the merits of the arguments and agreed, in the meantime, to suspend the
effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision which decreed that it was
immediately executory. The decretal portion of the August 3, 2012 Resolution 8 reads:
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten (10) days from
notice. Until further orders, the Court hereby SUSPENDS the effect of the second paragraph of the dispositive
portion of the Court’s July 17, 2012 Decision, which reads: "This disposition is immediately executory." 9
Pursuant to the same resolution, petitioner and respondents filed their respective memoranda. 10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of appointing
members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of
the government. Like their progenitor of American origins, both the Malolos Constitution 11 and the 1935
Constitution12 vested the power to appoint the members of the Judiciary in the President, subject to confirmation
by the Commission on Appointments. It was during these times that the country became witness to the deplorable
practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the
members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one body, the
appointment of judges and justices ceased to be subject of scrutiny by another body. The power became
exclusive and absolute to the Executive, subject only to the condition that the appointees must have all the
qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and
partisan activities,15 the members of the Constitutional Commission saw it wise to create a separate, competent
and independent body to recommend nominees to the President.
Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called
it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8, Article VIII of the 1987 Constitution
in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed
of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme
Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to sit in the JBC to act
as one of the ex-officio members.16 Pursuant to the constitutional provision that Congress is entitled to one (1)
representative, each House sent a representative to the JBC, not together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially altered. 1âwphi1 An eighth member was
added to the JBC as the two (2) representatives from Congress began sitting simultaneously in the JBC, with
each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the petition on
the following grounds: 1] that allowing only one representative from Congress in the JBC would lead to absurdity
considering its bicameral nature; 2] that the failure of the Framers to make the proper adjustment when there was
a shift from unilateralism to bicameralism was a plain oversight; 3] that two representatives from Congress would
not subvert the intention of the Framers to insulate the JBC from political partisanship; and 4] that the rationale of
the Court in declaring a seven-member composition would provide a solution should there be a stalemate is not
exactly correct.
While the Court may find some sense in the reasoning in amplification of the third and fourth grounds listed by
respondents, still, it finds itself unable to reverse the assailed decision on the principal issues covered by the first
and second grounds for lack of merit. Significantly, the conclusion arrived at, with respect to the first and second
grounds, carries greater bearing in the final resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental powers of government
are established, limited and defined and by which those powers are distributed among the several departments for
their safe and useful exercise for the benefit of the body politic. 19 The Framers reposed their wisdom and vision on
one suprema lex to be the ultimate expression of the principles and the framework upon which government and
society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the
basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to
have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance.
What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the
branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to justify constitutional
construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter "a" to describe
"representative of Congress," the Filipino people through the Framers intended that Congress be entitled to only
one (1) seat in the JBC. Had the intention been otherwise, the Constitution could have, in no uncertain terms, so
provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to be in tune with
the shift to bicameralism. One example is Section 4, Article VII, which provides that a tie in the presidential
election shall be broken "by a majority of all the Members of both Houses of the Congress, voting
separately."20 Another is Section 8 thereof which requires the nominee to replace the Vice-President to be
confirmed "by a majority of all the Members of both Houses of the Congress, voting separately." 21 Similarly, under
Section 18, the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may be
revoked or continued by the Congress, voting separately, by a vote of at least a majority of all its Members." 22 In
all these provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to their decision
to shift to a bicameral form of the legislature, is not persuasive enough. Respondents cannot just lean on plain
oversight to justify a conclusion favorable to them. It is very clear that the Framers were not keen on adjusting the
provision on congressional representation in the JBC because it was not in the exercise of its primary function – to
legislate. JBC was created to support the executive power to appoint, and Congress, as one whole body, was
merely assigned a contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has two (2) Houses. The
need to recognize the existence and the role of each House is essential considering that the Constitution employs
precise language in laying down the functions which particular House plays, regardless of whether the two
Houses consummate an official act by voting jointly or separately. Whether in the exercise of its legislative23 or its
non-legislative functions such as inter alia, the power of appropriation, 24 the declaration of an existence of a state
of war,25 canvassing of electoral returns for the President and Vice-President, 26 and impeachment,27 the dichotomy
of each House must be acknowledged and recognized considering the interplay between these two Houses. In all
these instances, each House is constitutionally granted with powers and functions peculiar to its nature and with
keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks
and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their participation in the JBC.
No mechanism is required between the Senate and the House of Representatives in the screening and
nomination of judicial officers. Rather, in the creation of the JBC, the Framers arrived at a unique system by
adding to the four (4) regular members, three (3) representatives from the major branches of government - the
Chief Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice (representing
the Executive Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature, not because it
was in the interest of a certain constituency, but in reverence to it as a major branch of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of Maguindanao,
submitted his well-considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one representative of Congress in the JBC in accordance
with Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need any further interpretation. Perhaps, it is apt
to mention that the oft-repeated doctrine that "construction and interpretation come only after it has been
demonstrated that application is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each, is to negate the
principle of equality among the three branches of government which is enshrined in the Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single representation of
Congress in the JBC in order to respect and give the right meaning to the above-quoted provision of the
Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant, submitted to the
Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is intended to curtail
the influence of politics in Congress in the appointment of judges, and the understanding is that seven (7) persons
will compose the JBC. As such, the interpretation of two votes for Congress runs counter to the intendment of the
framers. Such interpretation actually gives Congress more influence in the appointment of judges. Also, two votes
for Congress would increase the number of JBC members to eight, which could lead to voting deadlock by reason
of even-numbered membership, and a clear violation of 7 enumerated members in the Constitution. (Emphases
and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven (7) representatives
coming from different sectors. From the enumeration it is patent that each category of members pertained to a
single individual only. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is
beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit and specific that "Congress" shall
have only "xxx a representative." Thus, two (2) representatives from Congress would increase the number of JBC
members to eight (8), a number beyond what the Constitution has contemplated. (Emphases and underscoring
supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a former JBC
consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the
Commission’s desire "to have in the Council a representation for the major elements of the community." xxx The
ex-officio members of the Council consist of representatives from the three main branches of government while
the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article
VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx
Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in
the choice of judicial nominees.
xxx
No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of
its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in
relation to the executive and judicial branches of government, is constitutionally treated as another co-equal
branch in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent
powers requires the Senate and the House of Representatives to coordinate and act as distinct bodies in
furtherance of Congress’ role under our constitutional scheme. While the latter justifies and, in fact, necessitates
the separateness of the two Houses of Congress as they relate inter se, no such dichotomy need be made when
Congress interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to
considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The
representatives of the Senate and the House of Representatives act as such for one branch and should not have
any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the
three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and
underscoring supplied]
The argument that a senator cannot represent a member of the House of Representatives in the JBC and vice-
versa is, thus, misplaced. In the JBC, any member of Congress, whether from the Senate or the House of
Representatives, is constitutionally empowered to represent the entire Congress. It may be a constricted
constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to one full vote. This
pronouncement effectively disallows the scheme of splitting the said vote into half (1/2), between two
representatives of Congress. Not only can this unsanctioned practice cause disorder in the voting process, it is
clearly against the essence of what the Constitution authorized. After all, basic and reasonable is the rule that
what cannot be legally done directly cannot be done indirectly. To permit or tolerate the splitting of one vote into
two or more is clearly a constitutional circumvention that cannot be countenanced by the Court. Succinctly put,
when the Constitution envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence over the JBC simply
because all of the regular members of the JBC are his appointees. The principle of checks and balances is still
safeguarded because the appointment of all the regular members of the JBC is subject to a stringent process of
confirmation by the Commission on Appointments, which is composed of members of Congress.
Respondents’ contention that the current irregular composition of the JBC should be accepted, simply because it
was only questioned for the first time through the present action, deserves scant consideration. Well-settled is the
rule that acts done in violation of the Constitution no matter how frequent, usual or notorious cannot develop or
gain acceptance under the doctrine of estoppel or laches, because once an act is considered as an infringement
of the Constitution it is void from the very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a law; it confers
no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been
passed at all. This rule, however, is not absolute. Under the doctrine of operative facts, actions previous to the
declaration of unconstitutionality are legally recognized. They are not nullified. This is essential in the interest of
fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation: 32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play.
It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a
determination of unconstitutionality is an operative fact and may have consequences which cannot always be
ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a
declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it
was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy
or would put in limbo the acts done by a municipality in reliance upon a law creating it. 33
Under the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its
finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless
valid.
Considering that the Court is duty bound to protect the Constitution which was ratified by the direct action of the
Filipino people, it cannot correct what respondents perceive as a mistake in its mandate. Neither can the Court, in
the exercise of its power to interpret the spirit of the Constitution, read into the law something that is contrary to its
express provisions and justify the same as correcting a perceived inadvertence. To do so would otherwise
sanction the Court action of making amendment to the Constitution through a judicial pronouncement.
In other words, the Court cannot supply the legislative omission. According to the rule of casus omissus "a case
omitted is to be held as intentionally omitted."34 "The principle proceeds from a reasonable certainty that a
particular person, object or thing has been omitted from a legislative enumeration." 35 Pursuant to this, "the Court
cannot under its power of interpretation supply the omission even though the omission may have resulted from
inadvertence or because the case in question was not foreseen or contemplated." 36 "The Court cannot supply
what it thinks the legislature would have supplied had its attention been called to the omission, as that would be
judicial legislation."37
Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution against
usurpation. The Court remains steadfast in confining its powers in the sphere granted by the Constitution itself.
Judicial activism should never be allowed to become judicial exuberance. 38 In cases like this, no amount of
practical logic or convenience can convince the Court to perform either an excision or an insertion that will change
the manifest intent of the Framers. To broaden the scope of congressional representation in the JBC is
tantamount to the inclusion of a subject matter which was not included in the provision as enacted. True to its
constitutional mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all of
situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of this intrusion,
the Court declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision of
the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.
SO ORDERED.
Case no. 12:
G.R. No. 228628
REP. REYNALDO V. UMALI, in his capacity as Chairman of the House of Representatives Committee on Justice
and Ex Officio Member of the JBC, Petitioner
vs.
THE JUDICIAL AND BAR COUNCIL, chaired by THE HON. MARIA LOURDES P.A. SERENO, Chief Justice and
Ex Officio Chairperson, Respondent
DECISION
VELASCO, JR., J.:
Stare decisis et non quieta movere.  This principle of adherence to precedents has not lost its luster and continues
to guide the bench in keeping with the need to maintain stability in the law. 1
This Petition for Certiorari  and Mandamus under Rule 65 of the Rules of Court filed directly with this Court by
herein petitioner Rep. Reynaldo V. Umali, current Chair of the House of Representatives Committee on Justice,
impugns the present-day practice of six-month rotational representation of Congress in the Judicial and Bar
Council (JBC) for it unfairly deprives both Houses of Congress of their full participation in the said body. The
aforementioned practice was adopted by the JBC in light of the ruling in Chavez v. Judicial and Bar Council.2
As an overview, in Chavez,  the constitutionality of the practice of having two representatives from both houses of
Congress with one vote each in the JBC, thus, increasing its membership from seven to eight, was challenged.
With that, this Court examined the constitutional provision that states the composition of the JBC, that is, Section
8(1), Article VIII of the 1987 Constitution, which reads:
SECTION 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio  Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio  Members, a representative of the Integrated Bar, a professor of law, a retired Member of
the Supreme Court, and a representative of the private sector. (Emphasis supplied.)
Following a painstaking analysis, this Court, in a Decision dated July 17, 2012, declared the said practice of
having two representatives from Congress with one vote each in the JBC unconstitutional. This Court enunciated
that the use of the singular letter "a"  preceding "representative of the Congress"  in the aforequoted provision is
unequivocal and leaves no room for any other construction or interpretation. The same is indicative of the
Framers' intent that Congress may designate only one representative to the JBC. Had it been otherwise, they
could have, in no uncertain terms, so provided. This Court further articulated that in the context of JBC
representation, the term "Congress" must be taken to mean the entire legislative department as no liaison
between the two houses exists in the workings of the JBC. There is no mechanism required between the Senate
and the House of Representatives in the screening and nomination of judicial officers. Moreover, this Court,
quoting the keen observation of Retired Supreme Court Associate Justice Consuelo Ynares-Santiago, who is also
a JBC Consultant, stated that the ex officio  members of the JBC consist of representatives from the three main
branches of government, to wit: the Chief Justice of the Supreme Court representing the judiciary, the Secretary
of Justice representing the executive, and a representative of the Congress representing the legislature. It can be
deduced therefrom that the unmistakable tenor of Section 8(1), Article VIII of the 1987 Constitution was to treat
each ex officio  member as representing one co-equal branch of government having equal say in the choice of
judicial nominees. Now, to allow the legislature to have more than one representative in the JBC would negate the
principle of equality among these three branches of the government, which is enshrined in the Constitution. 3
The subsequent motion for reconsideration thereof was denied in a Resolution dated April 16, 2013, where this
Court reiterated that Section 8(1), Article VIII of the 1987 Constitution providing for "a representative of the
Congress"  in the JBC is clear and unambiguous and does not need any further interpretation. Besides, this Court
is not convinced that the Framers simply failed to adjust the aforesaid constitutional provision, by sheer
inadvertence, to their decision to shift to a bicameral form of legislature. Even granting that there was, indeed,
such omission, this Court cannot supply the same. Following the rule of casus omissus,  that is, a case omitted is
to be held as intentionally omitted, this Court cannot under its power of interpretation supply the omission even if
the same may have resulted from inadvertence or it was not foreseen or contemplated for to do so would amount
to judicial legislation. Ergo, this Court has neither power nor authority to add another member in the JBC simply by
judicial construction.4
In light of these Decision and Resolution, both Houses of Congress agreed on a six-month rotational
representation in the JBC, wherein the House of Representatives will represent Congress from January to June
and the Senate from July to December.5This is now the current practice in the JBC. It is by reason of this
arrangement that the votes cast by the petitioner for the selection of nominees for the vacancies of then retiring
Supreme Court Associate Justices Jose P. Perez (Perez) and Arturo Brion (Brion) were not counted by the JBC
during its En Banc  deliberations held last December 2 and 9, 2016. Instead, the petitioner's votes were simply
placed in an envelope and sealed subject to any further disposition as this Court may direct in a proper
proceeding.6 This is the root of the present controversy that prompted the petitioner to file the instant Petition
for Certiorari  and Mandamus based on the following grounds:
I.
THE WRIT OF CERTIORARI  IS PROPER TO ENJOIN THE JBC TO CORRECT ITS UNWARRANTED DENIAL
OF THE VOTES REGISTERED BY [HEREIN PETITIONER] DURING THE EN BANC DELIBERATIONS ON
DECEMBER 2 AND 9, 2016 BECAUSE THE DECISION IN THE CHAVEZ  CASE IS DEFECTIVE/FLA WED.
II.
THE WRIT OF MANDAMUS IS PROPER TO MANDATE THE JBC TO ACCEPT/COUNT SAID VOTES CAST BY
[PETITIONER] BECAUSE THE RECONSTITUTION OF THE JBC IS DEFECTIVE/FLA WED AND
UNCONSTITUTIONAL.
III.
THE PRESENT PRACTICE OF THE JBC IN ALLOWING ONLY ONE REPRESENTATIVE FROM THE SENATE
OR THE HOUSE OF [REPRESENTATIVES] TO PARTICIPATE AND VOTE ON A [6- MONTH] ROTATION
BASIS IS IMPRACTICABLE, ABSURD AND UNCONSTITUTIONAL, CREATES AN [INSTITUTIONAL]
IMBALANCE BETWEEN THE TWO INDEPENDENT CHAMBERS OF CONGRESS, AND INSTITUTES AN
INHERENT AND CONTINUING CONSTITUTIONAL DEFECT IN THE PROCEEDINGS OF THE JBC THAT
ADVERSELY AFFECTS APPOINTMENTS TO THE JUDICIAL DEPARTMENT, INCLUDING AND
PARTICULARLY [THIS COURT].
IV.
THE 1987 CONSTITUTION CLEARLY REQUIRES PARTICIPATION AND VOTING BY REPRESENTATIVES
FROM THE SENATE AND THE HOUSE OF REPRESENTATIVES IN JBC PROCEEDINGS AND ALL
APPOINTMENTS TO THE JUDICIAL DEPARTMENT, INCLUDING AND PARTICULARLY [TIDS COURT].
A. THE BICAMERAL NATURE OF THE LEGISLATIVE DEPARTMENT WAS BELATEDLY DECIDED UNDER
THE 1987 CONSTITUTION, BUT MUST BE DEEMED AS INCORPORATED AND MODIFYING THE JBC
STRUCTURE UNDER SECTION 8(1)[,] ARTICLE VIII OF THE [1987] CONSTITUTION, TO GIVE FULL
MEANING TO THE INTENT OF ITS FRAMERS.
B. THERE WAS A CLEAR OVERSIGHT AND TECHNICAL OMISSION INVOLVING SECTIONS 8(1)[,] ARTICLE
VIII OF THE [1987] CONSTITUTION THAT SHOULD BE RECTIFIED BY [TIDS COURT].
C. THE FULL REPRESENTATION OF CONGRESS IN THE JBC IS POSSIBLE ONLY WITH PARTICIPATING
AND VOTING FROM REPRESENTATIVES FROM THE TWO INDEPENDENT CHAMBERS, OTHERWISE THE
JBC PROCEEDINGS ARE UNCONSTITUTIONAL.
D. THE PRESENCE OF THE SENATE AND [THE] HOUSE OF REPRESENTATIVES MEMBERS IN THE JBC
UPHOLDS THE CO-EQUAL REPRESENTATION IN THE COUNCIL OF THE THREE MAIN BRANCHES OF
GOVERNMENT.7
As instructed by this Court,8 both Houses of Congress, through the Manifestation of the Office of the Solicitor
General (OSG), which acts as the People's Tribune in this case, and the JBC commented on the Petition.
The OSG wants this Court to revisit Chavez  for its alleged unexecutability arising from constitutional constraints. It
holds that the current practice of alternate representation was only arrived at because of time constraints and
difficulty in securing the agreement of both Houses of Congress. 9 And, since the Constitution itself did not clearly
state who is the Congress' representative in the JBC, the provision, therefore, regarding the latter's composition
must be harmonized to give effect to the current bicameral system. 10 With this in view, the OSG believes that it is
only proper for both Houses of Congress to be given equal representation in the JBC as neither House can bind
the other for there can be no single member of either House who can fully represent the entire legislature for to do
so would definitely result in absurdity.11
Further, the OSG avers that Chavez's  strict interpretation of Section 8(1), Article VIII of the 1987 Constitution
violates the very essence of bicameralism and sets aside the inherent dichotomy between the two Houses of
Congress.12 To note, a JBC member's votes are reflective of the position and the interest such member wants to
uphold, such that when the representatives from each House of Congress vote for a certain judicial nominee, they
carry the interests and views of the group they represent. Thus, when only one would represent both Houses of
Congress in the JBC, the vote would not be representative of the interests embodied by the Congress as a
whole.13
In the same way, the OSG contends that the bicameral nature of the legislature strictly adheres to the distinct and
separate personality of both Houses of Congress; thus, no member of Congress can represent the entire
Congress. Besides, the phrase "a representative of the Congress"  in Section 8(1), Article VIII of the 1987
Constitution is qualified by the phrase "ex officio members."  The ex officio  nature of the position derives its
authority from the principal office. It, thus, follows that each house of Congress must be represented in the JBC. 14
Also, the OSG states that the constitutional intent in creating the JBC is to ensure community representation from
the different sectors of society, as well as from the three branches of government, and to eliminate partisan
politics in the selection of members of the judiciary. The focus, therefore, is more on proper representation rather
than qualitative limitation. It even insists that when the Framers deliberated on Section 8(1 ), Article VIII of the
1987 Constitution, they were still thinking of a unicameral legislature, thereby, giving Congress only one
representative to the JBC. However, with the shift from unicameralism to bicameralism, "a representative of the
Congress"  in the JBC should now be understood to mean one representative from each House of Congress. For
had it been the intention of the Framers for the JBC to be composed only of seven members, they would have
specified the numbers just like in the other constitutional provisions. As such, the membership in the JBC should
not be limited to seven members. More so, an eventual deadlock in the voting would not pose any problem since
the voting in the JBC is not through a "yes" or a "no" vote. 15
As its final argument, the OSG maintains that while Congress' participation in the JBC may be non-legislative, still,
the involvement of both Houses of Congress in its every proceeding is indispensable, as each House represents
different constituencies and would necessarily bring a unique perspective to the recommendation process of the
JBC.16
For its part, the JBC vehemently pleads that the present Petition be dismissed as its adopted rotational scheme
and the necessary consequences thereof are not the proper subjects of a certiorari and even a mandamus
petition for the same do not involve an exercise of judicial, quasi-judicial or ministerial functions. Apart from that, it
committed no grave abuse of discretion in refusing to recognize, accept and count the petitioner's votes during its
En Banc deliberations last December 2 and 9, 2016 for it merely acted in accordance with the Constitution and
with the ruling in Chavez.  More so, there is no showing that the petitioner has no plain, speedy and adequate
remedy other than this Petition for nowhere herein did he assert that he exerted all efforts to have his concern
addressed by Congress, such as asking the latter to repudiate the rotational arrangement. Thus, for the
petitioner's failure to exhaust all remedies available to him in Congress, he deprived the latter of an opportunity to
address the matter. Also, the practice and acquiescence of both Houses of Congress to such an arrangement
operates as an estoppel against any member thereof to deny its validity. As regards a writ of mandamus, it cannot
be issued to compel the JBC to count the petitioner's votes for it will not lie to control the performance of a
discretionary act.17
The JBC further enunciates that the petitioner has no locus standi  to institute this Petition in his capacity as
Chairman of the House of Representatives Committee on Justice and Ex Officio  Member of the JBC without the
requisite resolution from both Houses of Congress authorizing him to sue as a member thereof, which absence is
a fatal defect rendering this Petition dismissible.18
In the same vein, the JBC asseverates that this Petition should also be dismissed as the allegations herein are
mere rehash of the arguments and dissents in Chavez,  which have already been exhaustively litigated and settled
therein by this Court, more in particular, the interpretation of Section 8(1), Article VIII of the 1987 Constitution,
hence, barred by the doctrine of stare decisis.  Similarly, there exists no substantial reason or even supervening
event or material change of circumstances that warrants Chavez's  reversal.19
The JBC likewise insists that it was the intent of the Framers of the Constitution for the JBC to have only seven
members. The reason for that was laid down in Chavez,  that is, to provide a solution should there be a stalemate
in the voting. As to the alleged oversight and technical omission of the Framers in changing the provision on the
JBC to reflect the bicameral nature of Congress, these are flimsy excuses to override the clear provision of the
Constitution and to disturb settled jurisprudence. As explained in Chavez,  Congress' membership in the JBC was
not in the interest of a certain constituency but in reverence to it as a major branch of government. 20
Last of all, the JBC holds that should this Petition be granted, there would be an imbalance in favor of Congress
with respect to the representation in the JBC of the three main and co-equal branches of the government. For the
unmistakable tenor of Section 8(1), Article VIII of the 1987 Constitution was to treat each ex officio  member as
representing one co-equal branch of government. And, even assuming that the current six-month rotational
scheme in the JBC created an imbalance between the two Houses of Congress, it is not within the power of this
Court or the JBC to remedy such imbalance. For the remedy lies in the amendment of this constitutional
provision.21
Given the foregoing arguments, the issues ought to be addressed by this Court can be summed up into: (1)
whether the petitioner has locus standi  to file this Petition even without the requisite resolution from both Houses
of Congress permitting him to do so; (2) whether the petitioner's direct resort to this Court via  a Petition
for Certiorari  and Mandamus is the plain, speedy and adequate remedy available to him to assail the JBC's
adoption of the rotational representation leading to the non-counting of his votes in its En Banc deliberations last
December 2 and 9, 2016; (3) whether the JBC acted with grave abuse of discretion in adopting the six-month
rotational scheme of both Houses of Congress resulting in the non-counting of the petitioner's votes in its En Banc
deliberations last December 2 and 9, 2016; (4) whether the JBC can be compelled through mandamus to count
the petitioner's votes in its En Banc deliberations last December 2 and 9, 2016; and (4) whether this Court's ruling
in Chavez  applies as stare decisis  to the present case.
Before delving into the above-stated issues, this Court would like to note that this Petition was primarily filed
because of the non-counting of the petitioner's votes in the JBC En Banc deliberations last December 2 and 9,
2016 held for the purpose of determining, among others, who will be the possible successors of the then retiring
Associate Justices of the Supreme Court Perez and Brion, whose retirements were set on December 14 and 29,
2016, respectively. The list of nominees will then be forwarded to the President as the appointing authority. With
the appointments of Associate Justices Samuel R. Martires (Martires) and Noel G. Tijam (Tijam) on March 2 and
8, 2017, respectively, this Petition has now been rendered moot insofar as the petitioner's prayers to (1) reverse
and set aside the JBC En Banc deliberations last December 2 and 9, 2016; and (2) direct the JBC to count his
votes therein as its ex officio  member,22 are concerned.
As a rule, courts do not entertain moot questions. An issue becomes moot and academic when it ceases to
present a justiciable controversy so that a declaration on the issue would be of no practical use or value. This
notwithstanding, the Court in a number of cases held that the moot and academic principle is not a magical
formula that can automatically dissuade the courts from resolving a case. Courts will still decide cases otherwise,
moot and academic if: (1) there is a grave violation of the Constitution; (2) the exceptional character of the
situation and the paramount public interest is involved; (3) when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review.23 Considering that all the arguments herein once again boil down to the proper
interpretation of Section 8(1), Article VIII of the 1987 Constitution on congressional representation in the JBC, this
Court deems it proper to proceed on deciding this Petition despite its mootness to settle the matter once and for
all.
Having said that, this Court shall now resolve the issues in seriatim.
On petitioner's locus standi.  The petitioner brings this suit in his capacity as the current Chairman of the House of
Representatives Committee on Justice and Ex Officio  Member of the JBC. His legal standing was challenged by
the JBC for lack of an enabling resolution for that purpose coming from both Houses of Congress.
Locus standi  or legal standing is defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the challenged governmental act. It requires a personal stake in
the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions. 24 With that definition,
therefore, a party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being
sought.25 Otherwise, he/she would not be allowed to litigate. Nonetheless, in a long line of cases, concerned
citizens, taxpayers and legislators when specific requirements have been met have been given standing by this
Court. This was succinctly explained in Francisco, Jr. v. The House of Representatives,  thus:
When suing as a citizen,  the interest of the petitioner assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to
be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer,  he is allowed to sue where there is a claim that public funds are illegally disbursed, or
that public money is being deflected to any improper purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law. Before he can invoke the power of judicial review, however,
he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common to all members of the public.
xxxx
As for a legislator,  he is allowed to sue to question the validity of any official action which he claims infringes his
prerogatives as a legislator. Indeed, a member of the House of Representatives has standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in his office. 26 (Emphasis and underscoring
supplied.)
The legal standing of each member of Congress was also upheld in Philippine Constitution Association v.
Enriquez,27 where this Court pronounced that:
The legal standing of the Senate, as an institution, was recognized in Gonzales v. Macaraig, Jr.  (citation omitted).
In said case, 23 Senators, comprising the entire membership of the Upper House of Congress, filed a petition to
nullify the presidential veto of Section 55 of the GAA of 1989. The filing of the suit was authorized by Senate
Resolution No. 381, adopted on February 2, 1989, and which reads as follows:
Authorizing and Directing the Committee on Finance to Bring in the Name of the Senate of the Philippines the
Proper Suit with the Supreme Court of the Philippines contesting the Constitutionality of the Veto by the President
of Special and General Provisions, particularly Section 55, of the General Appropriation Bill of 1989 (H.B. No.
19186) and For Other Purposes.
In the United States, the legal standing of a House of Congress to sue has been recognized (citation omitted).
While the petition in G.R. No. 113174 was filed by 16 Senators, including the Senate President and the Chairman
of the Committee on Finance, the suit was not authorized by the Senate itself. Likewise, the petitions in G.R. Nos.
113766 and 113888 were filed without an enabling resolution for the purpose.
Therefore, the question of the legal standing of petitioners in the three cases becomes a preliminary issue before
this Court can inquire into the validity of the presidential veto and the conditions for the implementation of some
items in the GAA of 1994.
We rule that a member of the Senate, and of the House of Representatives for that matter, has the legal standing
to question the validity of a presidential veto or a condition imposed on an item in an appropriation bill.
Where the veto is claimed to have been made without or in excess of the authority vested on the President by the
Constitution, the issue of an impermissible intrusion of the Executive into the domain of the Legislature arises
(citation omitted).
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution (citation omitted).
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress (citation omitted). In such a case, any member of
Congress can have a resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae,  noted:
This is, then, the clearest case of the Senate as a whole or individual Senators as such having a substantial
interest in the question at issue. It could likewise be said that there was the requisite injury to their rights as
Senators. It would then be futile to raise any locus standi  issue. Any intrusion into the domain appertaining to the
Senate is to be resisted. Similarly, if the situation were reversed, and it is the Executive Branch that could allege a
transgression, its officials could likewise file the corresponding action. What cannot be denied is that a Senator
has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office
(citation omitted).28 (Emphases and underscoring supplied.)
It is clear therefrom that each member of Congress has a legal standing to sue even without an enabling
resolution for that purpose so long as the questioned acts invade the powers, prerogatives and privileges of
Congress. Otherwise stated, whenever the acts affect the powers, prerogatives and privileges of Congress,
anyone of its members may validly bring an action to challenge the same to safeguard and maintain the sanctity
thereof.
With the foregoing, this Court sustains the petitioner's legal standing as Member of the House of Representatives
and as the Chairman of its Committee on Justice to assail the alternate representation of Congress in the JBC,
which arrangement led to the non-counting of his votes in its En Banc deliberations last December 2 and 9, 2016,
as it allegedly affects adversely Congress' prerogative to be fully represented before the said body.
On petitioner's direct resort to this Court via certiorari petition.  The JBC questions the propriety of the petitioner's
direct resort to this Court via the present Petition to assail its adoption of the rotational representation of Congress
resulting in the non-counting of his votes in its En Banc deliberations last December 2 and 9, 2016. The JBC
insists that the said scheme was a creation of Congress itself; as such, the petitioner's plain, speedy and
adequate remedy is to appeal to Congress to repudiate the same. Direct resort to this Court should not be allowed
if there is a remedy available to the petitioner before Congress.
Generally, the writ of certiorari can only be availed of in the absence of an appeal or any plain, speedy and
adequate remedy in the ordinary course of law. In Bordomeo v. Court of Appeals,  however, this Court clarified
that it is inadequacy that must usually determine the propriety of certiorari and not the mere absence of all other
remedies and the danger of failure of justice without the writ. A remedy is considered plain, speedy and adequate
if it will promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower
court or agency.29
In the same way, as a matter of policy, direct resort to this Court will not be entertained unless the redress desired
cannot be obtained in the appropriate lower courts, and exceptional and compelling circumstances, such as in
cases involving national interest and those of serious implications, justify the availment of the extraordinary
remedy of the writ of certiorari, calling for the exercise of its primary jurisdiction.30 In The Diocese of Bacolod v.
Commission on Elections,31 and again in Maza v. Turla,32this Court took pains in enumerating the circumstances
that would warrant a direct resort to this Court, to wit: (1) when there are genuine issues of constitutionality that
must be addressed at the most immediate time; (2) when the issues involved are of transcendental importance;
(3) cases of first impression as no jurisprudence yet exists that will guide the lower courts on this matter; (4) the
constitutional issues raised are better decided by this court; (5) the time element presented in this case cannot be
ignored; (6) the filed petition reviews the act of a constitutional organ; (7) petitioners rightly claim that they had no
other plain, speedy, and adequate remedy in the ordinary course of law; and (8) the petition includes questions
that are dictated by public welfare and the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy.33
Here, while this Court agrees with the JBC that the petitioner's preliminary remedy to question the rotational
arrangement of Congress is to ask the latter to repudiate the same, this, however, cannot be considered plain,
speedy and adequate. This Court is, thus, inclined to sustain the petitioner's direct resort to this Court not only
because it is the plain, speedy and adequate remedy available to him but also by reason of the constitutional
issues involved herein and the urgency of the matter. As correctly pointed out by the OSG, the Constitution
mandates that any vacancy to the office of an Associate Justice of the Supreme Court must be filled up within the
90-day period from its occurrence. Therefore, the JBC must submit the list of nominees prior to the start of that
period. As the nominations covered by the questioned December 2016 JBC En Banc deliberations were intended
for vacancies created by then Associate Justices Perez and Brion, who respectively retired last December 14 and
29, 2016, hence, any resort to Congress during that time would already be inadequate since the JBC list of
nominees would be submitted any moment to the Office of the President for the appointment of the next Associate
Justices of the Supreme Court. Since time is of the essence, the petitioner's direct resort to this Court is
warranted.
On the alleged grave abuse of discretion of the JBC in adopting the rotational representation of Congress
correctible by certiorari. The petitioner ascribed grave abuse of discretion on the part of the JBC in its adoption of
the rotational scheme, which led to the non-counting of his votes in its En Banc deliberations last December 2 and
9, 2016, as it deprives Congress of its full representation therein. The JBC, on the other hand, believes otherwise
for it merely acted in accordance with the mandate of the Constitution and with the ruling in Chavez. Also, such
rotational scheme was a creation of Congress, which it merely adopted.
Certiorari and Prohibition under Rule 65 of the present Rules of Court are the two special civil actions used for
determining and correcting grave abuse of discretion amounting to lack or excess of jurisdiction. The sole office of
the writ of certiorari  is the correction of errors of jurisdiction, which necessarily includes the commission of grave
abuse of discretion amounting to lack of jurisdiction. 34 The burden is on the petitioner to prove that the respondent
tribunal committed not merely a reversible error but also a grave abuse of discretion amounting to lack or excess
of jurisdiction. Showing mere abuse of discretion is not enough, for the abuse must be shown to be grave. Grave
abuse of discretion means either that the judicial or quasi-judicial power was exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, or that the respondent judge, tribunal or board evaded a
positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or whimsical manner as to
be equivalent to lack of jurisdiction.35
But, the remedies of certiorari and prohibition are necessarily broader in scope and reach before this Court as the
writs may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government,
even if the latter does not exercise judicial, quasi-judicial or ministerial functions. Thus, they are appropriate
remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive
officials.36
Here, it is beyond question that the JBC does not fall within the scope of a tribunal, board, or officer exercising
judicial or quasi-judicial functions.1âwphi1 Neither did it act in any judicial or quasi-judicial capacity nor did it
assume any performance of judicial or quasi-judicial prerogative in adopting the rotational scheme of Congress,
which was the reason for not counting the votes of the petitioner in its En Banc deliberations last December 2 and
9, 2016. But, despite this, its act is still not beyond this Court's reach as the same is correctible by certiorari if it is
tainted with grave abuse of discretion even if it is not exercising judicial and quasi-judicial functions. Now, did the
JBC abuse its discretion in adopting the six-month rotational arrangement and in not counting the votes of the
petitioner? This Court answers in the negative. As correctly pointed out by the JBC, in adopting the said
arrangement, it merely acted pursuant to the Constitution and the Chavez  ruling, which both require only one
representative from Congress in the JBC. It cannot, therefore, be faulted for simply complying with the
Constitution and jurisprudence. Moreover, said arrangement was crafted by both Houses of Congress and the
JBC merely adopted the same. By no stretch of imagination can it be regarded as grave abuse of discretion on
the part of the JBC.
With the foregoing, despite this Court's previous declaration that certiorari is the plain, speedy and adequate
remedy available to petitioner, still the same cannot prosper for the petitioner's failure to prove that the JBC acted
with grave abuse of discretion in adopting the rotational scheme.
On the propriety of mandamus.  It is essential to the issuance of a writ of mandamus that the applicant has a clear
legal right to the thing demanded and it must be the imperative duty of the respondent to perform the act required.
The burden is on the petitioner to show that there is such a clear legal right to the performance of the act, and a
corresponding compelling duty on the part of the respondent to perform the act. As an extraordinary writ, it lies
only to compel an officer to perform a ministerial duty, not a discretionary one. 37 A clear line demarcates a
discretionary act from a ministerial one. A purely ministerial act is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or
the exercise of his own judgment upon the propriety or impropriety of the act done. 38 On the other hand, if the law
imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires
neither the exercise of official discretion or judgment. 39 Clearly, the use of discretion and the performance of a
ministerial act are mutually exclusive. Further, the writ of mandamus does not issue to control or review the
exercise of discretion or to compel a course of conduct. 40
In the case at bench, the counting of votes in the selection of the nominees to the judiciary may only be
considered a ministerial duty of the JBC if such votes were cast by its rightful members and not by someone, like
the petitioner, who is not considered a member during the En Banc deliberations last December 2 and 9, 2016.
For during the questioned period, the lawful representative of Congress to the JBC is a member of the Senate and
not of the House of Representatives as per their agreed rotational scheme. Considering that a member of the
Senate already cast his vote therein, the JBC has the full discretion not to count the votes of the petitioner for it is
mandated by both the Constitution and jurisprudence to maintain that Congress will only have one representative
in the JBC. As the act of the JBC involves a discretionary one, accordingly, mandamus will not lie.
On the application of Chavez as stare decisis in this case.  The petitioner strongly maintains that Chavez  must be
revisited and reversed due to its unexecutability. But the JBC insists that the arguments herein are mere rehash of
those in Chavez,  hence, already barred by the doctrine of stare decisis.  Also, there is no cogent reason
for Chavez's  reversal.
This Court takes another glance at the arguments in Chavez  and compares them with the present arguments of
the petitioner. A careful perusal, however, reveals that, although the petitioner questioned the JBC's adoption of
the six-month rotational representation of Congress leading to the non-counting of his votes in its En Banc
deliberations last December 2 and 9, 2016, the supporting arguments hereof still boil down to the proper
interpretation of Section 8(1), Article VIII of the 1987 Constitution. Hence, being mere rehash of the arguments
in Chavez,  the application of the doctrine of stare decisis  in this case is inevitable. More so, the petitioner failed to
present strong and compelling reason not to rule this case in the same way that this Court ruled Chavez.
As stated in the beginning of this ponencia, stare decisis et non quieta movere  is a doctrine which means to
adhere to precedents and not to unsettle things which are established. This is embodied in Article 8 of the Civil
Code of the Philippines which provides, thus:
ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system
of the Philippines.
The doctrine enjoins adherence to judicial precedents and requires courts in a country to follow the rule
established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed
in subsequent cases by all courts in the land. The doctrine is based on the principle that once a question of law
bas been examined and decided, it should be deemed settled and closed to further argument. The same is
grounded on the necessity for securing certainty and stability of judicial decisions, thus, time and again, the court
has held that it is a very desirable and necessary judicial practice that when a court bas laid down a principle of
law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which
the facts are substantially the same. It simply means that for the sake of certainty, a conclusion reached in one
case should be applied to those that follow if the facts are substantially the same, even though the parties may be
different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like
cases ought to be decided alike. Thus, where the same questions relating to the same event have been put
forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule
of stare decisis  is a bar to any attempt to relitigate the same issue. The doctrine has assumed such value in our
judicial system that the Court has ruled that " [a]bandonment thereof must be based only on strong and
compelling reasons, otherwise, the becoming virtue of predictability which is expected from this Court would be
immeasurably affected and the public's confidence in the stability of the solemn pronouncements diminished."
Verily, only upon showing that circumstances attendant in a particular case override the great benefits derived by
our judicial system from the doctrine of stare decisis,  can the courts be justified in setting aside the same. 41
Here, the facts are exactly the same as in Chavez,  where this Court has already settled the issue of interpretation
of Section 8(1), Article VIII of the 1987 Constitution. Truly, such ruling may not be unanimous, but it is undoubtedly
a reflection of the wisdom of the majority of members of this Court on that matter. Chavez  cannot simply be
regarded as an erroneous application of the questioned constitutional provision for it merely applies the clear
mandate of the law, that is, Congress is entitled to only one representative in the JBC in the same way that its co-
equal branches are.
As this Court declared in Chavez,  Section 8(1), Article VIII of the 1987 Constitution is clear, categorical and
unambiguous. Thus, it needs no further construction or interpretation. Time and time again, it has been repeatedly
declared by this Court that where the law speaks in clear and categorical language, there is no room for
interpretation, only application.42 The wordings of Section 8(1), Article VIII of the 1987 Constitution are to be
considered as indicative of the final intent of its Framers, that is, for Congress as a whole to only have one
representative to sit in the JBC. This Court, therefore, cannot simply make an assumption that the Framers merely
by oversight failed to take into account the bicameral nature of Congress in drafting the same. As further laid
down in Chavez,  the Framers were not keen on adjusting the provision on congressional representation in the
JBC as it was not in the exercise of its primary function, which is to legislate. Notably, the JBC was created to
support the executive power to appoint, and Congress, as one whole body, was merely assigned a contributory
non-legislative function. No parallelism can be drawn between the representative of Congress in the JBC and the
exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated
as another co-equal branch in the matter of its JBC representation. 43
This Court cannot succumb to the argument that Congress, being composed of two distinct and separate
chambers, cannot represent each other in the JBC. Again, as this Court explained in Chavez,  such an argument
is misplaced because in the JBC, any member of Congress, whether from the Senate or the House of
Representatives, is constitutionally empowered to represent the entire Congress. It may be a constricted
constitutional authority, but it is not an absurdity. To broaden the scope of congressional representation in the JBC
is tantamount to the inclusion of a subject matter which was not included in the provision as enacted. True to its
constitutional mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all
situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of this intrusion,
the Court declines.44
While it is true that Section 8(1), Article VIII of the 1987 Constitution did not explicitly state that the JBC shall be
composed of seven members, however, the same is implied in the enumeration of who will be the members
thereof. And though it is unnecessary for the JBC composition to be an odd number as no tie-breaker is needed in
the preparation of a shortlist since judicial nominees are not decided by a "yes" or "no" vote, still, JBC's
membership cannot be increased from seven to eight for it will be a clear violation of the aforesaid constitutional
provision. To add another member in the JBC or to increase the representative of Congress to the JBC, the
remedy is not judicial but constitutional amendment.
In sum, this Court will not overthrow Chavez  for it is in accord with the constitutional mandate of giving Congress
"a representative" in the JBC. In the same manner, the adoption of the rotational scheme will not in any way
deprive Congress of its full participation in the JBC for such an arrangement is also in line with that constitutional
mandate.
WHEREFORE, premises considered, the instant Petition for Certiorari  and Mandamus is hereby DISMISSED for
lack of merit.
SO ORDERED.
Case no. 13:
EN BANC
G.R. No. 211833, April 07, 2015
FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC, COMPOSTELA-NEW BATAAN, COMPOSTELA
VALLEY PROVINCE, Petitioner, v. JUDICIAL AND BAR COUNCIL, Respondent.
DECISION
REYES, J.:
Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to this Court via a Petition for Prohibition,
Mandamus, and Certiorari, and Declaratory Relief1 under Rules 65 and 63 of the Rules of Court, respectively, with
prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to assail the policy of
the Judicial and Bar Council (JBC), requiring five years of service as judges of first-level courts before they can
qualify as applicant to second-level courts, on the ground that it is unconstitutional, and was issued with grave
abuse of discretion.chanRoblesvirtualLawlibrary
The Facts
The petitioner was appointed on September 18, 2012 as the Presiding Judge of the Municipal Circuit Trial Court,
Compostela-New Bataan, Poblacion, Compostela Valley Province, Region XI, which is a first-level court. On
September 27, 2013, he applied for the vacant position of Presiding Judge in the following Regional Trial Courts
(RTCs): Branch 31, Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad, Agusan Del Sur.
In a letter2 dated December 18, 2013, JBC's Office of Recruitment, Selection and Nomination, informed the
petitioner that he was not included in the list of candidates for the said stations. On the same date, the petitioner
sent a letter, through electronic mail, seeking reconsideration of his non-inclusion in the list of considered
applicants and protesting the inclusion of applicants who did not pass the prejudicature examination.
The petitioner was informed by the JBC Executive Officer, through a letter 3 dated February 3, 2014, that his
protest and reconsideration was duly noted by the JBC en banc. However, its decision not to include his name in
the list of applicants was upheld due to the JBC's long-standing policy of opening the chance for promotion to
second-level courts to, among others, incumbent judges who have served in their current position for at least five
years, and since the petitioner has been a judge only for more than a year, he was excluded from the list. This
caused the petitioner to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed the qualifications of an RTC judge, and the
JBC could add no more; (2) the JBC's five-year requirement violates the equal protection and due process
clauses of the Constitution; and (3) the JBC's five-year requirement violates the constitutional provision on Social
Justice and Human Rights for Equal Opportunity of Employment. The petitioner also asserted that the requirement
of the Prejudicature Program mandated by Section 10 4 of Republic Act (R.A.) No. 85575 should not be merely
directory and should be fully implemented. He further alleged that he has all the qualifications for the position
prescribed by the Constitution and by Congress, since he has already complied with the requirement of 10 years
of practice of law.
In compliance with the Court's Resolution6 dated April 22, 2014, the JBC7 and the Office of the Solicitor General
(OSG)8separately submitted their Comments. Summing up the arguments of the JBC and the OSG, they
essentially stated that the petition is procedurally infirm and that the assailed policy does not violate the equal
protection and due process clauses. They posited that: (1) the writ of certiorari and prohibition cannot issue to
prevent the JBC from performing its principal function under the Constitution to recommend appointees to the
Judiciary because the JBC is not a tribunal exercising judicial or quasi-judicial function; (2) the remedy of
mandamus and declaratory relief will not lie because the petitioner has no clear legal right that needs to be
protected; (3) the equal protection clause is not violated because the classification of lower court judges who have
served at least five years and those who have served less than five years is valid as it is performance and
experience based; and (4) there is no violation of due process as the policy is merely internal in
nature.chanRoblesvirtualLawlibrary
The Issue
The crux of this petition is whether or not the policy of JBC requiring five years of service as judges of first-level
courts before they can qualify as applicant to second-level courts is constitutional.
Ruling of the Court
Procedural Issues:
Before resolving the substantive issues, the Court considers it necessary to first determine whether or not the
action for certiorari, prohibition and mandamus, and declaratory relief commenced by the petitioner was proper.
One. The remedies of certiorari and prohibition are tenable. "The present Rules of Court uses two special civil
actions for determining and correcting grave abuse of discretion amounting to lack or excess of jurisdiction. These
are the special civil actions for certiorari and prohibition, and both are governed by Rule 65."9 As discussed in the
case of Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C. Aquino III, etc., et al. ,10 this Court explained
that:chanroblesvirtuallawlibrary
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope
and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only
by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set
right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any
branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1,
supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and executive officials. 11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a tribunal, board, or officer exercising judicial
or quasi-judicial functions. In the process of selecting and screening applicants, the JBC neither acted in any
judicial or quasi-judicial capacity nor assumed unto itself any performance of judicial or quasi-judicial prerogative.
However, since the formulation of guidelines and criteria, including the policy that the petitioner now assails, is
necessary and incidental to the exercise of the JBC's constitutional mandate, a determination must be made on
whether the JBC has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing
and enforcing the said policy.
Besides, the Court can appropriately take cognizance of this case by virtue of the Court's power of supervision
over the JBC. Jurisprudence provides that the power of supervision is the power of oversight, or the authority to
see that subordinate officers perform their duties. It ensures that the laws and the rules governing the conduct of a
government entity are observed and complied with. Supervising officials see to it that rules are followed, but they
themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are
not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe
their own manner of execution of the act. They have no discretion on this matter except to see to it that the rules
are followed.12
Following this definition, the supervisory authority of the Court over the JBC is to see to it that the JBC complies
with its own rules and procedures. Thus, when the policies of the JBC are being attacked, then the Court, through
its supervisory authority over the JBC, has the duty to inquire about the matter and ensure that the JBC complies
with its own rules.
Two. The remedy of mandamus cannot be availed of by the petitioner in assailing JBC's policy. The petitioner
insisted that mandamus is proper because his right was violated when he was not included in the list of
candidates for the RTC courts he applied for. He said that his non-inclusion in the list of candidates for these
stations has caused him direct injury.
It is essential to the issuance of a writ of mandamus that the applicant should have a clear legal right to the thing
demanded and it must be the imperative duty of the respondent to perform the act required. 13 The petitioner bears
the burden to show that there is such a clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act. The remedy of mandamus, as an extraordinary
writ, lies only to compel an officer to perform a ministerial duty, not a discretionary one. 14 Clearly, the use of
discretion and the performance of a ministerial act are mutually exclusive.
The writ of mandamus does not issue to control or review the exercise of discretion or to compel a course of
conduct, which, it quickly seems to us, was what the petitioner would have the JBC do in his favor. The function of
the JBC to select and recommend nominees for vacant judicial positions is discretionary, not ministerial. Moreso,
the petitioner cannot claim any legal right to be included in the list of nominees for judicial vacancies. Possession
of the constitutional and statutory qualifications for appointment to the judiciary may not be used to legally demand
that one's name be included in the list of candidates for a judicial vacancy. One's inclusion in the list of the
candidates depends on the discretion of the JBC, thus:chanroblesvirtuallawlibrary
The fact that an individual possesses the constitutional and statutory qualifications for appointment to the
Judiciary does not create an entitlement or expectation that his or her name be included in the list of candidates
for a judicial vacancy. By submitting an application or accepting a recommendation, one submits to the authority
of the JBC to subject the former to the search, screening, and selection process, and to use its discretion in
deciding whether or not one should be included in the list. Indeed, assuming that if one has the legal right to be
included in the list of candidates simply because he or she possesses the constitutional and statutory
qualifications, then the application process would then be reduced to a mere mechanical function of the JBC; and
the search, screening, and selection process would not only be unnecessary, but also improper. However, this is
clearly not the constitutional intent. One's inclusion in the list of candidates is subject to the discretion of the JBC
over the selection of nominees for a particular judicial post. Such candidate's inclusion is not, therefore, a legally
demandable right, but simply a privilege the conferment of which is subject to the JBC's sound discretion.
Moreover, petitioner is essentially seeking a promotional appointment, that is, a promotion from a first-level court
to a second level court. There is no law, however, that grants him the right to a promotion to second-level
courts.15 (Emphasis in the original)
Clearly, to be included as an applicant to second-level judge is not properly compellable by mandamus inasmuch
as it involves the exercise of sound discretion by the JBC.
Three. The petition for declaratory relief is improper. "An action for declaratory relief should be filed by a person
interested under a deed, a will, a contract or other written instrument, and whose rights are affected by a statute,
an executive order, a regulation or an ordinance. The relief sought under this remedy includes the interpretation
and determination of the validity of the written instrument and the judicial declaration of the parties' rights or duties
thereunder."16 "[T]he purpose of the action is to secure an authoritative statement of the rights and obligations of
the parties under a statute, deed, contract, etc., for their guidance in its enforcement or compliance and not to
settle issues arising from its alleged breach." 17
In this case, the petition for declaratory relief did not involve an unsound policy. Rather, the petition specifically
sought a judicial declaration that the petitioner has the right to be included in the list of applicants although he
failed to meet JBC's five-year requirement policy. Again, the Court reiterates that no person possesses a legal
right under the Constitution to be included in the list of nominees for vacant judicial positions. The opportunity of
appointment to judicial office is a mere privilege, and not a judicially enforceable right that may be properly
claimed by any person. The inclusion in the list of candidates, which is one of the incidents of such appointment,
is not a right either. Thus, the petitioner cannot claim any right that could have been affected by the assailed
policy.
Furthermore, the instant petition must necessarily fail because this Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of law are involved. 18 The special civil action of declaratory
relief falls under the exclusive jurisdiction of the appropriate RTC pursuant to Section 19 19 of Batas Pambansa Blg.
129, as amended by R.A.No. 7691.20
Therefore, by virtue of the Court's supervisory duty over the JBC and in the exercise of its expanded judicial
power, the Court assumes jurisdiction over the present petition. But in any event, even if the Court will set aside
procedural infirmities, the instant petition should still be dismissed.chanRoblesvirtualLawlibrary
Substantive Issues
As an offspring of the 1987 Constitution, the JBC is mandated to recommend appointees to the judiciary and only
those nominated by the JBC in a list officially transmitted to the President may be appointed by the latter as justice
or judge in the judiciary. Thus, the JBC is burdened with a great responsibility that is imbued with public interest
as it determines the men and women who will sit on the judicial bench. While the 1987 Constitution has provided
the qualifications of members of the judiciary, this does not preclude the JBC from having its own set of rules and
procedures and providing policies to effectively ensure its mandate.
The functions of searching, screening, and selecting are necessary and incidental to the JBC's principal function
of choosing and recommending nominees for vacancies in the judiciary for appointment by the President.
However, the Constitution did not lay down in precise terms the process that the JBC shall follow in determining
applicants' qualifications. In carrying out its main function, the JBC has the authority to set the standards/criteria in
choosing its nominees for every vacancy in the judiciary, subject only to the minimum qualifications required by
the Constitution and law for every position. The search for these long held qualities necessarily requires a degree
of flexibility in order to determine who is most fit among the applicants. Thus, the JBC has sufficient but not
unbridled license to act in performing its duties.
JBC's ultimate goal is to recommend nominees and not simply to fill up judicial vacancies in order to promote an
effective and efficient administration of justice. Given this pragmatic situation, the JBC had to establish a set of
uniform criteria in order to ascertain whether an applicant meets the minimum constitutional qualifications and
possesses the qualities expected of him and his office. Thus, the adoption of the five-year requirement policy
applied by JBC to the petitioner's case is necessary and incidental to the function conferred by the Constitution to
the JBC.
Equal Protection
There is no question that JBC employs standards to have a rational basis to screen applicants who cannot be all
accommodated and appointed to a vacancy in the judiciary, to determine who is best qualified among the
applicants, and not to discriminate against any particular individual or class.
The equal protection clause of the Constitution does not require the universal application of the laws to all persons
or things without distinction; what it requires is simply equality among equals as determined according to a valid
classification. Hence, the Court has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, the classification stands as long as it bears a rational relationship to some legitimate government
end.21ChanRoblesVirtualawlibrary
"The equal protection clause, therefore, does not preclude classification of individuals who may be accorded
different treatment under the law as long as the classification is reasonable and not arbitrary." 22 "The mere fact
that the legislative classification may result in actual inequality is not violative of the right to equal protection, for
every classification of persons or things for regulation by law produces inequality in some degree, but the law is
not thereby rendered invalid."23
That is the situation here. In issuing the assailed policy, the JBC merely exercised its discretion in accordance
with the constitutional requirement and its rules that a member of the Judiciary must be of proven competence,
integrity, probity and independence.24"To ensure the fulfillment of these standards in every member of the
Judiciary, the JBC has been tasked to screen aspiring judges and justices, among others, making certain that the
nominees submitted to the President are all qualified and suitably best for appointment. In this way, the appointing
process itself is shielded from the possibility of extending judicial appointment to the undeserving and mediocre
and, more importantly, to the ineligible or disqualified." 25
Consideration of experience by JBC as one factor in choosing recommended appointees does not constitute a
violation of the equal protection clause. The JBC does not discriminate when it employs number of years of
service to screen and differentiate applicants from the competition. The number of years of service provides a
relevant basis to determine proven competence which may be measured by experience, among other factors. The
difference in treatment between lower court judges who have served at least five years and those who have
served less than five years, on the other hand, was rationalized by JBC as follows:chanroblesvirtuallawlibrary
Formulating policies which streamline the selection process falls squarely under the purview of the JBC. No other
constitutional body is bestowed with the mandate and competency to set criteria for applicants that refer to the
more general categories of probity, integrity and independence.
The assailed criterion or consideration for promotion to a second-level court, which is five years experience as
judge of a first-level court, is a direct adherence to the qualities prescribed by the Constitution. Placing a premium
on many years of judicial experience, the JBC is merely applying one of the stringent constitutional standards
requiring that a member of the judiciary be of "proven competence." In determining competence, the JBC
considers, among other qualifications, experience and performance.
Based on the JBC's collective judgment, those who have been judges of first-level courts for five (5) years are
better qualified for promotion to second-level courts. It deems length of experience as a judge as indicative of
conversance with the law and court procedure. Five years is considered as a sufficient span of time for one to
acquire professional skills for the next level court, declog the dockets, put in place improved procedures and an
efficient case management system, adjust to the work environment, and gain extensive experience in the judicial
process.
A five-year stint in the Judiciary can also provide evidence of the integrity, probity, and independence of judges
seeking promotion. To merit JBC's nomination for their promotion, they must have had a "record of, and reputation
for, honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards."
Likewise, their decisions must be reflective of the soundness of their judgment, courage, rectitude, cold neutrality
and strength of character.
Hence, for the purpose of determining whether judges are worthy of promotion to the next level court, it would be
premature or difficult to assess their merit if they have had less than one year of service on the bench. 26 (Citations
omitted and emphasis in the original)
At any rate, five years of service as a lower court judge is not the only factor that determines the selection of
candidates for RTC judge to be appointed by the President. Persons with this qualification are neither
automatically selected nor do they automatically become nominees. The applicants are chosen based on an array
of factors and are evaluated based on their individual merits. Thus, it cannot be said that the questioned policy
was arbitrary, capricious, or made without any basis.
Clearly, the classification created by the challenged policy satisfies the rational basis test. The foregoing shows
that substantial distinctions do exist between lower court judges with five year experience and those with less than
five years of experience, like the petitioner, and the classification enshrined in the assailed policy is reasonable
and relevant to its legitimate purpose. The Court, thus, rules that the questioned policy does not infringe on the
equal protection clause as it is based on reasonable classification intended to gauge the proven competence of
the applicants. Therefore, the said policy is valid and constitutional.
Due Process
The petitioner averred that the assailed policy violates procedural due process for lack of publication and non-
submission to the University of the Philippines Law Center Office of the National Administrative Register (ONAR).
The petitioner said that the assailed policy will affect all applying judges, thus, the said policy should have been
published.
Contrary to the petitioner's contention, the assailed JBC policy need not be filed in the ONAR because the
publication requirement in the ONAR is confined to issuances of administrative agencies under the Executive
branch of the government.27 Since the JBC is a body under the supervision of the Supreme Court, 28 it is not
covered by the publication requirements of the Administrative Code.
Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level courts before they can
qualify as applicants to second-level courts should have been published. As a general rule, publication is
indispensable in order that all statutes, including administrative rules that are intended to enforce or implement
existing laws, attain binding force and effect. There are, however, several exceptions to the requirement of
publication, such as interpretative regulations and those merely internal in nature, which regulate only the
personnel of the administrative agency and not the public. Neither is publication required of the so-called letters of
instructions issued by administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties. 29
Here, the assailed JBC policy does not fall within the administrative rules and regulations exempted from the
publication requirement. The assailed policy involves a qualification standard by which the JBC shall determine
proven competence of an applicant. It is not an internal regulation, because if it were, it would regulate and affect
only the members of the JBC and their staff. Notably, the selection process involves a call to lawyers who meet
the qualifications in the Constitution and are willing to serve in the Judiciary to apply to these vacant positions.
Thus, it is but a natural consequence thereof that potential applicants be informed of the requirements to the
judicial positions, so that they would be able to prepare for and comply with them.
The Court also noted the fact that in JBC-009, otherwise known as the Rules of the Judicial and Bar Council, the
JBC had put its criteria in writing and listed the guidelines in determining competence, independence, integrity and
probity. Section 1, Paragraph 1 of Rule 9 expressly provides that applicants for the Court of Appeals and
the Sandiganbayan, should, as a general rule, have at least five years of experience as an RTC judge,
thus:chanroblesvirtuallawlibrary
RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE COURT OF APPEALS AND
SANDIGANBAYAN
Section 1. Additional criteria for nomination to the Court of Appeals and the Sandiganbayan . - In addition to the
foregoing guidelines the Council should consider the following in evaluating the merits of applicants for a vacancy
in the Court of Appeals and Sandiganbayan:
1. As a general rule, he must have at least five years of experience as a judge of Regional Trial Court, except
when he has in his favor outstanding credentials, as evidenced by, inter alia, impressive scholastic or educational
record and performance in the Bar examinations, excellent reputation for honesty, integrity, probity and
independence of mind; at least very satisfactory performance rating for three (3) years preceding the filing of his
application for nomination; and excellent potentials for appellate judgeship.
x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have been duly published on the website of the
JBC and in a newspaper of general circulation suggests that the JBC is aware that these are not mere internal
rules, but are rules implementing the Constitution that should be published. Thus, if the JBC were so-minded to
add special guidelines for determining competence of applicants for RTC judges, then it could and should have
amended its rules and published the same. This, the JBC did not do as JBC-009 and its amendatory rule do not
have special guidelines for applicants to the RTC.
Moreover, jurisprudence has held that rules implementing a statute should be published. Thus, by analogy,
publication is also required for the five-year requirement because it seeks to implement a constitutional provision
requiring proven competence from members of the judiciary.
Nonetheless, the JBC's failure to publish the assailed policy has not prejudiced the petitioner's private interest. At
the risk of being repetitive, the petitioner has no legal right to be included in the list of nominees for judicial
vacancies since the possession of the constitutional and statutory qualifications for appointment to the Judiciary
may not be used to legally demand that one's name be included in the list of candidates for a judicial vacancy.
One's inclusion in the shortlist is strictly within the discretion of the JBC. 30
As to the issue that the JBC failed or refused to implement the completion of the prejudicature program as a
requirement for appointment or promotion in the judiciary under R.A. No. 8557, this ground of the petition, being
unsubstantiated, was unfounded. Clearly, it cannot be said that JBC unlawfully neglects the performance of a duty
enjoined by law.
Finally, the petitioner argued but failed to establish that the assailed policy violates the constitutional provision
under social justice and human rights for equal opportunity of employment. The OSG
explained:chanroblesvirtuallawlibrary
[T]he questioned policy does not violate equality of employment opportunities. The constitutional provision does
not call for appointment to the Judiciary of all who might, for any number of reasons, wish to apply. As with all
professions, it is regulated by the State. The office of a judge is no ordinary office. It is imbued with public interest
and is central in the administration of justice x x x. Applicants who meet the constitutional and legal qualifications
must vie and withstand the competition and rigorous screening and selection process. They must submit
themselves to the selection criteria, processes and discretion of respondent JBC, which has the constitutional
mandate of screening and selecting candidates whose names will be in the list to be submitted to the President.
So long as a fair opportunity is available for all applicants who are evaluated on the basis of their individual merits
and abilities, the questioned policy cannot be struck down as unconstitutional. 31 (Citations omitted)
From the foregoing, it is apparent that the petitioner has not established a clear legal right to justify the issuance of
a preliminary injunction. The petitioner has merely filed an application with the JBC for the position of RTC judge,
and he has no clear legal right to be nominated for that office nor to be selected and included in the list to be
submitted to the President which is subject to the discretion of the JBC. The JBC has the power to determine who
shall be recommended to the judicial post. To be included in the list of applicants is a privilege as one can only be
chosen under existing criteria imposed by the JBC itself. As such, prospective applicants, including the petitioner,
cannot claim any demandable right to take part in it if they fail to meet these criteria. Hence, in the absence of a
clear legal right, the issuance of an injunctive writ is not justified.
As the constitutional body granted with the power of searching for, screening, and selecting applicants relative to
recommending appointees to the Judiciary, the JBC has the authority to determine how best to perform such
constitutional mandate. Pursuant to this authority, the JBC issues various policies setting forth the guidelines to be
observed in the evaluation of applicants, and formulates rules and guidelines in order to ensure that the rules are
updated to respond to existing circumstances. Its discretion is freed from legislative, executive or judicial
intervention to ensure that the JBC is shielded from any outside pressure and improper influence. Limiting
qualified applicants in this case to those judges with five years of experience was an exercise of discretion by the
JBC. The potential applicants, however, should have been informed of the requirements to the judicial positions,
so that they could properly prepare for and comply with them. Hence, unless there are good and compelling
reasons to do so, the Court will refrain from interfering with the exercise of JBC's powers, and will respect the
initiative and independence inherent in the latter.cralawred
WHEREFORE, premises considered, the petition is DISMISSED. The Court, however, DIRECTS that the Judicial
and Bar Council comply with the publication requirement of (1) the assailed policy requiring five years of
experience as judges of first-level courts before they can qualify as applicant to the Regional Trial Court, and (2)
other special guidelines that the Judicial and Bar Council is or will be implementing.
SO ORDERED.
Case no. 14:
A.M. No. 08-2-01-0               February 11, 2010
RE: PETITION FOR RECOGNITION OF THE EXEMPTION OF THE GOVERNMENT SERVICE INSURANCE
SYSTEM FROM PAYMENT OF LEGAL FEES. GOVERNMENT SERVICE INSURANCE SYSTEM, Petitioner.
RESOLUTION
CORONA, J.:
May the legislature exempt the Government Service Insurance System (GSIS) from legal fees imposed by the
Court on government-owned and controlled corporations and local government units? This is the central issue in
this administrative matter.
The GSIS seeks exemption from the payment of legal fees imposed on government-owned or controlled
corporations under Section 22,1 Rule 141 (Legal Fees) of the Rules of Court. The said provision states:
SEC. 22. Government exempt. –  The Republic of the Philippines, its agencies and instrumentalities are exempt
from paying the legal fees provided in this Rule. Local government corporations and government-owned or
controlled corporations with or without independent charter are not exempt from paying such fees.
However, all court actions, criminal or civil, instituted at the instance of the provincial, city or municipal treasurer or
assessor under Sec. 280 of the Local Government Code of 1991 shall be exempt from the payment of court and
sheriff’s fees. (emphasis supplied)
The GSIS anchors its petition on Section 39 of its charter, RA 2 8291 (The GSIS Act of 1997):
SEC. 39. Exemption from Tax, Legal Process and Lien. –  It is hereby declared to be the policy of the State that
the actuarial solvency of the funds of the GSIS shall be preserved and maintained at all times and that
contribution rates necessary to sustain the benefits under this Act shall be kept as low as possible in order not to
burden the members of the GSIS and their employers. Taxes imposed on the GSIS tend to impair the actuarial
solvency of its funds and increase the contribution rate necessary to sustain the benefits of this Act. Accordingly,
notwithstanding any laws to the contrary, the GSIS, its assets, revenues including accruals thereto, and benefits
paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall
continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of
this Act are hereby considered paid.Consequently, all laws, ordinances, regulations, issuances, opinions or
jurisprudence contrary to or in derogation of this provision are hereby deemed repealed, superseded and
rendered ineffective and without legal force and effect.
Moreover, these exemptions shall not be affected by subsequent laws to the contrary unless this section is
expressly, specifically and categorically revoked or repealed by law and a provision is enacted to substitute or
replace the exemption referred to herein as an essential factor to maintain and protect the solvency of the fund,
notwithstanding and independently of the guaranty of the national government to secure such solvency or liability.
The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the
benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued
by the courts, quasi-judicial agencies or administrative bodies including Commission on Audit (COA)
disallowances and from all financial obligations of the members, including his pecuniary accountability arising from
or caused or occasioned by his exercise or performance of his official functions or duties, or incurred relative to or
in connection with his position or work except when his monetary liability, contractual or otherwise, is in favour of
the GSIS. (emphasis supplied)
The GSIS then avers that courts still assess and collect legal fees in actions and proceedings instituted by the
GSIS notwithstanding its exemption from taxes, assessments, fees, charges, or duties of all kinds under Section
39. For this reason, the GSIS urges this Court to recognize its exemption from payment of legal fees.
According to the GSIS, the purpose of its exemption is to preserve and maintain the actuarial solvency of its funds
and to keep the contribution rates necessary to sustain the benefits provided by RA 8291 as low as possible. Like
the terms "taxes," "assessments," "charges," and "duties," the term "fees" is used in the law in its generic and
ordinary sense as any form of government imposition. The word "fees," defined as "charge[s] fixed by law for
services of public officers or for the use of a privilege under control of government," is qualified by the phrase "of
all kinds."3 Hence, it includes the legal fees prescribed by this Court under Rule 141. Moreover, no distinction
should be made based on the kind of fees imposed on the GSIS or the GSIS’ ability to pay because the law itself
does not distinguish based on those matters.
The GSIS argues that its exemption from the payment of legal fees would not mean that RA 8291 is superior to
the Rules of Court. It would merely show "deference" by the Court to the legislature as a co-equal branch. 4 This
deference will recognize the "compelling and overriding" State interest in the preservation of the actuarial solvency
of the GSIS for the benefit of its members.5
The GSIS further contends that the right of government workers to social security is an aspect of social justice.
The right to social security is also guaranteed under Article 22 of the Universal Declaration of Human Rights and
Article 9 of the International Covenant on Economic, Social and Cultural Rights. The Court has the power to
promulgate rules concerning the protection and enforcement of constitutional rights, including the right to social
security, but the GSIS is not compelling the Court to promulgate such rules. The GSIS is merely asking the Court
to recognize and allow the exercise of the right of the GSIS "to seek relief from the courts of justice sans payment
of legal fees."6
Required to comment on the GSIS’ petition,7 the Office of the Solicitor General (OSG) maintains that the petition
should be denied.8 According to the OSG, the issue of the GSIS’ exemption from legal fees has been resolved by
the issuance by then Court Administrator Presbitero J. Velasco, Jr. 9 of OCA10 Circular No. 93-2004:
TO : ALL JUDGES, CLERKS OF COURT AND COURT PERSONNEL OF THE METROPOLITAN TRIAL
COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL
COURTS, SHARI’A CIRCUIT COURTS
SUBJECT : REMINDER ON THE STRICT OBSERVANCE OF ADMINISTRATIVE CIRCULAR NO. 3-98 ( Re:
Payment of Docket and Filing Fees in Extra-Judicial Foreclosure ); SECTION 21, RULE 141 OF THE RULES OF
COURT; SECTION 3 OF PRESIDENTIAL DECREE NO. 385; and ADMINISTRATIVE CIRCULAR NO. 07-99 ( Re:
Exercise of Utmost Caution, Prudence, and Judiciousness in Issuance of Temporary Restraining Orders and
Writs of Preliminary Injunctions)
Pursuant to the Resolution of the Third Division of the Supreme Court dated 05 April 2004 and to give notice to
the concern raised by the [GSIS] to expedite extrajudicial foreclosure cases filed in court, we wish to remind all
concerned [of] the pertinent provisions of Administrative Circular No. 3-98, to wit:
2. No written request/petition for extrajudicial foreclosure of mortgages, real or chattel, shall be
acted upon by the Clerk of Court, as Ex-Officio Sheriff, without the corresponding filing fee
having been paid and the receipt thereof attached to the request/petition as provided for in
Sec. 7(c), of Rule 141 of the Rules of Court.
3. No certificate of sale shall be issued in favor of the highest bidder until all fees provided for
in the aforementioned sections and paragraph 3 of Section 9 (I) of Rule 141 of the Rules of
Court shall have been paid.The sheriff shall attach to the records of the case a certified copy
of the Official Receipt [O.R.] of the payment of the fees and shall note the O.R. number in the
duplicate of the Certificate of Sale attached to the records of the case.
Moreover, to settle any queries as to the status of exemption from payment of docket and legal fees of
government entities, Section 21, Rule 141 of the Rules of Court explicitly provides:
SEC. 21. Government exempt. –  The Republic of the Philippines, its agencies and instrumentalities are exempt
from paying the legal fees provided in this Rule. Local governments and government-owned or controlled
corporations with or without independent charters are not exempt from paying such fees.11
x x x           x x x          x x x
The OSG contends that there is nothing in Section 39 of RA 8291 that exempts the GSIS from fees imposed by
the Court in connection with judicial proceedings. The exemption of the GSIS from "taxes, assessments, fees,
charges or duties of all kinds" is necessarily confined to those that do not involve pleading, practice and
procedure. Rule 141 has been promulgated by the Court pursuant to its exclusive rule-making power under
Section 5(5), Article VIII of the Constitution. Thus, it may not be amended or repealed by Congress.
On this Court’s order,12 the Office of the Chief Attorney (OCAT) submitted a report and recommendation 13 on the
petition of the GSIS and the comment of the OSG thereon. According to the OCAT, the claim of the GSIS for
exemption from the payment of legal fees has no legal basis. Read in its proper and full context, Section 39
intends to preserve the actuarial solvency of GSIS funds by exempting the GSIS from government impositions
through taxes. Legal fees imposed under Rule 141 are not taxes.
The OCAT further posits that the GSIS could not have been exempted by Congress from the payment of legal
fees. Otherwise, Congress would have encroached on the rule-making power of this Court.
According to the OCAT, this is the second time that the GSIS is seeking exemption from paying legal fees. 14 The
OCAT also points out that there are other government-owned or controlled corporations and local government
units which asked for exemption from paying legal fees citing provisions in their respective charters that are
similar to Section 39 of RA 8291.15 Thus, the OCAT recommends that the petition of GSIS be denied and the
issue be settled once and for all for the guidance of the concerned parties.
Faced with the differing opinions of the GSIS, the OSG and the OCAT, we now proceed to probe into the heart of
this matter: may Congress exempt the GSIS from the payment of legal fees? No.
The GSIS urges the Court to show deference to Congress by recognizing the exemption of the GSIS under
Section 39 of RA 8291 from legal fees imposed under Rule 141. Effectively, the GSIS wants this Court to
recognize a power of Congress to repeal, amend or modify a rule of procedure promulgated by the Court.
However, the Constitution and jurisprudence do not sanction such view.
Rule 141 (on Legal Fees) of the Rules of Court was promulgated by this Court in the exercise of its rule-making
powers under Section 5(5), Article VIII of the Constitution:
Sec. 5. The Supreme Court shall have the following powers:
x x x           x x x          x x x
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court.
x x x           x x x          x x x (emphasis supplied)
The power to promulgate rules concerning pleading, practice and procedure in all courts is a traditional power of
this Court.16 It necessarily includes the power to address all questions arising from or connected to the
implementation of the said rules.
The Rules of Court was promulgated in the exercise of the Court’s rule-making power. It is essentially procedural
in nature as it does not create, diminish, increase or modify substantive rights. Corollarily, Rule 141 is basically
procedural. It does not create or take away a right but simply operates as a means to implement an existing right.
In particular, it functions to regulate the procedure of exercising a right of action and enforcing a cause of
action.17 In particular, it pertains to the procedural requirement of paying the prescribed legal fees in the filing of a
pleading or any application that initiates an action or proceeding. 18
Clearly, therefore, the payment of legal fees under Rule 141 of the Rules of Court is an integral part of the rules
promulgated by this Court pursuant to its rule-making power under Section 5(5), Article VIII of the Constitution. In
particular, it is part of the rules concerning pleading, practice and procedure in courts. Indeed, payment of legal (or
docket) fees is a jurisdictional requirement.19 It is not simply the filing of the complaint or appropriate initiatory
pleading but the payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject-
matter or nature of the action.20 Appellate docket and other lawful fees are required to be paid within the same
period for taking an appeal.21 Payment of docket fees in full within the prescribed period is mandatory for the
perfection of an appeal.22 Without such payment, the appellate court does not acquire jurisdiction over the subject
matter of the action and the decision sought to be appealed from becomes final and executory. 23
An interesting aspect of legal fees is that which relates to indigent or pauper litigants. In proper cases, courts may
waive the collection of legal fees. This, the Court has allowed in Section 21, Rule 3 and Section 19, Rule 141 of
the Rules of Court in recognition of the right of access to justice by the poor under Section 11, Article III of the
Constitution.24 Mindful that the rule with respect to indigent litigants should not be ironclad as it touches on the
right of access to justice by the poor,25 the Court acknowledged the exemption from legal fees of indigent clients of
the Public Attorney’s Office under Section 16-D of the Administrative Code of 1987, as amended by RA
9406.26 This was not an abdication by the Court of its rule-making power but simply a recognition of the limits of
that power. In particular, it reflected a keen awareness that, in the exercise of its rule-making power, the Court
may not dilute or defeat the right of access to justice of indigent litigants.
The GSIS cannot successfully invoke the right to social security of government employees in support of its
petition. It is a corporate entity whose personality is separate and distinct from that of its individual members. The
rights of its members are not its rights; its rights, powers and functions pertain to it solely and are not shared by its
members. Its capacity to sue and bring actions under Section 41(g) of RA 8291, the specific power which involves
the exemption that it claims in this case, pertains to it and not to its members. Indeed, even the GSIS
acknowledges that, in claiming exemption from the payment of legal fees, it is not asking that rules be made to
enforce the right to social security of its members but that the Court recognize the alleged right of the GSIS "to
seek relief from the courts of justice sans payment of legal fees." 27
However, the alleged right of the GSIS does not exist. The payment of legal fees does not take away the capacity
of the GSIS to sue. It simply operates as a means by which that capacity may be implemented.
Since the payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading,
practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards
of this Court’s institutional independence, the power to promulgate rules of pleading, practice and procedure is
now the Court’s exclusive domain. That power is no longer shared by this Court with Congress, much less with
the Executive.28
Speaking for the Court, then Associate Justice (now Chief Justice) Reynato S. Puno traced the history of the rule-
making power of this Court and highlighted its evolution and development in Echegaray v. Secretary of
Justice:291avvphi1
Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and
procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of
Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:
Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the
same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice
and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement
the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.
The said power of Congress, however, is not as absolute as it may appear on its surface. In In re Cunanan,
Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the practice of
law, enacted the Bar Flunkers Act of 1953 which considered as a passing grade, the average of 70% in the bar
examinations after July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations. This Court struck down
the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not a
legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years affecting the bar
candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so.
Any attempt on the part of these departments would be a clear usurpation of its function, as is the case with the
law in question." The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license
for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of
permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its
ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution
reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x
x x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More
completely, Section 5(2)5 of its Article X provided:
x x x           x x x          x x x
Sec. 5. The Supreme Court shall have the following powers.
x x x           x x x          x x x
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of
law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to
it the additional power to promulgate rules governing the integration of the Bar.
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the
rule making power of this Court. Its Section 5(5), Article VIII provides:
x x x           x x x          x x x
Section 5. The Supreme Court shall have the following powers:
x x x           x x x          x x x
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court.
The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted
for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most
importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and
procedure is no longer shared by this Court with Congress, more so with the Executive.
The separation of powers among the three co-equal branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this
Court. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal,
alter or modify any of the procedural rules promulgated by this Court. Viewed from this perspective, the claim of a
legislative grant of exemption from the payment of legal fees under Section 39 of RA 8291 necessarily fails.
Congress could not have carved out an exemption for the GSIS from the payment of legal fees without
transgressing another equally important institutional safeguard of the Court’s independence — fiscal
autonomy.30 Fiscal autonomy recognizes the power and authority of the Court to levy, assess and collect
fees,31 including legal fees. Moreover, legal fees under Rule 141 have two basic components, the Judiciary
Development Fund (JDF) and the Special Allowance for the Judiciary Fund (SAJF). 32 The laws which established
the JDF and the SAJF33 expressly declare the identical purpose of these funds to "guarantee the independence of
the Judiciary as mandated by the Constitution and public policy." 34 Legal fees therefore do not only constitute a
vital source of the Court’s financial resources but also comprise an essential element of the Court’s fiscal
independence. Any exemption from the payment of legal fees granted by Congress to government-owned or
controlled corporations and local government units will necessarily reduce the JDF and the SAJF. Undoubtedly,
such situation is constitutionally infirm for it impairs the Court’s guaranteed fiscal autonomy and erodes its
independence.
WHEREFORE, the petition of the Government Service Insurance System for recognition of its exemption from the
payment of legal fees imposed under Section 22 of Rule 141 of the Rules of Court on government-owned or
controlled corporations and local government units is hereby DENIED.
The Office of the Court Administrator is hereby directed to promptly issue a circular to inform all courts in the
Philippines of the import of this resolution.
SO ORDERED.
Case no. 15:
G.R. No. 226679
SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,
vs.
HON. FRANK E. LOBRIGO, Presiding Judge of the Regional Trial Court, Branch 3, Legazpi City, Albay, and
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
PERALTA, J.:
Challenged in this petition for certiorari and prohibition1 is the constitutionality of Section 23 of Republic
Act (R.A.) No. 9165, or the "Comprehensive Dangerous Drugs Act of 2002, "2 which provides:
SEC 23. Plea-Bargaining Provision. - Any person charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the provision on plea-bargaining. 3
The facts are not in dispute.
Petitioner Salvador A. Estipona, Jr. (Estipona) is the accused in Criminal Case No. 13586 for violation of Section
11, Article II of R.A. No. 9165 (Possession of Dangerous Drugs). The Information alleged:
That on or about the 21st day of March, 2016, in the City of Legazpi, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any
regulated drug and without the corresponding license or prescription, did then and there, willfully, unlawfully and
feloniously have, in his possession and under his control and custody, one (1) piece heat-sealed transparent
plastic sachet marked as VOP 03/21/16- l G containing 0.084 [gram] of white crystalline substance, which when
examined were found to be positive for Methamphetamine Hydrocloride (Shabu), a dangerous drug.
CONTRARY TO LAW.4
On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining
Agreement,5 praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Section
12, Article II of R.A. No. 9165 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-time offender and the minimal quantity
of the dangerous drug seized in his possession. He argued that Section 23 of R.A. No. 9165 violates: (1) the
intent of the law expressed in paragraph 3, Section 2 thereof; (2) the rule-making authority of the Supreme Court
under Section 5(5), Article VIII of the 1987 Constitution; and (3) the principle of separation of powers among the
three equal branches of the government.
In its Comment or Opposition6 dated June 27, 2016, the prosecution moved for the denial of the motion for being
contrary to Section 23 of R.A. No. 9165, which is said to be justified by the Congress' prerogative to choose which
offense it would allow plea bargaining. Later, in a Comment or Opposition 7 dated June 29, 2016, it manifested that
it "is open to the Motion of the accused to enter into plea bargaining to give life to the intent of the law as provided
in paragraph 3, Section 2 of [R.A. No.] 9165, however, with the express mandate of Section 23 of [R.A. No.] 9165
prohibiting plea bargaining, [it] is left without any choice but to reject the proposal of the accused."
On July 12, 2016, respondent Judge Frank E. Lobrigo of the Regional Trial Court (RTC), Branch 3, Legazpi City,
Albay, issued an Order denying Estipona's motion. It was opined:
The accused posited in his motion that Sec. 23 of RA No. 9165, which prohibits plea bargaining, encroaches on
the exclusive constitutional power of the Supreme Court to promulgate rules of procedure because plea
bargaining is a "rule of procedure." Indeed, plea bargaining forms part of the Rules on Criminal Procedure,
particularly under Rule 118, the rule on pre-trial conference. It is only the Rules of Court promulgated by the
Supreme Court pursuant to its constitutional rule-making power that breathes life to plea bargaining. It cannot be
found in any statute.
Without saying so, the accused implies that Sec. 23 of Republic Act No. 9165 is unconstitutional because it, in
effect, suspends the operation of Rule 118 of the Rules of Court insofar as it allows plea bargaining as part of the
mandatory pre-trial conference in criminal cases.
The Court sees merit in the argument of the accused that it is also the intendment of the law, R.A. No. 9165, to
rehabilitate an accused of a drug offense. Rehabilitation is thus only possible in cases of use of illegal drugs
because plea bargaining is disallowed. However, by case law, the Supreme Court allowed rehabilitation for
accused charged with possession of paraphernalia with traces of dangerous drugs, as held in People v. Martinez,
G.R. No. 191366, 13 December 2010. The ruling of the Supreme Court in this case manifested the relaxation of
an otherwise stringent application of Republic Act No. 9165 in order to serve an intent for the enactment of the
law, that is, to rehabilitate the offender.
Within the spirit of the disquisition in People v. Martinez, there might be plausible basis for the declaration of Sec.
23 of R.A. No. 9165, which bars plea bargaining as unconstitutional because indeed the inclusion of the provision
in the law encroaches on the exclusive constitutional power of the Supreme Court.
While basic is the precept that lower courts are not precluded from resolving, whenever warranted, constitutional
questions, the Court is not unaware of the admonition of the Supreme Court that lower courts must observe a
becoming modesty in examining constitutional questions. Upon which admonition, it is thus not for this lower court
to declare Sec. 23 of R.A. No. 9165 unconstitutional given the potential ramifications that such declaration might
have on the prosecution of illegal drug cases pending before this judicial station. 8
Estipona filed a motion for reconsideration, but it was denied in an Order 9 dated July 26, 2016; hence, this petition
raising the issues as follows:
I.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165, WHICH PROHIBITS PLEA BARGAINING IN ALL
VIOLATIONS OF THE SAID LAW, IS UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.
II.
WHETHER SECTION 23 OF REPUBLIC ACT NO. 9165 IS UNCONSTITUTIONAL AS IT ENCROACHED UPON
THE POWER OF THE SUPREME COURT TO PROMULGATE RULES OF PROCEDURE.
III.
WHETHER THE REGIONAL TRIAL COURT, AS PRESIDED BY HON. FRANK E. LOBRIGO, COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
REFUSED TO DECLARE SECTION 23 OF REPUBLIC ACT NO. 9165 AS UNCONSTITUTIONAL. 10
We grant the petition.
PROCEDURAL MATTERS
The People of the Philippines, through the Office of the Solicitor General (OSG), contends that the petition should
be dismissed outright for being procedurally defective on the grounds that: (1) the Congress should have been
impleaded as an indispensable party; (2) the constitutionality of Section 23 of R.A. No. 9165 cannot be attacked
collaterally; and (3) the proper recourse should have been a petition for declaratory relief before this Court or a
petition for certiorari before the RTC. Moreover, the OSG argues that the petition fails to satisfy the requisites of
judicial review because: (1) Estipona lacks legal standing to sue for failure to show direct injury; (2) there is no
actual case or controversy; and (3) the constitutionality of Section 23 of R.A. No. 9165 is not the lis mota of the
case.
On matters of technicality, some points raised by the OSG maybe correct. 1âwphi1 Nonetheless, without much
further ado, it must be underscored that it is within this Court's power to make exceptions to the rules of court.
Under proper conditions, We may permit the full and exhaustive ventilation of the parties' arguments and positions
despite the supposed technical infirmities of a petition or its alleged procedural flaws. In discharging its solemn
duty as the final arbiter of constitutional issues, the Court shall not shirk from its obligation to determine novel
issues, or issues of first impression, with far-reaching implications. 11
Likewise, matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are present.12 We have acknowledged that the Philippines' problem on illegal drugs
has reached "epidemic," "monstrous," and "harrowing" proportions, 13 and that its disastrously harmful social,
economic, and spiritual effects have broken the lives, shattered the hopes, and destroyed the future of thousands
especially our young citizens.14 At the same time, We have equally noted that "as urgent as the campaign against
the drug problem must be, so must we as urgently, if not more so, be vigilant in the protection of the rights of the
accused as mandated by the Constitution x x x who, because of excessive zeal on the part of the law enforcers,
may be unjustly accused and convicted."15 Fully aware of the gravity of the drug menace that has beset our
country and its direct link to certain crimes, the Court, within its sphere, must do its part to assist in the all-out
effort to lessen, if not totally eradicate, the continued presence of drug lords, pushers and users. 16
Bearing in mind the very important and pivotal issues raised in this petition, technical matters should not deter Us
from having to make the final and definitive pronouncement that everyone else depends for enlightenment and
guidance.17 When public interest requires, the Court may brush aside procedural rules in order to resolve a
constitutional issue.18
x x x [T]he Court is invested with the power to suspend the application of the rules of procedure as a necessary
complement of its power to promulgate the same. Barnes v. Hon. Quijano Padilla discussed the rationale for this
tenet, viz. :
Let it be emphasized that the rules of procedure should be viewed as mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate
rather than promote substantial justice, must always be eschewed. Even the Rules of Court reflect this principle.
The power to suspend or even disregard rules can be so pervasive and compelling as to alter even that which this
Court itself has already declared to be final, x x x.
The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities. Time and again, this Court
has consistently held that rules must not be applied rigidly so as not to override substantial justice.  19
SUBSTANTIVE ISSUES
Rule-making power of the Supreme
Court under the 1987 Constitution
Section 5(5), A1iicle VIII of the 1987 Constitution explicitly provides:
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court.
The power to promulgate rules of pleading, practice and procedure is now Our exclusive domain and no longer
shared with the Executive and Legislative departments. 20 In Echegaray v. Secretary of Justice, 21 then Associate
Justice (later Chief Justice) Reynato S. Puno traced the history of the Court's rule-making power and highlighted
its evolution and development.
x x x It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by
our Constitutions to this Court to enhance its independence,  for in the words of Justice Isagani Cruz "without
independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as
champions of justice." Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading,
practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to
the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:
"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the
same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice
and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement
the rules concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines."
The said power of Congress, however, is not as absolute as it may appear on its surface. In In re:
Cunanan Congress in the exercise of its power to amend rules of the Supreme Court regarding admission to the
practice of law, enacted the Bar Flunkers Act of 1953 which considered as a passing grade, the average of 70% in
the bar examinations after July 4, 1946 up to August 1951 and 71 % in the 1952 bar examinations. This Court
struck down the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x x the disputed law is not
a legislation; it is a judgment - a judgment promulgated by this Court during the aforecited years affecting the bar
candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may do so.
Any attempt on the part of these departments would be a clear usurpation of its function, as is the case with the
law in question." The venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license
for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of
permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By its
ruling, this Court qualified the absolutist tone of the power of Congress  to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution
reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x
x x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More
completely, Section 5(2)5 of its Article X provided:
xxxx
"Sec. 5. The Supreme Court shall have the following powers.
xxxx
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of
law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights."
Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to
it the additional power to promulgate rules governing the integration of the Bar.
The 1987 Constitution molded an even stronger and more independent judiciary.  Among others, it enhanced the
rule making power of this Court. Its Section 5(5), Article VIII provides:
xxxx
"Section 5. The Supreme Court shall have the following powers:
xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,  pleading, practice and
procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court. "
The rule making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted
for the .first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most
importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and
procedure is no longer shared by this Court with Congress, more so with the Executive. x x x. 22
Just recently, Carpio-Morales v. Court of Appeals (Sixth Division)23 further elucidated:
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional
design, vested unto Congress, the power to promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts belongs exclusively to this Court. Section 5 (5),
Article VIII of the 1987 Constitution reads:
xxxx
In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-making authority,
which, under the 1935 and 1973 Constitutions, had been priorly subjected to a power-sharing scheme with
Congress. As it now stands, the 1987 Constitution textually altered the old provisions by deleting the concurrent
power of Congress to amend the rules, thus solidifying in one body the Court's rule-making powers, in line with the
Framers' vision of institutionalizing a " [ s] tronger and more independent judiciary."
The records of the deliberations of the Constitutional Commission would show that the Framers debated on
whether or not the Court's rulemaking powers should be shared with Congress. There was an initial suggestion to
insert the sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court," right after the phrase "Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice
of law, the integrated bar, and legal assistance to the underprivileged[,]" in the enumeration of powers of the
Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead,
after the word "[under]privileged," place a comma(,) to be followed by "the phrase with the concurrence of the
National Assembly." Eventually, a compromise formulation was reached wherein (a) the Committee members
agreed to Commissioner Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or
supplement the said rules with the advice and concurrence of the Supreme Court" and (b) in turn, Commissioner
Aquino agreed to withdraw his proposal to add "the phrase with the concurrence of the National Assembly." The
changes were approved, thereby leading to the present lack of textual reference to any form of Congressional
participation in Section 5 (5), Article VIII, supra. Theprevailing consideration was that "both bodies, the Supreme
Court and the Legislature, have their inherent powers."
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning pleading,
practice, and procedure.x x x.24
The separation of powers among the three co-equal branches of our government has erected an impregnable wall
that keeps the power to promulgate rules of pleading, practice and procedure within the sole province of this
Court.25 The other branches trespass upon this prerogative if they enact laws or issue orders that effectively
repeal, alter or modify any of the procedural rules promulgated by the Court. 26 Viewed from this perspective, We
have rejected previous attempts on the part of the Congress, in the exercise of its legislative power, to amend the
Rules of Court (Rules), to wit:
1. Fabian v. Desierto27 -Appeal from the decision of the Office of the Ombudsman in an administrative disciplinary
case should be taken to the Court of Appeals under the provisions of Rule 43 of the Rules instead of appeal
by certiorari under Rule 45 as provided in Section 27 of R.A. No. 6770.
2. Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc.  28 - The Cooperative Code
provisions on notices cannot replace the rules on summons under Rule 14 of the Rules.
3. RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal Fees;  29 Baguio Market
Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Hon. Judge Cabato-Cortes; 30 In Re: Exemption of the
National Power Corporation from Payment of Filing/Docket Fees;  31 and Rep. of the Phils. v. Hon. Mangotara, et
al. 32 - Despite statutory provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from the payment of
legal fees imposed by Rule 141 of the Rules.
4. Carpio-Morales v. Court of Appeals (Sixth Division)33 - The first paragraph of Section 14 of R.A. No. 6770,
which prohibits courts except the Supreme Court from issuing temporary restraining order and/or writ of
preliminary injunction to enjoin an investigation conducted by the Ombudsman, is unconstitutional as it
contravenes Rule 58 of the Rules.
Considering that the aforesaid laws effectively modified the Rules, this Court asserted its discretion to amend,
repeal or even establish new rules of procedure, to the exclusion of the legislative and executive branches of
government. To reiterate, the Court's authority to promulgate rules on pleading, practice, and procedure is
exclusive and one of the safeguards of Our institutional independence. 34
Plea bargaining in criminal cases
Plea bargaining, as a rule and a practice, has been existing in our jurisdiction since July 1, 1940, when the
1940 Rules took effect. Section 4, Rule 114 (Pleas) of which stated:
SEC. 4. Plea of guilty of lesser offense. - The defendant, with the consent of the court and of the fiscal, may plead
guilty of any lesser offense than that charged which is necessarily included in the offense charged in the complaint
or information.
When the 1964 Rules became effective on January 1, 1964, the same provision was retained under Rule 118
(Pleas).1âwphi1 Subsequently, with the effectivity of the 1985 Rules on January 1, 1985, the provision on plea of
guilty to a lesser offense was amended. Section 2, Rule 116 provided:
SEC. 2. Plea of guilty to a lesser offense. - The accused with the consent of the offended party and the fiscal, may
be allowed by the trial court to plead guilty to a lesser offense, regardless of whether or not it is necessarily
included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. No amendment
of the complaint or information is necessary. (4a, R-118)
As well, the term "plea bargaining" was first mentioned and expressly required during pre-trial. Section 2, Rule 118
mandated:
SEC. 2. Pre-trial conference; subjects. - The pre-trial conference shall consider the following:
(a) Plea bargaining;
(b) Stipulation of facts;
(c) Marking for identification of evidence of the parties;
(d) Waiver of objections to admissibility of evidence; and
(e) Such other matters as will promote a fair and expeditious trial. (n)
The 1985 Rules was later amended. While the wordings of Section 2, Rule 118 was retained, Section 2, Rule 116
was modified in 1987. A second paragraph was added, stating that "[a] conviction under this plea shall be
equivalent to a conviction of the offense charged for purposes of double jeopardy."
When R.A. No. 8493 ("Speedy Trial Act of 1998 ') was enacted,35 Section 2, Rule 118 of the Rules was
substantially adopted. Section 2 of the law required that plea bargaining and other matters 36 that will promote a fair
and expeditious trial are to be considered during pre-trial conference in all criminal cases cognizable by the
Municipal Trial Court, Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the
Sandiganbayan.
Currently, the pertinent rules on plea bargaining under the 2000 Rules37 are quoted below:
RULE 116 (Arraignment and Plea):
SEC. 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with the consent of the offended party
and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily
included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty
to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is
necessary. (Sec. 4, Cir. 38-98)
RULE 118 (Pre-trial):
SEC. 1. Pre-trial; mandatory in criminal cases. - In all criminal cases cognizable by the Sandiganbayan, Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit
Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires
jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of
the Supreme Court, order a pre-trial conference to consider the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. (Sec. 2 &
3, Cir. 38-98)
Plea bargaining is a rule of procedure
The Supreme Court's sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation of
substantive rights, i.e., the former should not diminish, increase or modify the latter. 38 "Substantive law is that part
of the law which creates, defines and regulates rights, or which regulates the right and duties which give rise to a
cause of action; that part of the law which courts are established to administer; as opposed to adjective or
remedial law, which prescribes the method of enforcing rights or obtain redress for their invasions." 39 Fabian v.
Hon. Desierto40 laid down the test for determining whether a rule is substantive or procedural in nature.
It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence
within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may
be procedural in one context and substantive in another. It is admitted that what is procedural and what is
substantive is frequently a question of great difficulty. It is not, however, an insurmountable problem if a rational
and pragmatic approach is taken within the context of our own procedural and jurisdictional system.
In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower
courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates
procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law  and for justly
administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is
not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter;
but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 41
In several occasions, We dismissed the argument that a procedural rule violates substantive rights. For example,
in People v. Lacson, 42 Section 8, Rule 117 of the Rules on provisional dismissal was held as a special procedural
limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an
inherent part thereof, so that its expiration operates to extinguish the right of the State to prosecute the
accused.43 Speaking through then Associate Justice Romeo J. Callejo, Sr., the Court opined:
In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the
revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice
to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under
Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests
and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the
State and the accused. It took into account the substantial rights of both the State and of the accused to due
process. The Court believed that the time limit is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the
Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes
a denial of justice. The petitioners failed to show a manifest shortness or insufficiency of the time-bar.
The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en
banc primarily to enhance the administration of the criminal justice system and the rights to due process of the
State and the accused by eliminating the deleterious practice of trial courts of provisionally dismissing criminal
cases on motion of either the prosecution or the accused or jointly, either with no time-bar for the revival thereof or
with a specific or definite period for such revival by the public prosecutor. There were times when such criminal
cases were no longer revived or refiled due to causes beyond the control of the public prosecutor or because of
the indolence, apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the
accused despite the mandate to public prosecutors and trial judges to expedite criminal proceedings.
It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, especially
if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by
which dominant cases have been known to expire.
The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to
prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost.
Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more
difficult. The accused may become a fugitive from justice or commit another crime. The longer the lapse of time
from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime.
On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal
case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of
the accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and
his family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues
to suffer those penalties and disabilities incompatible with the presumption of innocence. He may also lose his
witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to
defend himself and thus eschew the fairness of the entire criminal justice system.
The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of
the criminal justice system for the benefit of the State and the accused; not for the accused only.44
Also, We said in Jaylo, et al. v. Sandiganbayan, et al. 45 that Section 6, Rule 120 of the Rules, which provides that
an accused who failed to appear at the promulgation of the judgment of conviction shall lose the remedies
available against the judgment, does not take away substantive rights but merely provides the manner through
which an existing right may be implemented.
Section 6, Rule 120, of the Rules of Court, does not take away per se the right of the convicted accused to avail of
the remedies under the Rules. It is the failure of the accused to appear without justifiable cause on the scheduled
date of promulgation of the judgment of conviction that forfeits their right to avail themselves of the remedies
against the judgment.
It is not correct to say that Section 6, Rule 120, of the Rules of Court diminishes or modifies the substantive rights
of petitioners. It only works in pursuance of the power of the Supreme Court to "provide a simplified and
inexpensive procedure for the speedy disposition of cases." This provision protects the courts from delay in the
speedy disposition of criminal cases - delay arising from the simple expediency of nonappearance of the accused
on the scheduled promulgation of the judgment of conviction. 46
By the same token, it is towards the provision of a simplified and inexpensive procedure for the speedy disposition
of cases in all courts47 that the rules on plea bargaining was introduced. As a way of disposing criminal charges by
agreement of the parties, plea bargaining is considered to be an "important," "essential," "highly desirable," and
"legitimate" component of the administration of justice. 48 Some of its salutary effects include:
x x x For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the
probable penalty are obvious - his exposure is reduced, the correctional processes can begin immediately, and
the practical burdens of a trial are eliminated. For the State there are also advantages - the more promptly
imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with
the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is
a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its
burden of proof. (Brady v. United States, 397 U.S. 742, 752 [1970])
Disposition of charges after plea discussions x x x leads to prompt and largely final disposition of most criminal
cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are
denied release pending trial; it protects the public from those accused persons who are prone to continue criminal
conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances
whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. (Santobello v. New
York, 404 U.S. 257, 261 [1971])
The defendant avoids extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a
speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever
potential there may be for rehabilitation. Judges and prosecutors conserve vital and scarce resources. The public
is protected from the risks posed by those charged with criminal offenses who are at large on bail while awaiting
completion of criminal proceedings. (Blackledge v. Allison, 431 U.S. 63, 71 [1977])
In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work
out a mutually satisfactory disposition of the case subject to court approval." 49 There is give-and-take negotiation
common in plea bargaining.50 The essence of the agreement is that both the prosecution and the defense make
concessions to avoid potential losses.51 Properly administered, plea bargaining is to be encouraged because the
chief virtues of the system - speed, economy, and finality - can benefit the accused, the offended party, the
prosecution, and the court.52
Considering the presence of mutuality of advantage, 53 the rules on plea bargaining neither create a right nor take
away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial
process for enforcing rights and duties recognized by substantive law and for justly administering remedy and
redress for a disregard or infraction of them.
The decision to plead guilty is often heavily influenced by the defendant's appraisal of the prosecution's case
against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. 54 In
any case, whether it be to the offense charged or to a lesser crime, a guilty plea is a "serious and sobering
occasion" inasmuch as it constitutes a waiver of the fundamental rights to be presumed innocent until the contrary
is proved, to be heard by himself and counsel, to meet the witnesses face to face, to bail (except those charged
with offenses punishable by reclusion perpetua when evidence of guilt is strong), to be convicted by proof beyond
reasonable doubt, and not to be compelled to be a witness against himself. 55
Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by trying him rather than
accepting a plea of guilty; the prosecutor need not do so if he prefers to go to trial. 56 Under the present Rules, the
acceptance of an offer to plead guilty is not a demandable right but depends on the consent of the offended
party57 and the prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is
necessarily included in the offense charged.58 The reason for this is that the prosecutor has full control of the
prosecution of criminal actions; his duty is to always prosecute the proper offense, not any lesser or graver one,
based on what the evidence on hand can sustain.59
[Courts] normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial
deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the
strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such as
government enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a
criminal justice system that simply cannot accommodate the litigation of every serious criminal charge. Because
these decisions "are not readily susceptible to the kind of analysis the courts are competent to undertake," we
have been "properly hesitant to examine the decision whether to prosecute. " 60
The plea is further addressed to the sound discretion of the trial court, which may allow the accused to plead guilty
to a lesser offense which is necessarily included in the offense charged. The word may denotes an exercise of
discretion upon the trial court on whether to allow the accused to make such plea. 61 Trial courts are exhorted to
keep in mind that a plea of guilty for a lighter offense than that actually charged is not supposed to be allowed as
a matter of bargaining or compromise for the convenience of the accused. 62
Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the prosecution
already rested its case.63 As regards plea bargaining during the pre-trial stage, the trial court's exercise of
discretion should not amount to a grave abuse thereof. 64 "Grave abuse of discretion" is a capricious and whimsical
exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of
passion or hostility; it arises when a court or tribunal violates the Constitution, the law or existing jurisprudence. 65
If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the prosecution
rested its case, the rules allow such a plea only when the prosecution does not have sufficient evidence to
establish the guilt of the crime charged.66 The only basis on which the prosecutor and the court could rightfully act
in allowing change in the former plea of not guilty could be nothing more and nothing less than the evidence on
record. As soon as the prosecutor has submitted a comment whether for or against said motion, it behooves the
trial court to assiduously study the prosecution's evidence as well as all the circumstances upon which the
accused made his change of plea to the end that the interests of justice and of the public will be served. 67 The
ruling on the motion must disclose the strength or weakness of the prosecution's evidence. 68 Absent any finding
on the weight of the evidence on hand, the judge's acceptance of the defendant's change of plea is improper and
irregular.69
On whether Section 23 of R.A. No.
9165 violates the equal protection
clause
At this point, We shall not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary to the constitutional
right to equal protection of the law in order not to preempt any future discussion by the Court on the policy
considerations behind Section 23 of R.A. No. 9165. Pending deliberation on whether or not to adopt the statutory
provision in toto or a qualified version thereof, We deem it proper to declare as invalid the prohibition against plea
bargaining on drug cases until and unless it is made part of the rules of procedure through an administrative
circular duly issued for the purpose.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. Section 23 of Republic Act No. 9165 is
declared unconstitutional for being contrary to the rule-making authority of the Supreme Court under Section 5(5),
Article VIII of the 1987 Constitution.
SO ORDERED.
EN BANC
G.R. No. 196231               January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE
AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY. CARLITO
D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR.,
IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG LEGAL
AFFAIRS, Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012
Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor
Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No.
6770.2
In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that the
President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court, however,
reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust; and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary proceedings against
her, solely questioned the jurisdiction of the OP to subject her to disciplinary proceedings. The Court affirmed the
continuation of the proceedings against her after upholding the constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-J-460 is
REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of
backwages corresponding to the period of suspension effective immediately, even as the Office of the
Ombudsman is directed to proceed with the investigation in connection with the above case against petitioner. In
G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. ll-B-003 against Special Prosecutor Wendell
Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of
public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989. 3
In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of the Solicitor
General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal Affairs
Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District Senior Inspector
Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat, robbery extortion and physical
injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge for grave
misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on
the same allegations made by Kalaw before the PNP-IAS. 5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers (MOLEO),
directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The Office of the Regional
Director of the NAPOLCOM duly complied on July 24, 2008. 6 Mendoza, et al. filed their position papers with
Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City Prosecutor of
Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to substantiate his
allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the dismissal without prejudice of the
administrative case against Mendoza, et al. for Kalaw’s failure to prosecute. 9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales forwarded the entire
records to the Office of then Ombudsman Merceditas Gutierrez for her review. 10 In his draft decision, Gonzales
found Mendoza, et al. guilty of grave misconduct and imposed on them the penalty of dismissal from the service. 11
Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’ recommendation on
October 30, 2009. Mendoza, et al. filed a motion for reconsideration 12 on November 5, 2009, followed by a
Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to the Criminal
Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009, the case was assigned to
Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for review and recommendation. 14
GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for appropriate action
on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’ office on April 27, 2010. Gonzales
reviewed the draft and endorsed the order, together with the case records, on May 6, 2010 for the final approval
by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza hijacked a
tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board as hostages. While the
government exerted earnest attempts to peacefully resolve the hostage-taking, it ended tragically, resulting in the
deaths of Mendoza and several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the Department of
Interior and Local Government to conduct a joint thorough investigation of the incident. The two departments
issued Joint Department Order No. 01-2010, creating an Incident Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable for their "gross
negligence and grave misconduct in handling the case against Mendoza." 17 The IIRC stated that the Ombudsman
and Gonzales’ failure to promptly resolve Mendoza’s motion for reconsideration, "without justification and despite
repeated pleas" xxx "precipitated the desperate resort to hostage-taking." 18 The IIRC recommended the referral of
its findings to the OP for further determination of possible administrative offenses and for the initiation of the
proper administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty and for Misconduct in Office. 20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the service. 21 According to
the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s] Motion for Reconsideration [‘that
spanned for nine (9) long months’] xxx amounted to gross neglect of duty" and "constituted a flagrant disregard of
the Office of the Ombudsman’s own Rules of Procedure." 22
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April 27, 2010. On
May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the Office of the Ombudsman
for final approval. Since the draft order on Mendoza’s motion for reconsideration had to undergo different levels of
preparation, review and approval, the period it took to resolve the motion could not be unjustified, since he himself
acted on the draft order only within nine (9) calendars days from his receipt of the order. 23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several others, before
the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed an Urgent Petition for Bail
which the prosecution opposed. The Sandiganbayan denied Garcia's urgent petition for bail on January 7, 2010,
in view of the strength of the prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff, entered into a plea
bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i) withdraw his plea of not guilty to
the charge of plunder and enter a plea of guilty to the lesser offense of indirect bribery; and (ii) withdraw his plea
of not guilty to the charge of money laundering and enter a guilty plea to the lesser offense of facilitating money
laundering. In exchange, he would convey to the government his ownership, rights and other interests over the
real and personal properties enumerated in the Agreement and the bank deposits alleged in the information. 25
The Sandiganbayan approved the Agreement on May 4, 2010 26 based on the parties’ submitted Joint Motion for
Approval.27
The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on Justice of the
House of Representatives to conduct an investigation. After public hearings, the Committee found that Sulit, her
deputies and assistants committed culpable violations of the Constitution and betrayal of public trust – grounds for
removal under Section 8(2) of RA No. 6770.28 The Committee recommended to the President the dismissal from
the service of Sulit and the filing of appropriate charges against her deputies and assistants before the appropriate
government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit. 29 On March 24, 2011, Sulit
filed her Written Explanation, questioning the OP’s jurisdiction. 30 The question of jurisdiction notwithstanding, the
OP set the case for preliminary investigation on April 15, 2011, prompting Sulit to seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare
Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation
of the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely
with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under
the Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of
J. Marvic Mario Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the Court’s
September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration of our ruling
reinstating Gonzales.
This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case since a serious
constitutional question has been raised and is one of the underlying bases for the validity or invalidity of the
presidential action. If the President does not have any constitutional authority to discipline a Deputy Ombudsman
and/or a Special Prosecutor in the first place, then any ruling on the legal correctness of the OP’s decision on the
merits will be an empty one.
In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably anchored on the
final and correct ruling on the constitutional issue, the whole case – including the constitutional issue – remains
alive for the Court’s consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the administrative
disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable – not a political
– question. A justiciable question is one which is inherently susceptible of being decided on grounds recognized
by law,31 as where the court finds that there are constitutionally-imposed limits on the exercise of the powers
conferred on a political branch of the government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant concurrent
disciplinary authority to the President. Our inquiry is limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core constitutional principle of the
independence of the Office of the Ombudsman as expressed in Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA No. 6770 grants
where the Constitution confers none. When exercised authority is drawn from a vacuum, more so when the
authority runs counter to a core constitutional principle and constitutional intents, the Court is duty-bound to
intervene under the powers and duties granted and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the
people's medium for airing grievances and for direct redress against abuses and misconduct in the government.
Ultimately, however, these agencies failed to fully realize their objective for lack of the political independence
necessary for the effective performance of their function as government critic. 33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated office
to give it political independence and adequate powers to enforce its mandate. Pursuant to the 1973 Constitution,
President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD
No. 1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to
investigate, on complaint or motu proprio, any administrative act of any administrative agency, including any
government-owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file the
corresponding information, and control the prosecution of these cases. 34
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat.
Unlike in the 1973 Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are
to enforce the state policy in Section 27, Article II 35 and the standard of accountability in public service under
Section 1, Article XI of the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and
lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau.36 This constitutional vision of a Philippine Ombudsman practically intends to make
the Ombudsman an authority to directly check and guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to
enable it to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or
over Members of Congress, and the Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an "activist watchman," 37 the Court has upheld its actions, although not
squarely falling under the broad powers granted it by the Constitution and by RA No. 6770, if these actions are
reasonably in line with its official function and consistent with the law and the Constitution. 38
The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their
tenure. To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from
the pressures and influence of officialdom and partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to
be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government
constitutional agency that is considered "a notch above other grievance-handling investigative bodies." 39 It has
powers, both constitutional and statutory, that are commensurate with its daunting task of enforcing accountability
of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence
Under the Constitution, several constitutional bodies have been expressly labeled as "independent." 41 The extent
of the independence enjoyed by these constitutional bodies however varies and is to be interpreted with two
significant considerations in mind: first, the functions performed or the powers involved in a given case; and
second, consistency of any allowable interference to these powers and functions, with the principle of checks and
balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions
shares certain characteristics – they do not owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution
intended that these "independent" bodies be insulated from political pressure to the extent that the absence of
"independence" would result in the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the interference that the
President may bring and maintained that the independence and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema
to fiscal autonomy and violative not only the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based.
The constitutional deliberations explain the Constitutional Commissions’ need for independence. In the
deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a
constitutionally-created Civil Service Commission, instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom from the tentacles of politics. 43 In a similar manner, the
deliberations of the 1987 Constitution on the Commission on Audit highlighted the developments in the past
Constitutions geared towards insulating the Commission on Audit from political pressure. 44
Notably, the Constitution also created an "independent" Commission on Human Rights, although it enjoys a lesser
degree of independence since it is not granted fiscal autonomy in the manner fiscal autonomy is granted to the
constitutional commissions. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution
clearly expressed their desire to keep the Commission independent from the executive branch and other political
leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept,
he can advise us on how to reconcile his position with ours. The position of the committee is that we need a body
that would be able to work and cooperate with the executive because the Commissioner is right. Many of the
services needed by this commission would need not only the cooperation of the executive branch of the
government but also of the judicial branch of government. This is going to be a permanent constitutional
commission over time. We also want a commission to function even under the worst circumstance when the
executive may not be very cooperative. However, the question in our mind is: Can it still function during that time?
Hence, we are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize the
need for coordination and cooperation. We also would like to build in some safeguards that it will not be rendered
useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go to a country,
the most credible organizations are independent human rights bodies. Very often these are private organizations,
many of which are prosecuted, such as those we find in many countries in Latin America. In fact, what we are
proposing is an independent body on human rights, which would provide governments with credibility precisely
because it is independent of the present administration. Whatever it says on the human rights situation will be
credible because it is not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in opposition
today and those who are in power today may be in the opposition tomorrow. Therefore, if we have a Commission
on Human Rights that would investigate and make sure that the rights of each one is protected, then we shall
have a body that could stand up to any power, to defend the rights of individuals against arrest, unfair trial, and so
on.45
These deliberative considerations abundantly show that the independent constitutional commissions have been
consistently intended by the framers to be independent from executive control or supervision or any form of
political influence. At least insofar as these bodies are concerned, jurisprudence is not scarce on how the
"independence" granted to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been characterized
under the Constitution as "independent," are not under the control of the President, even if they discharge
functions that are executive in nature. The Court declared as unconstitutional the President’s act of temporarily
appointing the respondent in that case as Acting Chairman of the Comelec "however well-meaning" 47 it might have
been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners of the
independent Commission on Human Rights could not be placed under the discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the
Constitution to be independent – as the Commission on Human Rights – and vested with the delicate and vital
functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as
well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in
office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No.
163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights has
to be declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the Commission
on Elections by Congress a "trampling" of the constitutional mandate of independence of this body. Obviously, the
mere review of rules places considerably less pressure on a constitutional body than the Executive’s power to
discipline and remove key officials of the Office of the Ombudsman, yet the Court struck down the law as
unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but is similar in
degree and kind – to the independence similarly guaranteed by the Constitution to the Constitutional
Commissions since all these offices fill the political interstices of a republican democracy that are crucial to its
existence and proper functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against presidential interference with the constitutional
commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other, in
protecting the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons
to invalidate Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the
President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s
disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself.
The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to
support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with
the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the
principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as she is, if only because they are subject to
pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still
in a young democracy like the Philippines where graft and corruption is still a major problem for the government.
For these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman)
should be declared void.
The deliberations of the Constitutional Commission on the independence of the Ombudsman fully support this
position. Commissioner Florenz Regalado of the Constitutional Commission expressed his apprehension that any
form of presidential control over the Office of the Ombudsman would diminish its independence. 51 The following
exchanges between Commissioners Blas Ople and Christian Monsod further reveal the constitutional intent to
keep the Office of the Ombudsman independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional arm for good government, efficiency of the public
service and the integrity of the President of the Philippines, instead of creating another agency in a kind of
administrative limbo which would be accountable to no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when we prepared the
report, it was the opinion of the Committee — and I believe it still is — that it may not contribute to the
effectiveness of this office of the Ombudsman precisely because many of the culprits in inefficiency, injustice and
impropriety are in the executive department. Therefore, as we saw the wrong implementation of the Tanodbayan
which was under the tremendous influence of the President, it was an ineffectual body and was reduced to the
function of a special fiscal. The whole purpose of our proposal is precisely to separate those functions and to
produce a vehicle that will give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot
accept the proposition.52
The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to
remove and discipline key officials of the Office of the Ombudsman, or to exercise any power over them, would
result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the integrity
and competence of the very persons who can remove or suspend its members. Equally relevant is the impression
that would be given to the public if the rule were otherwise. A complainant with a grievance against a high-ranking
official of the Executive, who appears to enjoy the President’s favor, would be discouraged from approaching the
Ombudsman with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption and
bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external
check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her
Deputies.
While the preceding discussion already suffices to address this concern, it should be added that this concern
stands on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the
Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of
Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be
questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and
employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less
questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same
time, the Court remains consistent with its established rulings - that the independence granted to the
Constitutional Commissions bars any undue interference from either the Executive or Congress – and is in full
accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution, 53 Congress is empowered to determine the modes of removal
from office of all public officers and employees except the President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman, who are all impeachable
officials.
The intent of the framers of the Constitution in providing that "[a]ll other public officers and employees may be
removed from office as provided by law, but not by impeachment" in the second sentence of Section 2, Article XI
is to prevent Congress from extending the more stringent rule of "removal only by impeachment" to favored public
officers.54 Understandably so, impeachment is the most difficult and cumbersome mode of removing a public
officer from office. It is, by its nature, a sui generis politico-legal process 55 that signals the need for a judicious and
careful handling as shown by the process required to initiate the proceeding; 56 the one-year limitation or bar for its
initiation;57 the limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt. 60 All these argue against the extension of this
removal mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems an impeachment proceeding
entails, thus justifying its limited application only to the officials occupying the highest echelons of responsibility in
our government. To name a few, some of the negative practical effects of impeachment are: it stalls legislative
work; it is an expensive process in terms of the cost of prosecution alone; and, more importantly, it is inherently
divisive of the nation.61 Thus, in a cost-benefit analysis of adopting impeachment as a mechanism, limiting
Congress’ power to otherwise legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should be read.
Contrary to the implied view of the minority, in no way can this provision be regarded as blanket authority for
Congress to provide for any ground of removal it deems fit. While the manner and cause of removal are left to
congressional determination, this must still be consistent with constitutional guarantees and principles, namely:
the right to procedural and substantive due process; the constitutional guarantee of security of tenure; the
principle of separation of powers; and the principle of checks and balances. 62
In short, the authority granted by the Constitution to Congress to provide for the manner and cause of removal of
all other public officers and employees does not mean that Congress can ignore the basic principles and precepts
established by the Constitution.
In the same manner, the congressional determination of the identity of the disciplinary authority is not a blanket
authority for Congress to repose it on whomsoever Congress chooses without running afoul of the independence
enjoyed by the Office of the Ombudsman and without disrupting the delicate check and balance mechanism under
the Constitution. Properly viewed from this perspective, the core constitutional principle of independence is
observed and any possible absurdity resulting from a contrary interpretation is avoided. In other words, while the
Constitution itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle of
independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec 63 is apt:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is intended as a
measure of protection for the Deputy Ombudsman and Special Prosecutor – since these grounds are not intended
to cover all kinds of official wrongdoing and plain errors of judgment - this argument seriously overlooks the
erosion of the independence of the Office of the Ombudsman that it creates. The mere fact that a statutorily-
created sword of Damocles hangs over the Deputy Ombudsman’s head, by itself, opens up all the channels for
external pressures and influence of officialdom and partisan politics. The fear of external reprisal from the very
office he is to check for excesses and abuses defeats the very purpose of granting independence to the Office of
the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not conform to the high standard required in
determining whether a Deputy Ombudsman committed an impeachable offense) and that the President’s power of
removal is limited to specified grounds are dismally inadequate when balanced with the constitutional principle of
independence. The mere filing of an administrative case against the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in their suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the very same
ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its decision
finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust is
patently erroneous. The OP’s decision perfectly illustrates why the requirement of impeachment-grounds in
Section 8(2) of RA No. 6770 cannot be considered, even at a minimum, a measure of protection of the
independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The assailed
Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman himself,
and other documentary evidence gathered, this Office finds that the inordinate and unjustified delay in the
resolution of Captain Mendoza’s Motion for Reconsideration timely filed on 5 November 2009 xxx amounted to
gross neglect of duty and/or inefficiency in the performance of official duty. 64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration; 66
2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and make his
recommendation for the appropriate action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate superior, Dir.
Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order; 69
5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales endorsed the
draft order for the final approval of the Ombudsman. 70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were already pending
before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the slightest care, acting or omitting to
act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences insofar as other persons may be affected. In the case of public officials, there is
gross negligence when a breach of duty is flagrant and palpable. 71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case forwarded to him
within nine days. In finding Gonzales guilty, the OP 72 relied on Section 8, Rule III of Administrative Order No. 7 (or
the Rules of Procedure of the Office of the Ombudsman, series of 1990, as amended) in ruling that Gonzales
should have acted on Mendoza’s Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of the decision
or order by the party on the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest
of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall resolve the
same within five (5) days from the date of submission for resolution. [emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales since he is a
Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing Officer tasked with the
initial resolution of the motion. In Section 6 of Administrative Order No. 7 on the resolution of the case and
submission of the proposed decision, the period for resolving the case does not cover the period within which it
should be reviewed:
Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted for
resolution, the Hearing Officer shall submit a proposed decision containing his findings and recommendation for
the approval of the Ombudsman. Said proposed decision shall be reviewed by the Directors, Assistant
Ombudsmen and Deputy Ombudsmen concerned. With respect to low ranking public officials, the Deputy
Ombudsman concerned shall be the approving authority. Upon approval, copies thereof shall be served upon the
parties and the head of the office or agency of which the respondent is an official or employee for his information
and compliance with the appropriate directive contained therein. [italics and emphases supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five days, to
review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his subordinates to promptly act on Mendoza’s motion and
apprised the Tanodbayan of the urgency of resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases that involve
the potential loss of employment of many other public employees. We cannot conclusively state, as the OP
appears to suggest, that Mendoza’s case should have been prioritized over other similar cases.
The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a grossly
inordinate and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases" before, among others, quasi-
judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept. 76 Thus, the delay, if any, must be
measured in this objective constitutional sense. Unfortunately, because of the very statutory grounds relied upon
by the OP in dismissing Gonzales, the political and, perhaps, "practical" considerations got the better of what is
legal and constitutional.
The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their work. While
GIPO Garcia reviewed the case and drafted the order for more than three months, it is noteworthy that he had not
drafted the initial decision and, therefore, had to review the case for the first time. 77 Even the Ombudsman herself
could not be faulted for acting on a case within four months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the records,
research on the pertinent laws and jurisprudence, and exercise of legal judgment and discretion. If this Court rules
that these periods per se constitute gross neglect of duty, the Ombudsman’s constitutional mandate to prosecute
all the erring officials of this country would be subjected to an unreasonable and overwhelming constraint.
Similarly, if the Court rules that these periods per se constitute gross neglect of duty, then we must be prepared to
reconcile this with the established concept of the right of speedy disposition of cases – something the Court may
be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case endorsed to
the Office of the Ombudsman and by resolving it against Mendoza on the basis of the unverified complaint-
affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it were based
merely on the request of the alleged victim’s father. The Constitution empowers the Ombudsman and her
Deputies to act promptly on complaints filed in any form or manner against any public official or employee of the
government.78 This provision is echoed by Section 13 of RA No. 6770, 79 and by Section 3, Rule III of
Administrative Order No. 7, series of 1990, as amended. 80
Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the unverified affidavit
of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt on the part of Mendoza, et al.
was based on their admissions as well. Mendoza, et al. admitted that they had arrested Kalaw based on two traffic
violations and allowed him to stay the whole night until the following morning in the police precinct. The next
morning, Kalaw was allowed to leave the precinct despite his failure to show a valid license and based merely on
his promise to return with the proper documents.81 These admissions led Gonzales and his staff to conclude that
Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of traffic
violators would be to give them a ticket and to file a case, when appropriate. 82
Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the decision of the PNP-
IAS (which dismissed the complaint against Mendoza). To be sure, we cannot tie the hands of any judicial or
quasi-judicial body by ruling that it should always concur with the decisions of other judicial or quasi-judicial bodies
which may have also taken cognizance of the case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has specifically granted to this office and would nullify the
very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by the OP
necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be held liable for our own
misdeeds; we can be made to account only for lapses in our responsibilities. It is notable that of all the officers, it
was Gonzales who took the least time — nine days — followed by Cecilio, who took 21 days; Garcia — the writer
of the draft — took less than four months, and the Ombudsman, less than four months until the kidnapping
incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does not preclude
the Ombudsman from looking into any other possible administrative liability of Gonzales under existing Civil
Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the
time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the
independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special
Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770
should equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in
jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman, known as
the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand
Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive authority" to
conduct preliminary investigation and to prosecute cases that are within the jurisdiction of the
Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control and supervision over
the Special Prosecutor.88 Consistent with this grant of power, the law also authorized the Secretary of Justice to
appoint or detail to the Office of the CSP "any officer or employee of Department of Justice or any Bureau or
Office under the executive supervision thereof" to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away from it by the
Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the Chief Special Prosecutor"
under the Tanodbayan’s control,90 with the exclusive authority to conduct preliminary investigation and prosecute
all cases cognizable by the Sandiganbayan. Unlike the earlier decree, the law also empowered the Tanodbayan
to appoint Special Investigators and subordinate personnel and/or to detail to the Office of the CSP any public
officer or employees who "shall be under the supervision and control of the Chief Special Prosecutor." 91 In 1979,
PD No. 1630 further amended the earlier decrees by transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987 Constitution, an
"independent Office of the Ombudsman" is created.93 The existing Tanodbayan is made the Office of the Special
Prosecutor, "who shall continue to function and exercise its powers as now 94 or hereafter may be provided by
law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and employees of the
Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution provides that the Ombudsman may
exercise "such other powers or perform such functions or duties as may be provided by law." Pursuant to this
constitutional command, Congress enacted RA No. 6770 to provide for the functional and structural organization
of the Office of the Ombudsman and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the Ombudsman,
including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special
Prosecutor as well. In terms of appointment, the law gave the President the authority to appoint the Ombudsman,
his Deputies and the Special Prosecutor, from a list of nominees prepared by the Judicial and Bar Council. In case
of vacancy in these positions, the law requires that the vacancy be filled within three (3) months from
occurrence.97
The law also imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and qualifications,100 rank and salary are
likewise the same.101 The requirement on disclosure102 is imposed on the Ombudsman, the Deputies and the
Special Prosecutor as well. In case of vacancy in the Office of the Ombudsman, the Overall Deputy cannot
assume the role of Acting Ombudsman; the President may designate any of the Deputies or the Special
Prosecutor as Acting Ombudsman.103 The power of the Ombudsman and his or her deputies to require other
government agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104
Given this legislative history, the present overall legal structure of the Office of the Ombudsman, both under the
1987 Constitution and RA No. 6770, militates against an interpretation that would insulate the Deputy
Ombudsman from the disciplinary authority of the OP and yet expose the Special Prosecutor to the same ills that
a grant of independence to the Office of the Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside
from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the
Ombudsman and by granting the Ombudsman control and supervision over that office. 105 This power of control
and supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special
Prosecutor as he/she may deem fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by no
means an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of
his/her duties, which include investigation and prosecution of officials in the Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal cases within the
jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking executive officials. For
emphasis, subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter
egos and officials in the Executive Department are subject to the prosecutorial authority of the Special Prosecutor,
would seriously place the independence of the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of
the Ombudsman, the role it performs as an organic component of that Office militates against a differential
treatment between the Ombudsman’s Deputies, on one hand, and the Special Prosecutor himself, on the other.
What is true for the Ombudsman must be equally true, not only for her Deputies but, also for other lesser officials
of that Office who act directly as agents of the Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom, the Office of
the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is, in fact, separate and
distinct from the latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that the intent of
the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the
President. Xxx
In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth
known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or
hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this
Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it other powers, except those powers conferred by the
Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13,
Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as
may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special
Prosecutor under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the
Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy
the same grant of independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its September 4, 2012
Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA No.
6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation
of the independence of the Office of the Ombudsman.
However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770
insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally
within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the
Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL. This
ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is
without prejudice to the power of the Ombudsman to conduct an administrative investigation, if warranted, into the
possible administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules
and regulations.
SO ORDERED.
Case no. 2:
G.R. No. 232131
REY NATHANIEL C. IFURUNG, Petitioner
vs
HON. CONCHITA C. CARPIO MORALES JARDELEZA, in her capacity as the Ombudsman, CAGUIOA, HON.
MELCHOR ARTHUR H. MARTIRES, CARANDANG, HON. GERARD ABETO TIJAM, MOSQUERA, HON. PAUL
ELMER M. REYES, and CLEMENTE, HON. RODOLFO M. GESMUNDO, JJ. ELMAN, HON. CYRIL ENGUERRA
RAMOS in their capacities as Deputies Ombudsman, and THE OFFICE OF THE OMBUDSMAN, Respondents
DECISION
MARTIRES, J.:
Through this Petition for Certiorari and Prohibition, petitioner Rey Nathaniel C. Ifurung (petitioner), in propria
persona, seeks a declaration from the Court that: (a) Section (Sec.) 8(3) in relation to Sec. 7 of Republic Act
(R.A.) No. 6770, also known as the Ombudsman Act of 1989, is unconstitutional for being an outright
transgression of Sec. 11, in relation to Secs. 8 and 10 of Article (Art.) XI of the 1987 Constitution; and (b) all
individual respondents as de facto Ombudsman and Deputies Ombudsman, respectively, and all these positions
are vacant.1
The Petition
Petitioner, who claims to be a taxpayer, a concerned Filipino citizen, and a member of the Bar, invokes the
jurisprudence laid down by the Court in Funa v. Villar, 2 in asserting that he has locus standi to file the instant
petition. He avers that he is seeking the correction of a recurring statutory wrong and a declaration from the Court
that the positions held by the respondents are vacant. 3
Respondents are the incumbent officials of the Office of the Ombudsman, viz: Conchita Carpio Morales,
Ombudsman (Ombudsman Morales); Melchor Arthur H. Carandang, Overall Deputy Ombudsman; Gerard Abeto
Mosquera, Deputy Ombudsman for Luzon; Paul Elmer M. Clemente as Deputy Ombudsman for Visayas; Rodolfo
M. Elman, Deputy Ombudsman for Mindanao; and Cyril Enguerra Ramos, Deputy Ombudsman for the Military. 4
Petitioner maintains that the constitutional issue raised in his petition is of transcendental importance since this
Court's ruling will finally determine the correct term and tenure of the Ombudsman and his deputies and settle the
matter as to the constitutionality of Sec. 8(3) of R.A. No. 6770. He alleges that Sec. 8(3), in relation to Sec. 7 of
R.A. No. 6770, which provides that in case of a vacancy at the Office of the Ombudsman due to death,
resignation, removal or permanent disability of the incumbent Ombudsman and his deputies, the newly appointed
Ombudsman and his deputies shall be appointed to a full term of seven (7) years, is constitutionally infirm as it
contravenes Sec. 11 in relation to Secs. 8 and 10 of Art. XI of the 1987 Constitution. He avers that like all
constitutionally created positions, i.e., President, Vice-President, Senators, Members of the House of
Representatives and Members of the Civil Service Commission (CSC), the Commission on Elections
(COMELEC), and the Commission on Audit (COA), the successor to the positions of the Ombudsman and
deputies should serve only the unexpired term of the predecessor. Hence, petitioner insists that the incumbent
Ombudsman and deputies have been overstaying in their present positions for more than two years considering
that their terms have expired on 1 February 2015. "To allow them to stay in the said positions one day longer
constitutes a continuing affront to the 1987 Constitution, unduly clips presidential prerogatives, and deprives the
nation of the services of legitimate Ombudsman and Deputies Ombudsman." 5
To fortify his position, petitioner states that the intent of the framers of the 1987 Constitution during its 26 July
1986 discussion was to constitutionalize the Office of the Ombudsman, i.e., by granting it autonomy and
independence the same as and equal to those of the other constitutionally created offices and positions. That in
the process of constitutionalizing the Office of the Ombudsman, the framers ensured its stature and clout as a
constitutional body like the COMELEC, the COA, the CSC, and the Commission on Human Rights (CHR), viz: by
creating the office and giving it fiscal autonomy and independence thus making it a constitutionally created office;
by providing the qualifications, disqualifications, manner of appointment, cessation, and removal from office; and
by specifying the salary, positional rank, term of office, powers, functions, and duties thereof; thereby making the
Ombudsman and the deputies constitutionally created positions. He claims that the intention of the framers was
evident in Secs. 5 to 14, Art. XI of the 1987 Constitution. 6
According to the petitioner, with the effectivity of the 1987 Constitution, President Corazon C. Aquino (President
Aquino), on 24 July 1987, issued pursuant to Sec. 6, 7 Art. XVIII of the 1987 Constitution, Executive Order (E.O.)
No. 2438 creating the Office of the Ombudsman. On 17 November 1989, R.A. No. 6770 was approved.
Considering that the intent of the framers of the Constitution was that the position of the Ombudsman and the
deputies shall have the same status as the three constitutional commissions, the limitations as to the latter's term
of office shall likewise apply to the Ombudsman and the deputies. Hence, petitioner maintains that the grant of a
full term to an Ombudsman's successor, when the vacancy in the office is for a cause other than the expiration of
term, is an outright nonobservance of the intent of the framers and Sec. 11, Art. XI of the 1987 Constitution. 9
Petitioner insists that in Gaminde v. COA (Gaminde), 10 the Court en banc has determined that the starting point of
the terms of office of the first appointees to the constitutional commissions is uniformly set on 2 February 1987.
He maintains as regards the appointment of Conrado M. Vasquez as first Ombudsman in May 1988, the seven-
year term which was supposed to start on 2 February 1987 and culminate seven (7) years thereafter, was not
complied with.11
The petitioner presented the following table:12
OMBUDSMAN 7-YEAR TERM ACTUAL DE FACTO CESSATION OF
 TENURE SERVICE SERVICE of seven years could effectively deprive an incoming President the power and opportunity to appoint an
Ombudsman. Thus the term of the Ombudsman will be subject to political maneuverings such that the outgoing
1st President can divest the next President of the prerogative to appoint. If the unexpired term is the policy, every
Conrado M. 2 Feb. 1987 May 1988 2 Feb. 1994 Supposed President can appoint an Ombudsman.16
Vasquez to to to expiration of term Petitioner cites the ruling in Tañada v. Angara17 (Tañada) and Imbong v. Ochoa18 (Imbong) to justify his position
1 Feb. 1994 May 1995 May 1995 that he availed of the appropriate remedies of certiorari and prohibition in the instant case.19
Asserting that the present petition involves the resolution of a constitutional issue which affects the very fabric and
2nd 4 Aug. 1995 2 Feb. 2001 Supposed
integrity of the Office of the Ombudsman, petitioner pleads for the exemption from the observance of the rule on
Aniano A. 2 Feb. 1994 to to expiration of term
hierarchy of courts in view of the transcendental importance of this constitutional issue. 20
Desierto to 3 Aug. 2002 3 Aug. 2002
1 Feb. 2001 The Comment of the Respondents
Respondents, through the Office of the Solicitor General (OSG), claim that petitioner failed to appreciate the verba
3rd legis approach to constitutional construction; and that, instead, petitioner resorted to an interpretation that was not
Simeon V. 2 Feb. 2001 10 Oct. 2002 Not applicable Resignation only self-serving but also devoid of basis and reason. 21
Marcelo to to Respondents aver that Sec. 11, Art. XI of the 1987 Constitution is clear that the term of the Ombudsman and the
1 Feb. 2008 Nov. 2005 Deputies shall be seven years without reappointment without distinction on the cause of filling the vacancy.
According to the respondents, to follow petitioner's interpretation would lead to a distinction not found in the law
Ma. Merceditas 1 Dec. 2005 Not applicable Not applicable between: (1) the term of the Ombudsman and the deputies who succeeded a predecessor who finished a full term
Navarro-Gutierrez to of seven years; and (2) the term of the Ombudsman and the deputies who merely succeeded the predecessor
1 Feb. 2008 who did not finish the full term of seven years. 22
Respondents state that unlike Sec. 11, Art. XI of the 1987 Constitution, the term of office of the constitutionally
4th
created offices provides that a successor who is appointed to any vacancy shall only serve the unexpired term of
Ma. Merceditas 2 Feb. 2008 2 Feb. 2008 2 Feb. 2008 Resignation
the successor.23
Navarro-Gutierrez to to to
To disprove the petitioner's assertion that the distinction as to the term of office of constitutionally created offices
1 Feb. 2015 6 May 2011 6 May 2011
applies to the Ombudsman and his Deputies, respondents explain that there are other offices created by the
Conchita Carpio
Constitution, viz: Supreme Court, Judicial and Bar Council (JBC), Senate Electoral Tribunal (SET), House of
Morales 25 July 2011 Not applicable Not applicable
Representatives Electoral Tribunal (HRET), judges of lower courts, elective local officials, and the CHR, among
to
others, where such distinction does not apply.24
1 Feb. 2015
Respondents allege that the deliberations of the framers of the Constitution reveal their intent to grant the
5th Ombudsman and his deputies the same rank and salary as the Chair and members of the Constitutional
Conchita Carpio 2 Feb. 2015 2 Feb. 2015 2 Feb. 2015 Not applicable Commissions but not by the staggered term. 25
Morales to to to Respondents contend that the ruling in Gaminde where the rotational system of appointment of the CSC
1 Feb. 2022 present present chairperson and the commissioners was crucial to the determination of the start of Commissioner Gaminde's term,
Petitioner states that it can be gleaned from the above data that the explicit seven-year term for the Ombudsman does not apply to the Office of the Ombudsman where there are no seven-five-three-year rotational intervals for
and the deputies has neither been followed nor complied with. 13 the appointment. Moreover, the Office of the Ombudsman is not a commission composed of a chairperson and
Petitioner claims that Ombudsman Morales should have ceased to hold office on 1 February 2015 considering several commissioners; thus, whether the term of the first Ombudsman began on 2 February 1987 would be
that the unexpired term of the supposed fourth seven-year term ended on that date; thus, Ombudsman Morales immaterial because the succeeding Ombudsman shall have a fresh seven-year term. 26
has been holding the position in a de facto capacity since 2 February 2015 up to the present. This observation, Respondents maintain that the present petition seeks to unseat respondents from public office; thus,
petitioner claims, holds true with the other respondent deputies. 14 the Tañada and Imbong rulings on which petitioner anchors his petition would not apply since these cases do not
Petitioner posits that the "recurrence of this cycle of noncompliance and nonobservance of the intent of the involve an attack on a public officer's title. Moreover, the present petition, which involves a collateral attack on the
framers and the explicit provision of the 1987 Philippine Constitution is an outright affront to the fundamental law respondents' title, should be dismissed for being an improper remedy. Respondents emphasize that the proper
of the land and, if it remains unchecked, will create a cycle of non-compliance with and nonobservance of what remedy would have been a petition for quo warranto under Rule 66 of the Rules of Court to be initiated by the
the Constitution provides."15 Solicitor General or public prosecutor when directed by the President of the Philippines. 27
Petitioner argues that the Office of the Ombudsman is not sui generis, thus, what applies and holds true for all the ISSUES
other constitutionally created offices and positions should also apply to this office. The Ombudsman cannot be an I.
exception to the rule set by the 1987 Constitution, i.e., to serve for the unexpired term, so much so that each Whether Section 8(3) of R.A. No. 6770 is unconstitutional for being violative of Section 11 in relation to Sections 8
uncompleted term creates a fresh term for the appointed Ombudsman. Petitioner speculates that such fresh term and 10, Article XI of the 1987 Philippine constitution and applicable jurisprudence.
 II.
Whether the instant petition is the proper remedy.
III.
Whether this Honorable Court has jurisdiction.
OUR RULING
To properly resolve this petition, it would be better to dwell foremost on the issue of whether petitioner has availed
of the proper vehicle to obtain the relief he pleads the Court.
A petition for certiorari is the
proper remedy to challenge the
constitutionality of Sec. 8(3) of
R.A. No. 6770.
To justify his claim that a petition for certiorari and prohibition is the proper remedy to assail the validity of Sec.
8(3) of R.A. No. 6770, petitioner cites the ruling in Tañada and Imbong that "certiorari, prohibition, and mandamus
are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no plain, speedy, or adequate remedy in the ordinary course of law."
To counter petitioner's justification and to prove that quo warranto was the proper remedy in this case,
respondents cite Topacio v. Ong.28
Respondents failed to consider that the factual antecedents in Topacio are not on four-square with the present
petition. In that case, Ferdinand Topacio's petition for certiorari and prohibition sought, in the main, to prevent
Justice Gregory Ong from further exercising the powers, duties, and responsibilities of a Sandiganbayan
Associate Justice. Topacio chiefly moored his petition on the ground that Ong did not qualify to be appointed as
an Associate Justice of the Sandiganbayan on the basis of his citizenship, i.e., whether gauged from his birth
certificate which indicates him to be a Chinese citizen or against his bar records bearing out his status as a
naturalized Filipino citizen. Simply put, the petition principally involved a review of Ong's qualification for
appointment as Associate Justice of the Sandiganbayan which violated, according to Topacio, Sec. 7, 29 Art. VIII of
the 1987 Constitution requiring that the members of the Supreme Court or any collegiate court be natural-born
citizens of the Philippines. Thus, the Court held:
While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo
warranto proceeding with respect to Ong, for it effectively seeks to declare null and void his appointment as an
Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one
for certiorari and prohibition, petitioner even adverts to a quo warranto aspect of the petition.
Being a collateral attack on a public officer's title, the present petition for certiorari and prohibition must be
dismissed.30
On the one hand, petitioner prefaced his petition as follows:
This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to declare the following:
(a) Section 8(3) in relation to Section 7 of Republic Act No. 6770, also known as the
Ombudsman Act of 1989, as unconstitutional for being an outright transgression of Section 11
in relation to Sections 8 and 10 of Article XI of the 1987 Constitution, and
(b) All individual respondents as de facto Ombudsman and Deputies Ombudsman,
respectively, and all their positions vacant.
This Honorable Court's jurisdiction over cases involving the constitutionality of laws pursuant to Sections 4(2) and
5 of Article VIII of the 1987 Constitution is being respectfully invoked in view of the transcendental importance of
the instant matter.31
The pertinent provisions of Art. XI of the 1987 Constitution which petitioner avers was transgressed by Sec. 8(3)
of R.A. No. 6770 are as follows:
Sec. 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their
appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar,
and must not have been candidates for any elective office in the immediately preceding election. The
Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines.
xxxx
Sec. 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the
Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their
term of office.
Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They
shall not be qualified to run for any office in the election immediately succeeding their cessation from office.
Clear from his petition was that the petitioner beseeches the Court for a declaration primarily as to the
unconstitutionality of Sec. 8(3) in relation to Sec. 7 of R.A. No. 6770, and as a consequence thereof, a
pronouncement that the incumbent Ombudsman and the deputies are de facto  officers and whose offices are
vacant. The petition does not task the Court to scrutinize the qualification of the respondents to hold office as
Ombudsman and deputies but rather to determine the constitutionality of Sec. 8(3) of R.A. No. 6770 in so far as
their term of office is concerned.
In contrast with Topacio where the very issue involved was the qualification to office of Ong, the present petition
attacks the validity of a law, which petitioner claims has transgressed Sec. 11 in relation to Secs. 10 and 11, Art.
XI of the 1987 Constitution. Petitioner points out that the legislature went beyond the parameters of these
constitutional provisions when it crafted Sec. 8(3) of R.A. No. 6770, 32 and that there is no other plain, speedy, and
adequate remedy in the ordinary course of law that can correct the long-running, pervasive, and continuous
violation of Sec. 11 in relation to Secs. 8 and 10, Art. XI of the 1987 Constitution and the applicable
jurisprudence."33
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but also "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."34 Its expanded power of review provides:
Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 35
Fundamental is the rule that grave abuse of discretion arises when a lower court or tribunal patently violates the
Constitution, the law, or existing jurisprudence.36 We have already ruled that petitions for certiorari and prohibition
filed before the Court "are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be determined under the
Constitution," and explained that "[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions, but also to set right, undo(,and restrain any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not
exercise judicial, quasi-judicial or ministerial functions. "37
"Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather
than political. x x x. The duty to adjudicate remains to assure that the supremacy of the Constitution is
upheld."38 The Court however, does not have unrestrained authority to rule on just any and every claim of
constitutional violation. Hence, the legal teaching is that the power of judicial review is limited by four exacting
requisites, viz: (a) there must be an actual case or controversy; (b) the petitioners must possess locus standi; (c)
the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality
must be the lis mota of the case."39
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible
of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. 40 Closely linked to this
requirement is that the question must be ripe for adjudication, i.e., when the act being challenged has had a direct
adverse effect on the individual or entity challenging it. 41 It is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to itself as a result of the challenged action. 42
The Court holds that the present petition involves an actual case or controversy and that the same is ripe for
judicial determination. It will be noted that, granting there was merit to the position raised by the petitioner that
Sec. 8(3) of R.A. No. 6770 is unconstitutional, the incumbent Ombudsman and deputies are de facto officers who
have overstayed in office since 2 February 2015. Of prime consideration, too, if petitioner's position is correct, is
the alleged pervasive noncompliance and non-observance of the constitution relative to the seven-year term of
office of the Ombudsman and the deputies, the principles of which, albeit relevant to the constitutional
commissions, have been settled in Gaminde. It should likewise be taken into account, granting that petitioner's
challenge to Sec. 8(3) of R.A. No. 6770 was valid and legal, that there are continuing illegal disbursements of
public funds to pay the salaries of the de facto Ombudsman and deputies. From these considerations, it cannot be
gainsaid that there is indeed a justiciable controversy involving an alleged serious infringement of the fundamental
law, and which the Court is duty bound to resolve.
Locus standi is defined as follows:
A personal and substantial interest in the case such that the party has sustained or will sustain a direct injury as a
result of the governmental act that is being challenged. The term "interest" means a material interest, an interest
in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions. 43
Jurisprudence dictates that a party challenging the constitutionality of a law, act or statute must show "not only
that the law is invalid, but also that he has sustained or is in immediate or imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way." 44 There
is likewise the teaching that locus standi is merely a matter of procedure and that, in some cases, suits are not
brought by parties who have been personally injured by the operation of a law or any other government act, but by
concerned citizens, taxpayers, or voters who actually sue in the public interest. 45 This liberal stance has been
exemplified in Funa v. Villar, 46 viz:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a "direct injury" as a
result of a government action, or have a "material interest in the issue affected by the challenged official act.
However, the Court has time and again acted liberally on the locus standi requirements and has accorded certain
individuals, not otherwise directly injured, or with material interest affected, by a Government act, standing to sue
provided a constitutional issue of critical significance is at stake. The rule on locus standi is after all a mere
procedural technicality in relation to which the Court, in a catena of cases involving a subject of transcendental
import, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest, albeit they may not have been personally injured by the
operation of a law or any other government act. In David, the Court laid out the bare minimum norm before the so-
called "non-traditional suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of transcendental importance which
must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives as
legislators.47
Petitioner, who claims to be a taxpayer, asserts that there has been illegal disbursement of public funds in paying
the salaries of the respondents. As a concerned citizen, he avers that the issues in this petition are of
transcendental importance.
The Court has jurisdiction
over the instant petition.
In arguing that the Court should exercise its power of judicial review and assume jurisdiction over his case,
petitioner pleads this Court to consider the principal issue raised in his petition to be one of transcendental
importance, such that the principle of hierarchy of courts, which he perceives as a possible obstacle to his cause,
may no longer apply or should be dispensed with. To this end, he pleads and outlines the following arguments:
41. This Honorable Court's percipient wisdom is exigent and urgently needed in order to mark a watershed in the
Office of the Ombudsman on account of the following, viz:
i. First. Direct resort to this Honorable Court is allowed because there is a genuine issue of
constitutionality which must be immediately addressed. In the instant case, Section 8 (3) of
R.A. No. 6770, if not declared unconstitutional, will continue to contravene Section 11 in
relation to Sections 8 and 10, Article XI of the 1987 Philippine Constitution, and applicable
jurisprudence.
ii. Second. The issue raised herein is of transcendental importance. In the instant case, there
has been a pervasive non-compliance with the seven (7) year term of the Ombudsman. The
decision of this Honorable Court in the instant case will, in the manner of Gaminde, provide for
the correct term and tenure of succeeding Ombudsmen.
iii. Third. The constitutional issue raised in this case is better decided by this Honorable Court
which can rule with finality as to the constitutionality of Section 8 (3) of R.A. No. 6770.
iv. Fourth. The time element involved in the instant case cannot be ignored. Respondent
Carpio-Morales has been holding the position of Ombudsman in a de facto capacity for more
than two (2) years already. The vacancy and the appointment of a new Ombudsman is now
imperative.
v. Fifth. The instant petition involves a constitutional organ. The Office of the Ombudsman is a
constitutional office, hence, in the words of The Diocese of Bacolod, 48 "a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided
accordingly in the future."
vi. Sixth. There is no other plain, speedy and adequate remedy in the ordinary course of law
that can correct the long running and recurring, pervasive and continuous violation of Section
11 in relation to Sections 8 and 10, Article XI of the 1987 Philippine Constitution, and
applicable jurisprudence.
vii. Seventh. This petition directly puts into question the status and legitimacy of respondent
Carpio-Morales as Ombudsman and her deputies' continued service as such considering that,
pursuant to Section 11 in relation to Sections 8 and 10, Article XI of the 1987 Philippine
Constitution, and applicable jurisprudence, her term already expired on 2 February 2015. 49
Interestingly, the OSG hardly addressed these points in its Comment and Memorandum. Nowhere did the OSG
counter petitioner's claim that the principal issue he raised is of such transcendental importance that his case may
escape the application of the principle of the hierarchy of courts.
The Court has explained the necessity of the application of the hierarchy of courts in Bañez, Jr. v. Concepcion:50
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is
not to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from
having to deal with causes that are also well within the competence of the lower courts, and thus leave time to the
Court to deal with the more fundamental and more essential tasks that the Constitution has assigned to it. The
Court may act on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when absolutely
necessary or when serious and important reasons exist to justify an exception to the policy. 51
However, the doctrine of hierarchy of courts is not an iron-clad rule as it in fact admits the jurisprudentially
established exceptions thereto, viz: (a) a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct resort to this court includes availing
of the remedies of certiorari and prohibition to assail the constitutionality of actions of both legislative and
executive branches of the government; (b) when the issues involved are of transcendental importance; (c) cases
of first impression warrant a direct resort to this court. In cases of first impression, no jurisprudence yet exists that
will guide the lower courts on this matter; (d) the constitutional issues raised are better decided by this court; (e)
the time element; (f) the filed petition reviews the act of a constitutional organ; (g) petitioners have no other plain,
speedy, and adequate remedy in the ordinary course of law; and (h) the petition includes questions that are
dictated by public welfare and the advancement of public policy, or demanded by the broader interest of justice, or
the orders complained of were found to be patent nullities, or the appeal was considered as clearly an
inappropriate remedy.52 Petitioner has amplified in his petition these exceptions to justify a relaxation on the
adherence to the doctrine of hierarchy of courts.
Before proceeding any further, the Court observes that petitioner has named only the incumbent Ombudsman and
the deputies as respondents in his petition although the present controversy deals with the constitutionality of a
legislative act and, corollary thereto, the act of the President in appointing the respondents allegedly beyond the
seven-year term as prescribed by the constitution and explicated through our jurisprudential declarations. The
Court hastens to add that it was equally raised in this petition that there were alleged illegal disbursement of public
funds as a result of the pervasive noncompliance with the constitutional requirement on the seven-year term of
office of the Ombudsman and the deputies; yet, the petitioner failed to include the Department of Budget and
Management (DBM) as a respondent.
Notwithstanding these observations, the Court notes that respondents' present counsel, the OSG, would have
likewise represented the legislative body, the Office of the President, or the DBM had they been equally named as
respondents in this petition. Bearing in mind that the arguments of the OSG relative to the constitutionality of Sec.
8(3) of R.A. No. 6770 would have equally applied to these persons had they been included as respondents in this
petition and that the Court has already determined that it shall take cognizance of this case pursuant to its
expanded power of review, we shall then set aside our misgivings on the failure of the petitioner to include the
other respondents in his petition.
The History of the Office of the
Ombudsman
The word "ombudsman" originated from Sweden when in 1809 it established the position
of Justlieombudsman with the purpose of overseeing government administration. The title loosely translates as
"citizen's defender" or "representative of the people." 53 The Ombudsman was primarily tasked with receiving
complaints from persons aggrieved by administrative action or inaction, conducting investigation thereon, and
making recommendations to the appropriate administrative agency based on his findings. The Ombudsman relied
mainly on the power of persuasion and the high prestige of the office to effect his recommendations. 54
In the Philippines, the Office of the Ombudsman considers the Permanent Commission in the Revolutionary
Government as its precursor. The Permanent Commission, created pursuant to Art. 21 55 of the Decree of 23 June
1898, was designated to decide, on appeal, all criminal cases resolved by the provincial councils involving the
department secretaries and the provincial and municipal officials. 56
The Permanent Commission continued its existence after the ratification of the Constitution of 1899, popularly
known as the Malolos Constitution. Under No. 1, Art. 55 of said Constitution, one of the powers of the Commission
was to "declare if there is sufficient cause to proceed against the President of the Republic, the Representatives,
Department Secretaries, the Chief Justice of the Supreme Court and the Solicitor General in the cases provided
by the Constitution."57
In May 1950, President Elpidio R. Quirino created the Integrity Board charged with receiving complaints against
public officials for acts of corruption, dereliction of duty, and irregularity in office, and conducting a thorough
investigation of these complaints. 58
On 30 December 1953, President Ramon Magsaysay issued Executive Order (E.O.) No. 1 creating the
Presidential Complaints and Action Commission for the purpose of expediting actions on all complaints against
the manner of various officials and personnel of the different executive departments, bureaus, offices, agencies,
instrumentalities, and government-owned or -controlled corporations.
On 15 July 1958, President Carlos P. Garcia (President Garcia) issued E.O. No. 306 creating the Presidential
Committee on Administration Performance Efficiency (PCAPE). The PCAPE was to be headed by a Technical
Assistant designated by the President, and who shall be known as the Chairman.
On 7 March 1960, President Garcia issued E.O. No. 382 which granted to PCAPE all the powers of an
investigating committee under Sects. 7159 and 58060 of the Revised Administrative Code,61 including the power to
summon witnesses, administer oaths, and take testimony or evidence relevant to the investigation. However, on
29 December 1961, President Garcia issued E.O. No. 456 abolishing the PCAPE.
When President Diosdado P. Macapagal (President Macapagal) assumed office on 30 December 1961, he issued
E.O. No. 1 re-creating the PCAPE for the purpose of achieving greater efficiency, competence, and dedication in
the administration of government and ensuring the prompt and faithful performance of assigned duties, functions,
and directives by the implementing government offices, agencies, and instrumentalities. The PCAPE was to be
headed by a technical assistant designated by the President, and who shall be known as the Presidential
Executive Assistant and be a member of the Cabinet.
On 18 January 1962, President Macapagal issued E.O. No. 4 which gave life to the Presidential Anti-Graft
Committee (PAGC) to be composed of such personnel as the President may designate from time to time. The
PAGC had the following functions:
1. To inquire into, and take measures to prevent, the occurrence of graft and of violations of R.A. No. 3019 62 in
such departments, bureaus, offices, agencies, or instrumentalities, including government-owned or - controlled
corporations, as the President may determine, under the supervision of the Department Head concerned; and
2. In such departments, bureau, offices, agencies, or instrumentalities, including government-owned or -controlled
corporations, as the President may determine, to implement and enforce R.A. No. 1379 63 by inquiring into,
investigating, determining, and verifying any and all unlawfully acquired properties of the officials and employees
thereof, and obtaining the needed evidence to establish such unlawful acquisition of property or other forms of
wealth acquired by them while in public office.
By virtue of E.O. No. 4 issued on 7 January 1966, President Ferdinand E. Marcos (President Marcos) created the
Presidential Agency on Reforms and Government Operations (PARGO) which shall be directly under and
responsible only to the President of the Philippines. The PARGO shall be headed by the Assistant to the
President, and is a member of the Cabinet.
In 1969, R.A. No. 602864 creating the Office of the Citizens Counselor, was passed. Its pertinent provisions read:
Sec. 3. To carry out the purposes of this Act, there is hereby created an office to be known as the Office of the
citizen's Counselor to which the President, with the consent of the Commission on Appointments, shall appoint an
officer to be known as the Citizen's counselor, hereinafter referred to as the Counselor. The Citizen's Counselor
shall be assisted by two (2) Associate Counselors, who shall be appointed by the President of the Philippines with
the consent of the Commission on Appointments.
Sec. 4. No person may be appointed Counselor unless he has been a member of the Supreme Court or of the
Court of Appeals.
No person may be appointed Associate Counselor unless he is a citizen of the Philippines, at least forty years of
age and has for ten (10) years or more been a judge of a court of record or engaged actively in the practice of law.
No person may serve as Counselor or Associate Counselor (a) within two (2) years of the last day on which he
served as a member of Congress; (b)while he is a candidate for or holds any other public office; or (c) while he is
actively engaged in any other calling for profit or reward.
No Counselor or Associate Counselor shall be a candidate for any public office within two (2) years from the last
day on which he served as Counselor or Associate Counselor.
In 1970, President Marcos created a Complaints and Investigation Office and in the following year, the
Presidential Administrative Assistance Committee.65
In view of the failure of these offices to accomplish the noble purpose for which they were created, the framers of
the 1973 Constitution saw the need to constitutionalize the office of the Ombudsman, to be known as the
Tanodbayan, in order to give it political independence and adequate powers to enforce its
recommendations.66 Thus, the Tanodbayan was vested with the power to 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 cases before the proper court or body. 67
In the exercise of his power under Proclamation No. 1081, 68 President Marcos issued on 11 June 1978, P.D. No.
1487 creating the Office of the Ombudsman to be known as the Tanodbayan. Pertinently, Sec. 6 thereof provides
for the term of office of the Tanodbayan and the deputies as follows:
Section 6. Term of Office.
(a) The Tanodbayan and his Deputies shall serve for a term of seven years without reappointment unless
removed by the President upon his determination that the Tanodbayan or any of his Deputies has become
incapacitated or has been guilty of neglect of duty, or misconduct.
(b) If the Office of Tanodbayan becomes vacant for any cause, the Senior Deputy Tanodbayan shall serve as
Acting Tanodbayan until the Tanodbayan shall have been appointed for a full term. (emphasis and underlining
supplied)
On 10 December 1978, President Marcos issued P.D. No. 160769 amending P.D. No. 1487. Significantly, the
above-quoted Sec. 6 of P.D. No. 1487 was reiterated in P.D. No. 1607.
On 18 July 1979, P.D. Nos. 1487 and 1607 were amended when President Marcos issued P.D. No.
163070 wherein Sec. 6 merely repeated the same section of its precursors as to the term of office of the
Tanodbayan and the deputies.
The independence of the Office of the Ombudsman was further reinforced under the 1987 Constitution. Sec. 7,
Art. XI of the 1987 Constitution provides that the existing Tanodbayan shall hereafter be known as the Office of
the Special Prosecutor which shall continue to function and exercise its powers as now or hereafter may be
provided by law, except those conferred on the Office of the Ombudsman created under the constitution. The
Ombudsman and the deputies shall have the rank of chairman and members, respectively, of the constitutional
commissions, and they shall receive the same salary, which shall not be decreased during their term of
office.71 The Ombudsman and his deputies shall serve for a term of seven years without reappointment. They shall
not be qualified to run for any office in the election immediately succeeding their cessation from office. 72
On 24 July 1987, President Aquino, in the exercise of her legislative powers pursuant to Sec. 6, Art. XVIII 73 of the
1987 Constitution, issued E.O. No. 24374 providing for the framework of the Office of the Ombudsman. Sec. 6 of
E.O. No. 243 is quoted:
Sec. 6. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the
Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their
term of office.
On 17 November 1989, the Eighth Congress approved R.A. No. 6770 75 providing for the functional and structural
organization of the Office of the Ombudsman. The pertinent provisions of R.A. No. 6770 read:
Section 7. Term of Office. — The Ombudsman and his Deputies, including the Special Prosecutor, shall serve for
a term of seven (7) years without reappointment.
Section 8. Removal; Filling of Vacancy. —
xxxx
(3) In case of vacancy in the Office of the Ombudsman due to death, resignation, removal or permanent disability
of the incumbent Ombudsman, the Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity
until a new Ombudsman shall have been appointed for a full term. In case the Overall Deputy cannot assume the
role of Acting Ombudsman, the President may designate any of the Deputies, or the Special Prosecutor, as Acting
Ombudsman. XXX (emphasis supplied)
Sec. 8(3) of R.A. No. 6770 is not
unconstitutional.
Before proceeding to the very core issue of this petition, the Court reminds itself of its ruling in Estrada v.
Sandiganbayan,76 viz:
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic
principle that a legislative measure is presumed to be in harmony with the Constitution. Courts invariably train
their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the
postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea
that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch
- the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.
Hence, in determining whether the acts of the legislature are in tune with the fundamental law, courts should
proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon we held that as long as there is some basis for the decision of the
court, the constitutionality of the challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into
the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed
domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the
statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution,
for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly
suffice. As tersely put by Justice Malcolm, "To doubt is to sustain.":77 x x x (emphasis supplied)
Petitioner anchors his challenge on the constitutionality of Sec. 8(3) of R.A. No. 6770 in the belief that because
the Ombudsman and the deputies have the same rank and salary as the chairman and the members of the
constitutional commissions, their term of office, following the Court's disquisition in Gaminde, shall always be
seven years counted from 2 February 1987 and seven years thereafter, and not the full term of seven years.
a. The Office of the Ombudsman is
not a constitutional commission.
It must be stressed that the Office of the Ombudsman is not a constitutional commission. Sec. 1, Art. IX of the
1987 Constitution specifically enumerates the independent constitutional commissions in the Philippines, viz: the
CSC, the COMELEC, and the COA. The common provisions among these three constitutional commissions are
as follows:
Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other office or
employment. Neither shall he engage in the practice of any profession or in the active management or control of
any business which, in any way, may be affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government,
any of its subdivisions, agencies, or instrumentalities, including government-owned or-controlled corporations or
their subsidiaries.
Section 3. The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased
during their tenure.
Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance with law.
Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be
automatically and regularly released.
Section 6. Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or
before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights.
Section 7. 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.
Section 8. Each Commission shall perform such other functions as may be provided by law. 78
A commission is defined as "a board or committee officially appointed and empowered to perform certain acts or
exercise certain jurisdiction of a public nature or relation. 79 Noteworthy, the CSC is composed of a chairman and
two commissioners;80 the COMELEC, a chairman and six commissioners;81 and the COA, a chairman and two
commissioners. Clearly provided in Sec. 7 is that these three constitutional commissions shall decide by a
majority vote of all its members any case or matter brought before it; thus, the commissions are collegial bodies
whose manner of working is characterized by a sharing of responsibility among the chairman and the
commissioners of the commission.
In contrast, the present Office of the Ombudsman, albeit composed of the Ombudsman to be known as
Tanodbayan, the Overall Deputy, the Deputy for Luzon, the Deputy for the Visayas, the Deputy for Mindanao, the
Deputy for the Military and Other Law Enforcement Office (MOLEO), and the Special Prosecutor, is not a collegial
body. The Ombudsman and the deputies do not resolve cases by a majority of all its members but rather are
confined within the sphere of their respective jurisdiction, i.e., the Deputy Ombudsman for Luzon, for cases
involving public officials and employees assigned in Luzon; the Deputy Ombudsman for Visayas, for those
assigned in Visayas; the Deputy Ombudsman for Mindanao, for those assigned in Mindanao; the Deputy
Ombudsman for MOLEO, for those assigned in the military and the police; and the Special Prosecutor, in the
conduct preliminary investigation and prosecution of criminal cases within the jurisdiction of the
Sandiganbayan. 82 The Overall Deputy, on the one hand, oversees and administers the operations of the different
offices under the Office of Ombudsman83 while the Ombudsman is the final approving authority on the disposition
of cases before the sectoral offices, i.e., Luzon, Visayas, Mindanao, MOLEO, and the Office of the Special
Prosecutor.
The undeniable intent of the framers
of the 1987 Constitution in Sec. 10,
Art. XI was to provide that the rank
and salary of the Ombudsman and
his deputies shall be the same as that
of the chairman and members,
respectively, of the constitutional
commissions.
Sec. 10, Art. XI of the 1987 Constitution reads:
SECTION 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of
the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their
term of office. (underlining supplied)
A reading on the deliberation of the framers of the 1987 Constitution relative to this provision is in order:
MR. REGALADO. X X X
On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who
will see to it that the Ombudsman will perform his duties because he is something like a guardian of the
government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people "quis
custodiet ipsos custodies," who will guard the guardians? I understand here that the Ombudsman who has the
rank of a chairman of a constitutional commission is also removable only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of." We know, for
instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is
not part of the judiciary. So I think we should clarify that also and read our discussions into the Record for
purposes of the Commission and the Committee.
MR. ROMULO. Yes. If I may just comment: the Ombudsman in this provision is a rank in itself really. That is how
we look at it. But for purposes of government classification and salary, we thought we have to give him a
recognizable or an existing rank as a point of reference more than anything else. 84
X X X X (emphasis supplied)
And
MR. DE LOS REYES. On lines 9 and 10 of page 4, it is stated:
MR. DE LOS REYES. On lines 9 and 10 of page 4, it is stated:
"A deputy of the Ombudsman shall have the same rank of a Commissioner of a Constitutional Commission and
his salary, which shall not be decreased during his term of office."
The sentence does not sound right.
Will the Committee agree that we adopt the same arrangement in the first sentence, so that the Deputy
Ombudsman shall have the same rank of a Commissioner and shall receive the same salary, which shall not be
decreased during his term of office?
THE PRESIDENT. So, what is the proposed amendment?
MR. DE LOS REYES. The proposed amendment is to delete the phrase "and his salary" on line 11 and instead, to
substitute it with the phrase: AND SHALL RECEIVE THE SAME SALARY.
THE PRESIDENT. Is that accepted?
xxxx
MR. MAAMBONG. Madam President, I am sorry if I am taking a dual role here but I have an anterior amendment
to the same Section 10.
On page 4, Section 10, I propose to simplify the paragraph by deleting the second sentence from lines 9 to 13.
The first sentence of Section 10, starting on line 6, should read: "The Ombudsman AND HIS DEPUTIES shall
have the rank of a Chairman AND MEMBERS OF A CONSTITUTIONAL COMMISSION and THEY shall receive
the salary, which shall not be decreased during THEIR term of office."
ΧΧΧΧ
MR. DE LOS REYES. Would Commissioner Maambong be agreeable to the insertion of the word
RESPECTIVELY?
MR. MAAMBONG. In what portion of the amendment?
MR. DE LOS REYES. "CHAIRMAN AND MEMBERS OF THE CONSTITUTIONAL COMMISSION,
RESPECTIVELY."
MR. MAAMBONG. The amendment is accepted.
xxxx
THE PRESIDENT, Is there any objection to the proposed amendment on Section 10? (Silence) The Chair hears
none; the amendment is approved.
MR. MAAMBONG. May I read the sentence for the record so that we will not be confused. Section 10 reads: "The
Ombudsman and his Deputies shall have the rank of a Chairman and members of a Constitutional Commission,
respectively, and they shall receive the same salary, which shall not be decreased during their term of office. 85 x x
xx
The discussion confirms that the intent of the framers of the Constitution in qualifying that the salary and rank of
the Ombudsman and the deputies shall be the same as that of the chairman and the members of the
constitutional commissions, was for the purpose of having a government classification as to salary and a point of
reference as to rank.
The words "salary" and "rank" were utilized by the framers in their ordinary and common usage. The word "salary"
is defined as "a reward or recompense for services performed. In a more limited sense, a fixed periodical
compensation paid for services rendered."86 The word "rank," on the other hand, "is often used to express
something different from office. It then becomes a designation or title of honor, dignity or distinction conferred
upon an officer in order to fix his relative position in reference to other officers in matters of privilege, precedence,
and sometimes of command, or by which to determine his pay and emoluments. 87 From these definitions, it is
obvious that neither the words "salary" nor "rank" even remotely includes the "term of office," which is the time
during which the officer may claim to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. 88
It is a well-settled principle of legal hermeneutics that the words of a statute will be interpreted in their natural,
plain and ordinary acceptation and signification, unless it is evident that the legislature, or in this case the framers
of the fundamental law, intended a technical or special legal meaning to those words. 89 As much as possible, the
words of the Constitution should be understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. 90 It is presumed that the framers and
the people meant what they said when they said it, and that this understanding was reflected in the Constitution
and understood by the people in the way it was meant to be understood when the fundamental law was ordained
and promulgated.91 Index animi sermo or "speech is the index of intention" and verba legis non est recedendum or
"from the words of a statute there should be no departure."" 92
It must be underscored that the framers of the Constitution in Sec. 10, Art. XI limited to rank and salary the
similarity between the Ombudsman and the deputies on one hand, and the chairman and the members of the
constitutional commission on the other. Applying the basic precept of statutory construction that the express
mention of one person, thing, act or consequence excludes all others as expressed in the familiar maxim
expressio unius est exclusio alterius,93 it is beyond cavil that pursuant to Sec. 10, Art. XI, it is only with reference
to "salary" and "rank" that the Ombudsman and his deputies should be similar to the chairman and the members
of the constitutional commission. Expressium facit cessare tacitum. What is expressed puts an end to what is
implied.94 Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters, 95 like "term of office" for "rank" and "salary" as insisted by the
petitioner. Time and time again, it has been repeatedly declared by this Court that where the law speaks in clear
and categorical language, there is no room for interpretation, only application. 96 It is best to keep in mind the
reminder from Holmes that "there is no canon against using common sense in construing laws as saying what it
obviously means."97
Moreover, the framers of the fundamental law could have easily and conveniently provided that the term of office
of the Ombudsman and his deputies shall be the same as that of the chairman and members of the constitutional
commissions if this was their obvious intent. Casus omissus pro omisso habendus est. A person, object or thing
omitted must have been omitted intentionally.98
c. The constitutional commissions
observe the regular rotational plan
which cannot apply to the Office of
the Ombudsman.
The regular rotation or cycle that is explicitly provided in Art. IX of the 1987 Constitution and inherently unique to
the constitutional commissions is an argument that works heavily against the position of the petitioner that the
limitations on the term of office of these commissions equally apply to the Ombudsman and his deputies.
It is instructive that in the 1949 case of Nationalista Party v. De Vera,99 the Court laid down the following ruling
when it interpreted Sec. 1, Art. X of the 1935 Constitution 100 relative to the term of office of the commissioners of
the independent COMELEC, to wit:
In order to carry out the purpose of the Constitution of placing in the Commission a new member every three
years, it is essential that after the first Commissioners have been appointed, every subsequent appointment shall
so fix the appointee's term of office as to maintain the three years difference between the dates of expiration of the
respective terms of the incumbents. And this can be done if after the appointments of the first three
Commissioners, the successor of any one of them who ceases prior to the expiration of his term, be appointed
only for the unexpired portion of that term. Of course, when a Commissioner ceases because of the expiration of
his term his successor must be appointed for a term of nine years; but when he ceases on other grounds prior to
the expiration of his term, his successor must be appointed only for the unexpired portion of that term, otherwise
the appointment would be offensive to the Constitution. 101
In Republic v. Imperial,102 the Court held that this particular provision of the 1935 Constitution, when taken
together with the prescribed term of office for nine years without reappointment, evidences a deliberate plan to
have a regular rotation or cycle in the membership of the COMELEC, by having subsequent members appointable
only once every three years. With these periods it was the intention to have one position vacant every three years,
so that no President can appoint more than one commissioner, thereby preserving and safeguarding the
independence and impartiality of the Commission as a body, we may add, for the impartiality and independence of
each individual commissioner's tenure was safeguarded by other provisions in the same Article X of the
fundamental charter.103 Moreover, the rotation of the commissioners' appointments at regular and fixed intervals of
three years was a deliberate plan, was shown by the history of the provision and by selection of the fixed term of
nine years for all subsequent appointees, since no other term would give such a result.
In Imperial, we established that for the operation of the rotational plan, two conditions, both indispensable to its
workability, are required, viz: (1) that the terms of the first three commissioners should start on a common date;
and (2) that any vacancy due to death, resignation or disability before the expiration of the term should be filled
only for the unexpired balance of the term. Without satisfying these conditions, the regularity of the intervals
between appointments would be destroyed, and the evident purpose of the rotation, i.e., to prevent that a four-
year administration should appoint more than one permanent and regular commissioner, would be frustrated. It
was settled therefore that of the first three COMELEC commissioners appointed whose office shall all commence
on a common date, one commissioner shall have a term of office of nine years, the other for six years, and the
remaining one for three years.
The rotational plan, which was unique for the COMELEC under the 1935 Constitution, was subsequently applied
to the CSC and the COA pursuant to Art. XII of the 1973 Constitution, viz:
B. THE CIVIL SERVICE COMMISSION
SECTION 1. (1) The Civil Service embraces every branch, agency, subdivision, and instrumentality of the
Government, including every government-owned or-controlled corporation. It shall be administered by an
independent Civil, Service Commission composed of a Chairman and two Commissioners, who shall be natural-
born citizens of the Philippines, and, at the time of their appointment, are at least thirty-five years of age and
holders of a college degree, and must not have been candidates for any elective position in the election
immediately preceding their appointment. The Chairman and the Commissioners shall be appointed by the
President for a term of seven years without reappointment. Of the Commissioners first appointed, one shall hold
office for seven years, another for five years, and the third for three years. Appointment to any vacancy shall be
only for the unexpired portion of the term of the predecessor.
xxxx
C. THE COMMISSION ON ELECTIONS
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the President for a term of seven years without
reappointment. Of the Commissioners first appointed, three shall hold office for seven years, three for five years,
and the last three for three years. Appointment to any vacancy shall be only for the unexpired portion of the term
of the predecessor.
ΧΧΧΧ
D. COMMISION ON AUDIT
SECTION 1. X X X
(2) The Chairman and the Commissioners shall be appointed by the President for a term of seven years without
reappointment. Of the Commissioners first appointed, one shall hold office for seven years, another for five years,
and the third for three years. Appointment to any vacancy shall be only for the unexpired portion of the term of the
predecessor. (emphases supplied)
The regular rotation in the constitutional commissions was carried over in Art. IX of the 1987 Constitution, as
follows:
B. The Civil Service Commission
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three
years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the
predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.
XXXX
C. The Commission on Elections
SECTION 1. X X X
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three
Members shall hold office for seven years, two Members for five years, and the last Members for three years,
without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no
case shall any Member be appointed or designated in a temporary or acting capacity.
xxxx
D. Commission on Audit
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for
three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the
term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting
capacity. (emphases supplied)
Corollary to these provisions in the 1987 Constitution, the terms of the first chairmen and commissioners of the
constitutional commissions must start on a common date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in order that the expiration of the first terms of seven, five and
three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. 104
Unlike the constitutional commissions in the 1973 and 1987 Constitutions, the Ombudsman and the deputies do
not make a collegial body thus, making it implausible to apply the regular rotation or cycle in its membership. The
Ombudsman and the deputies, in contrast to the constitutional commissions, do not decide by a majority vote of
all its members any case or matter brought before the Office of the Ombudsman. To stress, the Ombudsman and
the deputies have their respective jurisdiction; hence, they could not have common responsibility relative to the
discharge of their separate and distinct functions.
Granting that the regular rotation applies to the Office of the Ombudsman and that the first appointed Ombudsman
shall enjoy a seven-year term, then these queries are posed: Will the seven-year term likewise apply to the first
appointed deputies? Who among the first appointed deputies shall take the five-year term? Or the three-year
term? Obviously, the 1987 Constitution does not provide the answers plainly because there is nothing specific in
the fundamental law that provides for the regular rotation of seven-five-three-year term of office in the Office of the
Ombudsman. Thus, it is only apposite to apply the well-settled rule that the court may not, in the guise of
interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the
lawmakers105 or, in this case, the framers of the 1987 Constitution. To stress, it is presumed that these provisions
have been carefully crafted in order to express the objective it seeks to attain. 106
Belatedly, as this issue is raised for the first time in his memorandum, petitioner points out another dimension as
to the alleged unconstitutionality of Sec. 8(3) of R.A. No. 6770. Petitioner avers that Sec. 8(3) of R.A. No. 6770, in
so far' as provides that the Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity until a new
Ombudsman shall have been appointed for a full term runs counter to what is uniformly provided in Sec. 2 of Art.
IX(A), (B), and (C) of the 1987 Constitution, viz: "In no case shall any member be appointed or designated in a
temporary or acting capacity.107
To the point of being monotonous, Art. IX of the 1987 Constitution refers exclusively to the constitutional
commissions; thus, such proscription as to the appointment or designation in a temporary or acting capacity of a
member applies only to the constitutional commissions and cannot extend to the Ombudsman and the deputies.
Indeed, Art. XI of the constitution does not provide for such prohibition. What is clear however, is that the
Ombudsman and the deputies shall, during their tenure, be subject to the same disqualifications and prohibitions
as provided for in Sec. 2 of Article IX(A) of this Constitution, "[n]o Member of a Constitutional Commission shall,
during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession
or in the active management or control of any business which in any way may be affected by the functions of his
office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or
privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-
owned or - controlled corporations or their subsidiaries."
d. The ruling in Gaminde as to the terms of
office of the chairman and members of the
constitutional commissions does not apply
to the Ombudsman and the deputies.
In Gaminde, petitioner Gaminde was appointed on 11 June 1993 as ad interim CSC commissioner, and assumed
office on 22 June 1993.1âwphi1 From her appointment paper, Gaminde's term was to expire on 2 February 1999.
When Gaminde sought clarification from the Office of the President as to the expiration of her term of office, she
was informed by the Chief Presidential Legal Counsel that it would expire on 2 February 2000. The COA General
Counsel, however, opined otherwise, stating that Gaminde's term had expired on 2 February 1999, conformably
with the constitutional intent. As a result, the salaries and emoluments of Gaminde and her co-terminous staff
effective 2 February 1999, were disallowed in audit. Gaminde appealed to the COA en banc but the commission
affirmed the propriety of the disallowance. Gaminde's motion for reconsideration was denied by COA.
Finding that Gaminde's term expired on 2 February 1999, the Court ruled that 2 February 1987 was the proper
starting point of the terms of office of the first appointees to the constitutional commissions with staggered seven-
five-three-year terms considering the plain language of Art. IX (B), Sec. 1 (2), Art. IX (C), Sec. 1 (2) and Art. IX
(D), Sec. 1 (2) of the 1987 Constitution that uniformly prescribed a seven-year term of office for members of the
constitutional commissions without re-appointment; and for the first appointees terms of seven, five and three
years, without re-appointment. If there was a belated appointment or qualification, the interval between the start of
the term and the actual qualification of the appointee must be counted against the latter.
Relevant to Sec. 15, 108 Art. XVIII of the 1987 Constitution, the Court stated that this provision under the Transitory
Provisions contemplates tenure, not term of the incumbent chairperson and members of the CSC, the COMELEC,
and the COA who shall continue in office for one year after the ratification of this Constitution, unless they are
sooner removed for cause or become incapacitated to discharge the duties of their office or appointed to a new
term thereunder. The incumbent members of the constitutional commissions shall continue in office for one year
after the ratification of the 1987 Constitution pursuant to their existing appointments unless their tenure is cut short
by the appointing power. However, Sec. 15, Art. XVIII will not have any effect on the term of office fixed in Art. IX
of the 1987 Constitution providing for a seven-five-three year rotational interval for the first appointees to the
constitutional commissions.
The court draws attention to the fact its ruling in Gamide applies exclusiveley ot the CSC, the COMELEC, and the
COA for the reason that Art. IX of the 1987 COnstitution pertains solely to the constitutional commissions. INdeed,
the jurisprudenceial teachings since 1949 in Bautista and <="" i="">in 1955 in Imperial, albeit referring to the terms
of office of the COMELEC chairman and members, and now in Gamide, pertain to the three constitutional
commissions, and nothing else. It will be absurd as it is devoid of any valid and legal reason, to extend the
application of the Gamide ruling to the Office of the Ombudsman when this office is admittedly not a constitutional
commission.
e. Sec. 8(3) of R.A. No. 6770 is
consistent with Sec. 11, Art. XI of
the 1987 Constitution.
Tracing the history of the creation of the now Office of the Ombudsman, the 1973 Constitution provides:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as 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. 109
It was by virtue of P.D. No. 1487 that President Marcos, in the exercise of his power under Proclamation No.
1081, clearly defined the term of office of the Tanodbayan and his deputies, viz:
Section 6. Term of Office.
(a) The Tanodbayan and his Deputies shall serve for a term of seven years without reappointment unless
removed by the President upon his determination that the Tanodbayan or any of his Deputies has become
incapacitated or has been guilty of neglect of duty, or misconduct.
(b) If the Office of Tanodbayan becomes vacant for any cause, the Senior Deputy Tanodbayan shall serve as
Acting Tanodbayan until the Tanodbayan shall have been appointed for a full term. (emphasis and underlining
supplied)
P.D. No. 1607 and P.D. No. 1630 were subsequently issued by President Marcos amending P.D. No. 1487.
Significantly, the amendatory decrees plainly reiterated the very same provision found in Sec. 6 of P.D. No. 1487.
On the one hand, Sec. 11, Art. XI of the 1987 Constitution reads:
Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven years without
reappointment.1âwphi1 They shall not be qualified to run for any office in the election immediately succeeding
their cessation from office.
The quoted provision of the Constitution is clear and explicit: (a) the Ombudsman and the deputies shall serve the
term of seven years; (b) that the Ombudsman and the deputies shall not be reappointed; and (c) the Ombudsman
and the deputies shall not run for any office in the election immediately succeeding their cessation from office.
Contrary to the position of the petitioner, Sec. 11, Art. XI by itself is clear and can stand on its own. Notably, the
framers plainly provided for a seven-year term of the Ombudsman and the deputies. For sure, nowhere in the
Constitution can it be gathered that the appointment to any vacancy for the position of Ombudsman and the
deputies shall be only for the unexpired term of the predecessor. This can only mean that it was the intent of the
framers that the appointment to the positions of the Ombudsman and the deputies, whether it be for the expired or
unexpired term of the predecessor, shall always be for a full term of seven years. Ubi lex non distinguit nec nos
distinguere debemus. Basic is the rule in statutory construction that where the law does not distinguish, the courts
should not distinguish.110 Where the law is free from ambiguity, the court may not introduce exceptions or
conditions where none is provided from considerations of convenience, public welfare, or for any laudable
purpose; neither may it engraft into the law qualifications not contemplated. 111
More importantly, it can be easily deduced from the decrees issued by President Marcos preceding the creation of
the Office of the Ombudsman under the 1987 Constitution that the appointment of the Tanodbayan and the
deputies shall be for a full term of seven years regardless of the reason for the vacancy in the position.
Jurisprudence teaches us that a statute should be construed in harmony with the constitution, viz:
As the constitution is the fundamental law to which all laws are subservient, a statute should not be interpreted
independently of the Constitution. The statute should be construed in harmony with, and not in violation of the
fundamental law. The legislature, in enacting a statute, is presumed to have adhered to the constitutional
limitations. Courts should accordingly presume that it was the intention of the legislature to enact a valid, sensible,
and just law one which operates no further than maybe necessary to effectuate the specific purpose of the law. 112
In our review of Sec. 8(3) of R.A. No. 6770, we note that in case of death, resignation, removal, or permanent
disability of the Ombudsman, the new Ombudsman shall be appointed for a full term. Undoubtedly, Sec. 8(3), R.A.
No. 6770 is consistent with Sec. 11, Art. XI of the 1987 Constitution in so far as it provides that the Ombudsman
and the deputies shall serve for a term of seven years. Every statute is presumed valid. The presumption is that
the legislature intended to enact a valid, sensible and just law and one which operates no further than may be
necessary to effectuate the specific purpose of the law. 113
Petitioner asserts that in case of a vacancy for reasons other than the expiration of the term in the other
constitutionally created offices, the successor shall serve for the unexpired term of the predecessor. In an attempt
to fortify his assertion he cites the term of the Office of the President, 114 the Vice-President,115 the Senators, and
the Members of the House of Representatives. 116
The Court is not persuaded.
Petitioner failed to consider that there are other offices created under the 1987 Constitution where the successor
is not limited to hold office for the unexpired term of the predecessor. To name a few: (a) the justices of the
Supreme Court and the judges of the lower courts hold office during good behavior until they reach the age of
seventy years or become incapacitated to discharge the duties of their office; 117 hence, in case the incumbent
reaches the age of seventy or when a vacancy occurs for any other reason, the successor shall hold office until he
reaches the age of seventy or becomes incapacitated to discharge his duties; (b) the JBC, where the regular
members are the following: a representative each from the Integrated Bar of the Philippines (IBP) and the private
sector; a professor of law; and a retired member of the Supreme Court. 118 Of the regular members first appointed,
the representative of the IBP shall serve for four years, the professor of law for three years, the retired Justice for
two years, and the representative of the private sector for one year. The Chief Justice shall be the ex officio
Chairman of the JBC, and the Secretary of Justice and a representative of the Congress as ex officio Members.
Thus, the Chief Justice shall remain as the ex officio JBC Chairman until the mandatory retirement age of 70 or
becomes incapacitated to discharge the duties of the office; the Secretary of Justice, while holding this Cabinet
position; and the representative of Congress,119 until recalled by the chamber or until the term of the
representative expires, his term prematurely ends due to death, resignation, removal, or permanent disability; (c)
the Senate and the House Electoral Tribunal, where each electoral tribunal shall be composed of nine members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining
six shall be members of the Senate or the House of Representatives, as the case may be, who shall be chosen on
the basis of proportional representation from the political parties and the parties or organizations registered under
the party-list system represented therein. The senior Justice in the electoral tribunal shall be its Chairman.
Following the earlier discussion on the JBC, the term of the Justices shall be until they reach the mandatory
retirement age of 70 or become incapacitated to discharge the duties of the office; and the members of the Senate
and the House of Representatives, until they are recalled by the chamber, or their term expires, or their term
prematurely ends due to death, resignation, removal, or permanent disability; and (c) the Commission on
Appointments (CA), which shall be composed of twelve Senators and twelve members of the House of
Representatives, elected by each House on the basis of proportional representation from the political parties and
parties or organizations registered under the party-list system represented herein. The President of the Senate
shall be the ex officio chairman of the CA. 120 Hence, the ex officio chairman shall remain as such until he
becomes the President of the Senate, while the members shall continue as such until recalled by the chamber, or
until their term expires, or their term prematurely ends due to death, resignation, removal, or permanent disability.
It is a legal teaching that the courts, as guardians of the Constitution, have the inherent authority to determine
whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. And where the
acts of the other branches of government run afoul of the Constitution, it is the judiciary's solemn and sacred duty
to nullify the same.121 The Court has punctiliously reviewed the 1987 Constitution and its jurisprudential
declarations but found nothing that would at the very least tenuously support the argument of the petitioner that
Sec. 8(3) of R.A. No. 6770 is unconstitutional.
Going back to our earlier pronouncement that the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute, the Court rules that the petitioner has miserably failed to prove that
Sec. 8(3) of R.A. No. 6770 transgresses the provisions of the 1987 Constitution. As such, the Court has no option
but to deny the petition.
To summarize:
Pertinent to Sec. 10, Art. XI of the 1987 Constitution, it is only as to the rank and salary that the Ombudsman and
the deputies shall be the same with the chairman and members, respectively, of the constitutional commissions.
Harmonizing Sec. 11, Art. XI of the 1987 Constitution with Sec. 8(3) of R.A. No. 6770, in any vacancy for the
positions of Ombudsman and the deputies, whether as a result of the expiration of the term or death, resignation,
removal, or permanent disability of the predecessor, the successor shall always be appointed for a full term of
seven years.
Unlike the constitutional commissions in Art. IX of the 1987 Constitution, the seven-year term of office of the first
appointees for Ombudsman and the deputies is not reckoned from 2 February 1987, but shall be reckoned from
their date of appointment. Accordingly, the present Ombudsman and deputies shall serve a full term of seven
years from their date of appointment unless their term is cut short by death, resignation, removal, or permanent
disability.
The Gaminde ruling applies to the constitutional commissions and not to the Office of the Ombudsman.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Case no. 3:
G.R. No. 163586               January 27, 2009
SHARON CASTRO, Petitioner,
vs.
HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court, Branch 65, Guimaras; the COA-Region VI,
represented by its Director; and HON. COURT OF APPEALS, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court filed by Sharon Castro (petitioner)
to assail the July 22, 2003 Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No. 69350; and
the March 26, 2004 CA Resolution2 which denied the motion for reconsideration.
The facts are of record.
On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65,
Guimaras, with Malversation of Public Funds, under an Information which reads, as follows:
That on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista,
Province of Guimaras, Philippines and within the jurisdiction of the this Honorable Court, abovenamed accused, a
public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such,
was in the custody and possession of public funds in the amount of P556,681.53, Philippine Currency,
representing the value of her collections and other accountabilities, for which she is accountable by reason of the
duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public
position, with deliberate intent, and with intent to gain, did then and there willfully, unlawfully and feloniously
appropriate, take, misappropriate, embezzle and convert to her own personal use and benefit said amount of
P556,681.53, and despite notice and demands made upon her account for said public funds, she has failed to do
so, to the damage and prejudice of the government.
CONTRARY TO LAW.3
Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001.
On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority
of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the
Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC.
Citing Uy v. Sandiganbayan,4 petitioner further argued that as she was a public employee with salary grade 27,
the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public
prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by
the Sandiganbayan.5
The RTC denied the Motion to Quash in an Order6 dated September 7, 2001. It held that the jurisdiction of the
RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter
for the offense charged.7 Moreover, it sustained the prosecutorial authority of the Ombudsman in the case,
pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9,
1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory
authority of the Ombudsman in cases cognizable by the RTC.
The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule 117, for it was filed after petitioner
pleaded not guilty under the Information.8
Petitioner filed a Motion for Reconsideration,9 which the RTC denied in its December 18, 2001 Order. 10
Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed the petition in the Decision under
review.
Petitioner’s motion for reconsideration12 was also denied.
Hence, the present petition, confining the issues to the following:
1. Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public
Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme
Court’s ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of
the Ombudsman is limited to cases cognizable by the Sandiganbayan.
2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in
the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the
constitutional provision on ex-post facto laws and denial of the accused to due process. 13
Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up
to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing
jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the
investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26, 2000, then
the August 9, 1999 Decision in Uy was applicable, notwithstanding that the said decision was set aside in the
March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was
void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case.
The petition lacks merit.
The petition calls to mind Office of the Ombudsman v. Enoc, 14 wherein accused Ruben Enoc, et al. invoked the
August 9, 1999 Decision of the Court in Uy15 in a motion to dismiss the 11 counts of malversation that were filed
against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the
Ombudsman, the Court reversed the RTC and held:
In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v.
Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases
cognizable by the Sandiganbayan.
Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not
only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It
held:
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 cognizable 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.
We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97)
to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not
exclusive and is shared by him with the regular prosecutors.
WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur
is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court
is ORDERED to try and decide the same. (Emphasis supplied)
Similarly relevant is the case of Office of Ombudsman v. Hon. Breva, 16 in which, citing the August 9, 1999
Decision in Uy, the RTC dismissed a criminal complaint that was filed before it by the Ombudsman. The Court
reversed the RTC, for, "given the Court’s Uy ruling under its March 20, 2001 Resolution, the trial court’s assailed
Orders x x x are, in hindsight, without legal support and must, therefore, be set aside."
It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in
cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9,
1999 Decision was the operative ruling on the issue.
Petitioner would argue, however, that the March 20, 2001 Resolution in Uy  cannot have retroactive effect, for
otherwise it would amount to "an ex-post facto law, which is constitutionally proscribed." 17
Petitioner is grasping at straws.
A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its
original passage. Such interpretation does not create a new law but construes a pre-existing one; it merely casts
light upon the contemporaneous legislative intent of that law. 18 Hence, the March 20, 2001 Resolution of the Court
in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7,
1989.
Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal interpretation of such law,
the Court, recognizing that acts may have been performed under the impression of the constitutionality of the law
or the validity of its interpretation, has consistently held that such operative fact cannot be undone by the mere
subsequent declaration of the nullity of the law or its interpretation; thus, the declaration can only have a
prospective application.19 But where no law is invalidated nor doctrine abandoned, a judicial interpretation of the
law should be deemed incorporated at the moment of its legislation. 20
In the present case, the March 20, 2001 Resolution in Uy  made no declaration of unconstitutionality of any law
nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous
pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case.
Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes
conducted by the Ombudsman, such as the filing of the Information against petitioner.
With the foregoing disquisition, the second issue is rendered moot and academic.
WHEREFORE, the petition is DISMISSED for lack of merit.
No costs.
SO ORDERED.
Case no. 4:
G.R. No. 176478             February 4, 2008
LORNA A. MEDINA, petitioner,
vs.
COMMISSION ON AUDIT (COA), represented by the Audit Team of EUFROCINIA MAWAK, SUSAN PALLERNA,
and MA. DOLORES TEPORA, respondents.
DECISION
TINGA, J.:
While highlighting the interplay between the powers of two constitutional offices, one mandated as the
government monitor of public fund expenditures and the other as the sentinel against graft and corruption in
government, this case resolves some questions about the extent of their powers.
This is a petition for review on certiorari1 under Rule 45 of the 1997 Rules of Civil Procedure seeking the reversal
of the Decision2 and Resolution3 of the Court of Appeals in CA-G.R. SP No. 89539. The Court of Appeals' decision
affirmed the two joint orders issued by the Office of the Deputy Ombudsman for Luzon finding herein petitioner
Lorna A. Medina guilty of grave misconduct and dishonesty. The Resolution of the same court denied petitioner's
motion for reconsideration of the said decision.
The instant petition originated from the audit conducted by respondent Commission on Audit (COA) on the cash
and accounts handled by petitioner in her official capacity as Municipal Treasurer of General Mariano Alvarez,
Cavite. In the Joint Affidavit4 executed by herein respondents Eufrocinia M. Mawak, head of the audit team, and
Susana L. Pallerna, Ma. Dolores C. Tepora and a certain Nelson T. Alvarez, who were all state auditors of the
Provincial Auditor's Office of Cavite, they all stated that they had examined petitioner's financial records covering
19 August 1999 to 26 September 2000 and discovered a total cash shortage in the aggregate amount
of P4,080,631.36. They thus directed petitioner to immediately restitute the shortage within 72 hours from receipt
of the demand letter but petitioner allegedly failed to comply. The state auditors submitted a report to the
Provincial Auditor's Office and recommended the relief of petitioner from her post as municipal treasurer and the
filing of criminal charges against her.
COA, represented by the aforementioned state auditors, filed an administrative case docketed as OMB-L-A-04-
0361-F before the Office of the Deputy Ombudsman for Luzon, charging petitioner with grave misconduct and
dishonesty. As directed, petitioner filed a Counter-Affidavit 5 and a Position Paper6 mainly raising the following
defenses: (1) the audit team was not independent and competent; (2) the computation of her accountabilities was
overstated and erroneous; (3) the audit team failed to verify documents such as bank reconciliation statements,
general ledgers and cashbooks presented during the cash count; (4) the documents in support of the audit report
were not signed, hence, were self-serving; (5) the cash shortage in the amount of P379,646.51 under the SEF
and Trust Fund as well as the disallowed amount of P585,803.37 had no basis as the same pertained to a
previous audit and, thus, should have been excluded from the computation of the total shortage; (6) the cash
items amounting to P883,952.91 in the form of reimbursement expense receipts should not have been disallowed
because they were actually received by individual payees; (7) petitioner's cash on hand accountability was
overstated because a collection was not immediately recorded; and (8) the audit team erroneously credited
petitioner's accounts to another cashier.
In a Decision7 dated 8 November 2004, Deputy Ombudsman Victor C. Fernandez approved the recommendation
of the Graft Investigation and Prosecution Officer to dismiss petitioner from service based on the existence of
substantial evidence of a discrepancy in petitioner's account totaling P4,080,631.36. The said decision noted
petitioner's supposed failure to file a counter-affidavit and position paper despite due notice.
On 29 November 2004, petitioner filed an urgent motion 8 stating that she complied with the directive to file a
counter-affidavit and position paper and praying that the defenses therein be considered in reversing the 8
November 2004 decision. The motion was treated as a motion for reconsideration of the said decision.
On 31 January 2005, Deputy Ombudsman Fernandez issued the first assailed Joint Order 9 denying petitioner's
urgent motion. Although the order acknowledged the erroneous statement in the 8 November 2004 Decision
stating that petitioner failed to submit a counter-affidavit, nevertheless, it affirmed the Resolution and Decision
both dated 8 November 2004. Deputy Ombudsman Fernandez ruled that petitioner's Counter-Affidavit and
Position Paper did not present exculpatory arguments that would negate the allegation of discrepancy on
petitioner's accounts. He also held that petitioner's concerns relating to the conduct of the audit should have been
raised at the time of the audit or immediately thereafter, and that petitioner's failure to produce the amount of cash
shortage despite demand created a presumption that she appropriated public funds under her custody for her own
personal use.10
Petitioner sought reconsideration11 on grounds of newly discovered and material evidence and grave errors of fact
and/or law prejudicial to her own interest. The purported newly discovered evidence consisted of petitioner's
request for reconsideration of the audit report filed and still pending before the office of the audit team head,
herein respondent Mawak, and letters sent by petitioner's counsel to the provincial auditor of Cavite questioning
the audit and requesting a re-audit of petitioner's accounts.
In the second assailed Joint Order dated 22 March 2005, 12 Deputy Ombudsman Fernandez denied petitioner's
motion for reconsideration. He reiterated that petitioner's allegations as regards the incompetence of the audit
team and the errors in the audit report were matters which may be properly ventilated during trial. He explained
that petitioner failed to produce the missing funds despite notice thereof creating a presumption that the same
were appropriated for personal use and for the purpose of preliminary investigation, such findings warranted the
filing of criminal charges against petitioner. The deputy ombudsman held that petitioner's belated request for re-
audit could not be considered newly discovered evidence and denied the request for a formal investigation on the
ground that petitioner was afforded due process when she filed her counter-affidavit and position paper. 13
Petitioner elevated the matter to the Court of Appeals via a Petition for Review 14 questioning the denial of her
request for a formal investigation, the penalty of dismissal, and the sufficiency of the evidence against her.
The Court of Appeals dismissed the petition in the assailed Decision dated 23 October 2006. 15 It held that
petitioner was not entitled to a formal investigation and it affirmed the deputy ombudsman's factual finding that
petitioner was guilty of grave misconduct and dishonesty. The appellate court also denied petitioner's motion for
reconsideration in a Resolution dated 30 January 2007.
Hence, the instant petition16 seeking the reversal of the Court of Appeals' decision on the following grounds: (1)
the Court of Appeals failed to order a formal reinvestigation, to reopen and review the records of the
administrative case, to consider newly discovered evidence attached to petitioner's motion for reconsideration of
the deputy ombudsman's Decision and to consider material allegations in the motion for reconsideration of the
assailed decision; (2) petitioner was able to overcome the presumption that she appropriated the missing funds for
personal use; (3) the filing of the administrative case was baseless; and (4) the penalty of dismissal was
unwarranted.
The instant petition reiterates the issues brought up before the Court of Appeals, namely: whether petitioner was
deprived of her right to due process, whether the penalty of dismissal is proper and whether petitioner's guilt for
grave misconduct and dishonesty is supported by substantial evidence.
Invoking her right to due process, petitioner, on one hand, insists that she is entitled to a formal investigation,
citing the Administrative Code of 1987, Book V, Title I, Subtitle A, Section 48 (2) 17 and (3).18 On the other hand, in
support of its argument that the propriety of conducting a formal investigation rests on the sound discretion of the
hearing officer, respondent COA, through the Office of the Solicitor General (OSG), relies on Administrative Order
No. 07, as amended by Administrative Order No. 17, Rule III, Section 5, 19 governing the procedure in
administrative cases filed before the Office of the Ombudsman.
The validity of Administrative Order No. 07, Rule III, Section 5 is not in dispute. However, petitioner argues that
said provision is inferior to the provision in the Administrative Code which entitles the respondent to a formal
investigation if he so desires.
Petitioner's theory is erroneous.
Administrative Order No. 07, as amended by Administrative Order No. 17, particularly governs the procedure in
administrative proceedings before the Office of the Ombudsman. The Rules of Procedure of the Office of the
Ombudsman was issued pursuant to the authority vested in the Office of the Ombudsman under Republic Act No.
6770, otherwise known as "The Ombudsman Act of 1989." When an administrative agency promulgates rules and
regulations, it "makes" a new law with the force and effect of a valid law. Rules and regulations when promulgated
in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature
of a statute.20
On the other hand, the provisions in the Administrative Code cited by petitioner in support of her theory that she is
entitled to a formal investigation apply only to administrative cases filed before the Civil Service Commission
(CSC). In particular, Section 48(2) and Section 48(3) are subsumed under Subtitle A of Title I, which pertains to
the CSC and to the procedure of administrative cases filed before the CSC. The administrative complaint against
petitioner was filed before the Office of the Ombudsman, suggesting that a different set of procedural rules
govern. And rightly so, the Deputy Ombudsman applied the provisions of Rules of Procedure of the Office of the
Ombudsman in ruling that the prerogative to elect a formal investigation pertains to the hearing officer and not to
petitioner.
On various occasions,21 the Court has ruled on the primacy of special laws and of their implementing regulations
over the Administrative Code of 1987 in settling controversies specifically subject of these special laws. For
instance, in Hon. Joson v. Exec. Sec. Torres,22 the Court held that the Local Government Code of 1991, the Rules
and Regulations Implementing the Local Government Code of 1991, and Administrative Order No. 23 (A.O. No.
23)23 govern administrative disciplinary proceedings against elective local officials, whereas the Rules of Court
and the Administrative Code of 1987 apply in a suppletory character to all matters not provided in A.O. No.
23.24 The aforesaid ruling is based on the principle of statutory construction that where there are two statutes
applicable to a particular case, that which is specially intended for the said case must prevail. 25
More significantly, in Lapid v. Court of Appeals,26 the Court expressly upheld the applicability of The Ombudsman
Act of 1989 and the implementing rules and regulations thereof to the exclusion of the Local Government Code
and the Administrative Code of 1989 on the issue of the execution of the Ombudsman's decision pending appeal.
The Court noted that petitioner therein was charged before the Office of the Ombudsman and accordingly, The
Ombudsman Act of 1989 should apply exclusively. The Court explained, thus:
There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and
the Local Government Code on execution pending review should be applied suppletorily to the
provisions of the Ombudsman Act as there is nothing in the Ombudsman Act which provides for such
suppletory application. xxx xxx xxx
And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local
Government Code are in pari materia  insofar as the three laws relate or deal with public officers, the
similarity ends there. It is a principle in statutory construction that where there are two statutes that
apply to a particular case, that which was specially designed for the said case must prevail over the
other. In the instant case, the acts attributed to petitioner could have been the subject of administrative
disciplinary proceedings before the Office of the President under the Local Government Code or before
the Office of the Ombudsman under the Ombudsman Act. Considering however, that petitioner was
charged under the Ombudsman Act, it is this law alone which should govern his case. 27
Thus, as between the Administrative Code of 1987 and Administrative Order No. 07, as amended, issued by the
Office of the Ombudsman, the latter governs in this case which involves an administrative complaint filed with the
Office of the Ombudsman and which raises the question of whether petitioner is entitled to a formal investigation
as a matter of right.
Even assuming the Administrative Code is applicable, still there is a formidable hindrance to petitioner's prayer for
a formal investigation. The records show that petitioner sought a reinvestigation only as an afterthought, that is,
after the deputy ombudsman had already rendered a decision on the administrative complaint. The reinvestigation
should have been requested at the first opportunity but definitely before the rendition of a decision.
As correctly pointed out by the OSG, the denial of petitioner's request for a formal investigation is not tantamount
to a denial of her right to due process. Petitioner was required to file a counter-affidavit and position paper and
later on, was given a chance to file two motions for reconsideration of the decision of the deputy ombudsman. The
essence of due process in administrative proceedings is the opportunity to explain one's side or seek a
reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard
before judgment is rendered, the demands of due process are sufficiently met. 28
Petitioner's assertion that the Court of Appeals refused to reopen and review the case and ignored material issues
and arguments in her motion for reconsideration of the 23 October 2006 Decision in violation of her right to due
process, is quite hollow.
The appellate court disposed of petitioner's contention that she was able to controvert the accusations against her
in this wise:
Regarding the second, third and fourth assigned errors, We judiciously believe that the issues raised
therein are essentially factual in nature. The rule is that the findings of fact in administrative decisions
must be respected as long as they are supported by substantial evidence, even if not overwhelming or
preponderant. It is not for the reviewing court to weight the conflicting evidence, determine the credibility
of the witnesses or otherwise substitute its own judgment for that of the administrative agency on the
sufficiency of evidence. It has been consistently held that substantial evidence is all that is needed to
support an administrative finding of fact which means such relevant evidence as a reasonable mind
might accept to support a conclusion.29
Nothing prevents the Court of Appeals from adopting the factual findings and conclusion of the deputy
ombudsman on the ground that the findings and conclusions were based on substantial evidence. Well-settled is
the rule that the findings of fact of administrative bodies, if based on substantial evidence, are controlling on the
reviewing authority. It is settled that it is not for the appellate court to substitute its own judgment for that of the
administrative agency on the sufficiency of the evidence and the credibility of the witnesses. Administrative
decisions on matters within their jurisdiction are entitled to respect and can only be set aside on proof of grave
abuse of discretion, fraud or error of law.30 Guided by this principle, the appellate court correctly affirmed the
finding of guilt for grave misconduct and dishonesty.
Unfazed, petitioner now asks this Court to once again review the factual findings and conclusions of the Deputy
Ombudsman which had already been affirmed by the Court of Appeals. Whether the finding of petitioner's guilt for
grave misconduct and dishonesty is supported by substantial evidence, suffice it to say these are factual issues
calling for a review of the records of the case. Clear and unmistakable is the rule that the Supreme Court is not a
trier of facts. Just as well entrenched is the doctrine that pure issues of fact may not be the proper subject of
appeal by certiorari under Rule 45 of the Revised Rules of Court as this mode of appeal is generally confined to
questions of law. Only questions of law, not questions of fact, may be raised before the Supreme Court in a
petition for review under Rule 45. This Court cannot be tasked to go over the proofs presented by the petitioners
in the lower courts and analyze, assess and weigh them to ascertain if the court a quo and the appellate court
were correct in their appreciation of the evidence. 31
Anyhow, the Court adopts the following findings of the Court of Appeals which are borne out by the records of the
case:
x x x It is a fact that an examination was conducted on the cash and accounts of respondent and that a
shortage was found. While the latter argues that the auditors did not observe the proper procedure in
conducting an examination and as a consequence of which, she was not able to justify the alleged
shortage, we take note that the latter was given the opportunity to make such explanation when the
auditors sent her a demand letter.32
On the penalty of dismissal which petitioner claims is too harsh, petitioner argues that the mitigating
circumstances of this being her first offense and of the unreasonable length of time in filing the administrative case
should be considered in her favor.
Jurisprudence is replete with cases declaring that a grave offense cannot be mitigated by the fact that the
accused is a first time offender or by the length of service of the accused. In Civil Service Commission v.
Cortez,33 the Court held as follows:
The gravity of the offense committed is also the reason why we cannot consider the "first offense"
circumstance invoked by respondent. In several cases, we imposed the heavier penalty of dismissal or
a fine of more than P20,000.00, considering the gravity of the offense committed, even if the offense
charged was respondent's first offense. Thus, in the present case, even though the offense respondent
was found guilty of was her first offense, the gravity thereof outweighs the fact that it was her first
offense.34
Also, in Concerned Employees v. Nuestro,35 a court employee charged with and found guilty of dishonesty for
falsification was meted the penalty of dismissal notwithstanding the length of her service in view of the gravity of
the offense charged.
To end, it must be stressed that dishonesty and grave misconduct have always been and should remain
anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office. When an
officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the
improvement of the public service and the preservation of the public's faith and confidence in the government. 36
WHEREFORE, the instant petition for review on certiorari is DENIED. The Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 89539 are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Case no. 5:
G.R. No. 164679               July 27, 2011
OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
ULDARICO P. ANDUTAN, JR., Respondent.
DECISION
BRION, J.:
Through a petition for review on certiorari,1 the petitioner Office of the Ombudsman (Ombudsman) seeks the
reversal of the decision2 of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of
the Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893. The
assailed decision annulled and set aside the decision of the Ombudsman dated July 30, 2001, 3 finding Uldarico P.
Andutan, Jr. guilty of Gross Neglect of Duty.
THE FACTUAL ANTECEDENTS
Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the
Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a
Memorandum directing all non-career officials or those occupying political positions to vacate their positions
effective July 1, 1998.4 On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF. 5
On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P.
Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing
Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and
Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was
criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through
Falsification of Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act. 6 As government employees, Andutan, Belicena and
Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official
Documents and Conduct Prejudicial to the Best Interest of the Service. 7
The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates
(TCCs) to Steel Asia, among others.8
During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-
Two Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (₱242,433,534.00).9 The
FFIB concluded that Belicena, Malonzo and Andutan – in their respective capacities – irregularly approved the
"issuance of the TCCs to several garment/textile companies and allowing their subsequent illegal transfer" to Steel
Asia.10
On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-
affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on
March 13, 2000.
Upon the respondents’ failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case
submitted for resolution.
On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. 11 Having been
separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other
benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or
instrumentality of the government, including government owned and controlled agencies or corporations. 12
After failing to obtain a reconsideration of the decision, 13 Andutan filed a petition for review on certiorari before the
CA.
On July 28, 2004,14 the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should
not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the
Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if
it believes that x x x [t]he complaint was filed after one year from the occurrence of the act or omission complained
of";15 and second, the administrative case was filed after Andutan’s forced resignation. 16
THE PETITIONER’S ARGUMENTS
In this petition for review on certiorari, the Ombudsman asks the Court to overturn the decision of the CA. It
submits, first, that contrary to the CA’s findings, administrative offenses do not prescribe after one year from their
commission,17 and second, that in cases of "capital" administrative offenses, resignation or optional retirement
cannot render administrative proceedings moot and academic, since accessory penalties such as perpetual
disqualification and the forfeiture of retirement benefits may still be imposed. 18
The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing jurisprudence,
the use of the word "may" indicates that Section 20 is merely directory or permissive. 19 Thus, it is not ministerial
upon it to dismiss the administrative complaint, as long as any of the circumstances under Section 20 is
present.20 In any case, the Ombudsman urges the Court to examine its mandate under Section 13, Article XI of
the 1987 Constitution, and hold that an imposition of a one (1) year prescriptive period on the filing of cases
unconstitutionally restricts its mandate.21
Further, the Ombudsman submits that Andutan’s resignation from office does not render moot the administrative
proceedings lodged against him, even after his resignation. Relying on Section VI(1) of Civil Service Commission
(CSC) Memorandum Circular No. 38,22 the Ombudsman argues that "[a]s long as the breach of conduct was
committed while the public official or employee was still in the service x x x a public servant’s resignation is not a
bar to his administrative investigation, prosecution and adjudication." 23 It is irrelevant that Andutan had already
resigned from office when the administrative case was filed since he was charged for "acts performed in office
which are inimical to the service and prejudicial to the interests of litigants and the general public." 24 Furthermore,
even if Andutan had already resigned, there is a need to "determine whether or not there remains penalties
capable of imposition, like bar from reentering the (sic) public service and forfeiture of benefits." 25 Finally, the
Ombudsman reiterates that its findings against Andutan are supported by substantial evidence.
THE RESPONDENT’S ARGUMENTS
Andutan raises three (3) counterarguments to the Ombudsman’s petition.
First, Andutan submits that the CA did not consider Section 20(5) of R.A. 6770 as a prescriptive period; rather, the
CA merely held that the Ombudsman should not have considered the administrative complaint. According to
Andutan, Section 20(5) "does not purport to impose a prescriptive period x x x but simply prohibits the Office of
the Ombudsman from conducting an investigation where the complaint [was] filed more than one (1) year from the
occurrence of the act or omission complained of."26 Andutan believes that the Ombudsman should have referred
the complaint to another government agency.27 Further, Andutan disagrees with the Ombudsman’s interpretation
of Section 20(5). Andutan suggests that the phrase "may not conduct the necessary investigation" means that the
Ombudsman is prohibited to act on cases that fall under those enumerated in Section 20(5). 28
Second, Andutan reiterates that the administrative case against him was moot because he was no longer in the
public service at the time the case was commenced.29 According to Andutan, Atty. Perez v. Judge Abiera 30 and
similar cases cited by the Ombudsman do not apply since the administrative investigations against the
respondents in those cases were commenced prior to their resignation. Here, Andutan urges the Court to rule
otherwise since unlike the cases cited, he had already resigned before the administrative case was initiated. He
further notes that his resignation from office cannot be characterized as "preemptive, i.e. made under an
atmosphere of fear for the imminence of formal charges" 31 because it was done pursuant to the Memorandum
issued by then Executive Secretary Ronaldo Zamora.
Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the
administrative case against him since the cardinal issue in administrative cases is the "officer’s fitness to remain in
office, the principal penalty imposable being either suspension or removal." 32 The Ombudsman’s opinion - that
accessory penalties may still be imposed - is untenable since it is a fundamental legal principle that "accessory
follows the principal, and the former cannot exist independently of the latter." 33
Third, the Ombudsman’s findings were void because procedural and substantive due process were not observed.
Likewise, Andutan submits that the Ombudsman’s findings lacked legal and factual bases.
ISSUES
Based on the submissions made, we see the following as the issues for our resolution:
I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative
investigation a year after the act was committed?
II. Does Andutan’s resignation render moot the administrative case filed against him?
III. Assuming that the administrative case is not moot, are the Ombudsman’s findings supported by
substantial evidence?
THE COURT’S RULING
We rule to deny the petition.
The provisions of Section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an
investigation a year after the supposed act was committed.
The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by
jurisprudence.34 In Office of the Ombudsman v. De Sahagun,35 the Court, speaking through Justice Austria-
Martinez, held:
[W]ell-entrenched is the rule that administrative offenses do not prescribe [ Concerned Taxpayer v. Doblada, Jr.,
A.M. No. P-99-1342, September 20, 2005, 470 SCRA 218; Melchor v. Gironella,  G.R. No. 151138, February 16,
2005, 451 SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420 Phil. 637, 648-649
(2001)]. Administrative offenses by their very nature pertain to the character of public officers and employees. In
disciplining public officers and employees, the object sought is not the punishment of the officer or employee but
the improvement of the public service and the preservation of the public’s faith and confidence in our government
[Melchor v. Gironella,  G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481; Remolona v. Civil Service
Commission, 414 Phil. 590, 601 (2001)].
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20. Exceptions. – The Office of the Ombudsman may not conduct the necessary investigation of any
administrative act or omission complained of if it believes that:
xxxx
(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis
supplied)
proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the
occurrence of the complained act or omission.
In Melchor v. Gironella  [G.R. No. 151138, February 16, 2005, 451 SCRA 476] , the Court held that the period
stated in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given
to the Ombudsman on whether it would investigate a particular administrative offense. The use of the word "may"
in the provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476, 481; Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the
words of a statute are clear, plain and free from ambiguity, they must be given their literal meaning and applied
without attempted interpretation [Melchor v. Gironella,  G.R. No. 151138, February 16, 2005, 451 SCRA 476,
481; National Federation of Labor v. National Labor Relations Commission , 383 Phil. 910, 918 (2000)].
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50], the Court interpreted Section 20
(5) of R.A. No. 6770 in this manner:
Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's
complaint is barred by prescription considering that it was filed more than one year after the alleged commission
of the acts complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends.
When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative,
operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the
Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the
occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis
supplied)
The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the
negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes
prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on
statutory construction. [emphases and underscoring supplied]
Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative
investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt,
even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman
was well within its discretion to conduct the administrative investigation.
However, the crux of the present controversy is not on the issue of prescription, but on the issue of the
Ombudsman’s authority to institute an administrative complaint against a government employee who had already
resigned. On this issue, we rule in Andutan’s favor.
Andutan’s resignation divests the Ombudsman of its right to institute an administrative complaint against him.
Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the
Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public
servant at the time the case was filed.
The Ombudsman argued – in both the present petition and in the petition it filed with the CA – that Andutan’s
retirement from office does not render moot any administrative case, as long as he is charged with an offense he
committed while in office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned prior to
the filing of the administrative case since the operative fact that determines its jurisdiction is the commission of an
offense while in the public service.
The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this
proposition, viz.:
Section VI.
1. x x x
An officer or employee under administrative investigation may be allowed to resign pending decision of his case
but it shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice
to the filing of any administrative, criminal case against him for any act committed while still in the service.
(emphasis and underscoring supplied)
The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or
employees were already charged before they were allowed to resign or were separated from service." 36 In this
case, the CA noted that "the administrative cases were filed only after Andutan was retired, hence the
Ombudsman was already divested of jurisdiction and could no longer prosecute the cases." 37
Challenging the CA’s interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil
Service Memorandum Circular to the first sentence."38 Further, according to the Ombudsman, "the court a quo
ignored the second statement in the said circular that contemplates a situation where previous to the institution of
the administrative investigation or charge, the public official or employee subject of the investigation has
resigned."39
To recall, we have held in the past that a public official’s resignation does not render moot an administrative case
that was filed prior to the official’s resignation. In Pagano v. Nazarro, Jr., 40 we held that:
In Office of the Court Administrator v. Juan  [A.M. No. P-03-1726, 22 July 2004, 434 SCRA 654, 658], this Court
categorically ruled that the precipitate resignation of a government employee charged with an offense punishable
by dismissal from the service does not render moot the administrative case against him. Resignation is not a way
out to evade administrative liability when facing administrative sanction. The resignation of a public servant does
not preclude the finding of any administrative liability to which he or she shall still be answerable  [Baquerfo v.
Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied]
Likewise, in Baquerfo v. Sanchez,41 we held:
Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427 SCRA
8] or retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of Public
Documents and Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September 2004; Caja v. Nanquil, A.M.
No. P-04-1885, 13 September 2004] neither warrants the dismissal of the administrative complaint filed against
him while he was still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing
Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22
April 1977, 76 SCRA 301] nor does it render said administrative case moot and academic [Sy Bang v. Mendez,
350 Phil. 524, 533 (1998)]. The jurisdiction that was this Court’s at the time of the filing of the administrative
complaint was not lost by the mere fact that the respondent public official had ceased in office during the
pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent’s resignation does not preclude
the finding of any administrative liability to which he shall still be answerable [OCA v. Fernandez, A.M. No. MTJ-
03-1511, 20 August 2004]. [emphases and underscoring supplied)
However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the
Court found that the public officials – subject of the administrative cases – resigned, either to prevent the
continuation of a case already filed42 or to pre-empt the imminent filing of one.43 Here, neither situation obtains.
The Ombudsman’s general assertion that Andutan pre-empted the filing of a case against him by resigning, since
he "knew for certain that the investigative and disciplinary arms of the State would eventually reach him" 44 is
unfounded. First, Andutan’s resignation was neither his choice nor of his own doing; he was forced to resign.
Second, Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on
September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find
reason in the Ombudsman’s sweeping assertions in light of these facts.
What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed
the administrative case against him. Additionally, even if we were to accept the Ombudsman’s position that
Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to
prevent the filing of the administrative case.
Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section
VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman’s interpretation that "[a]s long as the
breach of conduct was committed while the public official or employee was still in the service x x x a public
servant’s resignation is not a bar to his administrative investigation, prosecution and adjudication." 45 If we agree
with this interpretation, any official – even if he has been separated from the service for a long time – may still be
subject to the disciplinary authority of his superiors, ad infinitum. We believe that this interpretation is inconsistent
with the principal motivation of the law – which is to improve public service and to preserve the public’s faith and
confidence in the government, and not the punishment of the public official concerned. 46 Likewise, if the act
committed by the public official is indeed inimical to the interests of the State, other legal mechanisms are
available to redress the same.
The possibility of imposing
accessory penalties does not
negate the Ombudsman’s lack
of jurisdiction.
The Ombudsman suggests that although the issue of Andutan’s removal from the service is moot, there is an
"irresistible justification" to "determine whether or not there remains penalties capable of imposition, like bar from
re-entering the public service and forfeiture of benefits." 47 Otherwise stated, since accessory penalties may still be
imposed against Andutan, the administrative case itself is not moot and may proceed despite the inapplicability of
the principal penalty of removal from office.
We find several reasons that militate against this position.
First, although we have held that the resignation of an official does not render an administrative case moot and
academic because accessory penalties may still be imposed, this holding must be read in its proper context. In
Pagano v. Nazarro, Jr.,48 indeed, we held:
A case becomes moot and academic only when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits of the case [ Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9
May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner’s separation
from government service. Even if the most severe of administrative sanctions - that of separation from service -
may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later
found guilty of administrative offenses charged against her, namely, the disqualification to hold any government
office and the forfeiture of benefits. [emphasis and underscoring supplied]
Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of
accessory penalties justifies the continuation of an administrative case. This is a misplaced reading of the case
and its ruling.
Esther S. Pagano – who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet – filed her
certificate of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no
administrative case should be filed against her. The directive arose from allegations that her accountabilities
included a cash shortage of ₱1,424,289.99. She filed her certificate of candidacy under the pretext that since she
was deemed ipso facto resigned from office, she was no longer under the administrative jurisdiction of her
superiors. Thus, according to Pagano, the administrative complaint had become moot.
We rejected Pagano’s position on the principal ground "that the precipitate resignation of a government employee
charged with an offense punishable by dismissal from the service does not render moot the administrative case
against him. Resignation is not a way out to evade administrative liability when facing administrative
sanction."49 Our position that accessory penalties are still imposable – thereby negating the mootness of the
administrative complaint – merely flows from the fact that Pagano pre-empted the filing of the administrative case
against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of
the administrative complaint if Pagano’s filing of candidacy/resignation did not reek of irregularities. Our factual
findings in Pagano confirm this, viz.:
At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer
that she needed to explain why no administrative charge should be filed against her, after it discovered the cash
shortage of ₱1,424,289.99 in her accountabilities. Moreover, she had already filed her answer. To all intents and
purposes, the administrative proceedings had already been commenced at the time she was considered
separated from service through her precipitate filing of her certificate of candidacy. Petitioner’s bad faith was
manifest when she filed it, fully knowing that administrative proceedings were being instituted against her as part
of the procedural due process in laying the foundation for an administrative case.50 (emphasis and underscoring
supplied)1avvphil
Plainly, our justification for the continuation of the administrative case – notwithstanding Pagano’s resignation –
was her "bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.
Second, we agree with the Ombudsman that "fitness to serve in public office x x x is a question of transcendental
[importance]51" and that "preserving the inviolability of public office" compels the state to prevent the "re-entry [to]
public service of persons who have x x x demonstrated their absolute lack of fitness to hold public
office."52 However, the State must perform this task within the limits set by law, particularly, the limits of
jurisdiction. As earlier stated, under the Ombudsman’s theory, the administrative authorities may exercise
administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly severed his ties
with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to
the law and the public policy behind it.
Lastly, the State is not without remedy against Andutan or any public official who committed violations while in
office, but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or
omissions of a public officer may give rise to civil, criminal and administrative liability. 53 Even if the Ombudsman
may no longer file an administrative case against a public official who has already resigned or retired, the
Ombudsman may still file criminal and civil cases to vindicate Andutan’s alleged transgressions. In fact, here, the
Ombudsman – through the FFIB – filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the
Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the
penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or
forfeiture of any prohibited interest.54
Conclusion
Public office is a public trust. No precept of administrative law is more basic than this statement of what
assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants
to serve their constituencies well.
While we commend the Ombudsman’s resolve in pursuing the present case for violations allegedly committed by
Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that
Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the
Ombudsman’s factual findings.
WHEREFORE, we DENY the Office of the Ombudsman’s petition for review on certiorari, and AFFIRM the
decision of the Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and set
aside the July 30, 2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of Gross
Neglect of Duty.
No pronouncement as to costs.
SO ORDERED.