Accountability of Public Officer Cases

ABAKADA GURO vs. PURISIMA

FACTS:

Republic Act No. 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). It provides a system of rewards and sanctions through the creation of Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board) to BIR and BOC officials and employees if they exceed their revenue targets. It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status.

Petitioners, invoking their right as taxpayers, filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that the limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies.

Respondent contends that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities.

ISSUE:

Whether or Not there is a violation of equal protection clause.

HELD:

Equality protection is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished. When things or persons are different in fact or circumstance, they may be treated in law differently.

The Constitution does not require that things which are different in fact be treated in law as though

they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed.

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC.23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges.

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions – taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.

FRANCISCO M. LECAROZ and LENLIE LECAROZ v. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES

PONENTE: BELLOSILLO, J.:

DOCTRINE: The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor

is elected and qualified, even though it be beyond the term fixed by law.

NATURE: Review of Sandiganbayan Decision

FACTS: Red filed with the Office of the Ombudsman several criminal complaints against Lecaroz father and son arising from the refusal of the two officials to let him assume the position of KB sectoral representative.

Lecaroz father and son, were convicted by the Sandiganbayan of 13 counts of estafa through falsification of public documents. They now seek a review of their conviction as they insist on their innocence.

ISSUES: 1) WON Red had validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then Assemblywoman Reyes; 2) WON the tenure of accused Lenlie as president of the KB and his coterminous term of office as KB representative to the SB had accordingly expired; If yes - WON Lenlie could no longer occupy the office despite the vacancy therein, in a holdover capacity; 3) WON under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie was legally entitled and even mandated to continue in office in a holdover capacity; if not – WON accused Lenlie acted in good faith and committed merely an error of judgment, without malice and criminal intent; 4) WON the accused had committed the crime of falsification within the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they had been convicted required criminal intent and malice as essential elements

HELD: Petition is meritorious. 1) NO. Red had not validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then Assemblywoman Reyes on 27 September 1985. Under the provisions of the Administrative Code then in force, members of the then Batasang Pambansa were not authorized to administer oaths. It was only after the effectivity of RA No. 6733 that members of both Houses of Congress were vested for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at all.

2) The tenure of accused Lenlie as president of the KB and his coterminous term of office as KB representative to the SB had expired. However, Lenlie could occupy the office as president of the KB and his coterminous term of office as KB representative to the SB in a holdover capacity. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, or at least a de facto officer entitled to receive the salaries and all the emoluments appertaining to the position.

3) The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until duly replaced either by the President herself or by the Interior Ministry.

4) Prudence and good faith impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.

FRANCISCO JR. v. HOUSE OF REPRESENTATIVES

FACTS: On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Porceedings, superceding the previous House Impeachment Rules approved by the 11th Congress. On 22 July 2002, the House of Representatives adopted a Resolution, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF). On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices of the Supreme Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." The complaint was endorsed by House Representatives, and was referred to the House Committee on Justice on 5 August 2003 in accordance with Section 3(2) of Article XI of the Constitution. The House Committee on Justice ruled on 13 October 2003 that the first impeachment complaint was "sufficient in form," but voted to dismiss the same on 22 October 2003 for being insufficient in substance. Four months and three weeks since the filing of the first complaint or on 23 October 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by House Representatives against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry

initiated by above-mentioned House Resolution. The second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of Representatives. Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year."

ISSUE/S: Whether the power of judicial review

extends to those arising from impeachment

proceedings.

HELD: The Court's power of judicial review is

conferred on the judicial branch of the government

in Section 1, Article VIII of our present 1987

Constitution. The "moderating power" to "determine

the proper allocation of powers" of the different

branches of government and "to direct the course of

government along constitutional channels" is

inherent in all courts as a necessary consequence of

the judicial power itself, which is "the power of the

court to settle actual controversies involving rights

which are legally demandable and enforceable." As

indicated in Angara v. Electoral Commission, judicial

review is indeed an integral component of the

delicate system of checks and balances which,

together with the corollary principle of separation of

powers, forms the bedrock of our republican form of

government and insures that its vast powers are

utilized only for the benefit of the people for which it

serves. 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 of matters

within its jurisdiction, and is supreme within its own

sphere. But it does not follow from the fact that the

three powers are to be kept separate and distinct

that the Constitution intended them to be absolutely

unrestrained and independent of each other. The

Constitution has provided for an elaborate system of

checks and balances to secure coordination in the

workings of the various departments of the

government. And the judiciary in turn, with the

Supreme Court as the final arbiter, effectively checks

the other departments in the exercise of its power to

determine the law, and hence to declare executive

and legislative acts void if violative of the

Constitution.

The major difference between the judicial power of

the Philippine Supreme Court and that of the U.S.

Supreme Court is that while the power of judicial

review is only impliedly granted to the U.S. Supreme

Court and is discretionary in nature, that granted to

the Philippine Supreme Court and lower courts, as

expressly provided for in the Constitution, is not just

a power but also a duty, and it was given an

expanded definition to include the power to correct

any grave abuse of discretion on the part of any

government branch or instrumentality. There are

also glaring distinctions between the U.S.

Constitution and the Philippine Constitution with

respect to the power of the House of

Representatives over impeachment proceedings.

While the U.S. Constitution bestows sole power of

impeachment to the House of Representatives

without limitation, our Constitution, though vesting

in the House of Representatives the exclusive power

to initiate impeachment cases, provides for several

limitations to the exercise of such power as

embodied in Section 3(2), (3), (4) and (5), Article XI

thereof. These limitations include the manner of

filing, required vote to impeach, and the one year

bar on the impeachment of one and the same

official. The people expressed their will when they

instituted the above-mentioned safeguards in the

Constitution. This shows that the Constitution did

not intend to leave the matter of impeachment to

the sole discretion of Congress. Instead, it provided

for certain well-defined limits, or "judicially

discoverable standards" for determining the validity

of the exercise of such discretion, through the power

of judicial review. There is indeed a plethora of cases

in which this Court exercised the power of judicial

review over congressional action. Finally, there exists

no constitutional basis for the contention that the

exercise of judicial review over impeachment

proceedings would upset the system of checks and

balances. Verily, the Constitution is to be interpreted

as a whole and "one section is not to be allowed to

defeat another." Both are integral components of

the calibrated system of independence and

interdependence that insures that no branch of

government act beyond the powers assigned to it by

the Constitution.

Impeachment; narration of facts. Petitioner urged the Court to look into the narration of facts constituting the offenses vis-à-vis her submissions disclaiming the allegations in the complaints. The SC denied this as that would require the Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question, which the Constitution has left to the sound discretion of the legislature. Ma. Merceditas N. Gutierrez v. The House of Representatives Committee on Justice, et al. G.R. No. 193459, February 15, 2011.

OFFICE OF THE OMBUDSMAN VS CA

On 29 December 1999, twenty- two officials and employees of the Office of the Deputy Ombudsman for the Visayas, led by its two directors, filed a complaint with the Office of the Ombudsman requesting an investigation on the basis of allegations that then Deputy Ombudsman for the

Visayas, herein private respondent Arturo Mojica, committed (1) sexual harassment against Rayvi Padua- Varona, mulcting money from confidential employees: James Alueta and Eden Kiamco and (3) oppression against all employees in not releasing P7,200.00 in benefits of OMB- Visayas employees on the date the said amount was due for release.

Fact-finding investigation was conducted by the Office of the Ombudsman and the report was referred by the Ombudsman to a constituted Committee of Peers which initially recommended that the investigation be converted into one solely for purposes of impeachment.

However, this recommendation was denied by the Office of the Ombudsman and following the stand of the Office of the Ombudsman that the Deputy Ombudsmen and The Special Prosecutor are not removable through impeachment.

On 18 December 2000, despite the expiration of private respondent Mojica's term of office, the Court of Appeals nevertheless rendered the assailed Decision on the grounds of ublic interest. CA ruled that the Deputy Ombudsman is an impeachable officer. Thus, OMB's appeal.

ISSUE:

1. Whether or not the Ombudsman’s Deputies are impeachable

2. Whether or not the Deputy Ombudsman may be held criminally and/or administratively liable

HELD: Order of the CA is REVERSED and SET ASIDE. The complaints in Criminal Case No. OMB-0-00-0616 and Administrative Case No. OMB-ADM-0-00-0316 are REINSTATED and the Office of the Ombudsman is ordered to proceed with the investigation relative to the above cases.

Ombudsman's Deputies Not Impeachable The Deputy Ombudsman is not an impeachable officer. Sec. 2, Article XI of the 1987

Constitution states that “The President, the Vice- President, the members of the Supreme Court, the members of the Constitutional Commissions and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from Office as provided by law, but not by impeachment”.

RECENT JURISPRUDENCE – POLITICAL LAW

Records of the Constitutional Commission, as well as the opinions of leading commentators in Constitutional Law reveal that the term Ombudsman in Sec. 2, Article XI of the 1987 Constitution refer to the rank in itself. The Ombudsman is only one man, not including his Deputies.

Leading legal luminaries on the Constitution are one in their opinion as to whether or not the Deputy Ombudsman is impeachable. All of them agree that the enumeration impeachable officers in Section 2, Article XI of the 1986 Constitution, is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable.

How then to explain our earlier pronouncement in Cuenco v. Fernan, as later cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella which reads: To grant a complaint for disbarment of a Member of the Court during the Member’s incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI [2] of the Constitution.

Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2])… all of whom are constitutionally required to be members of the Philippine Bar?

A dictum is an opinion that does not embody the resolution or determination of the court, and made without argument, or full consideration of the point. Mere dicta are not binding under the doctrine of stare decisis. The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, does Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella, which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits. Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented.

Criminal and Administrative Liability of Deputy Ombudsman As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office.

Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts. Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the former’s retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 f the Anti-Graft and Corrupt Practices Act.

IN RE GONZALEZ Facts: Gonzales was the Tanodbayan or Special Prosecutor. He forwarded a letter-complaint to Justice Fernan. The letter was said to be from concerned employees of the SC (an anonymous

letter).

The letter was originally addressed to Gonzales referring to the charges for disbarment sought by Mr. Miguel Cuenco against Justice Fernan, and asking him (Gonzales) to do something about it.

The Supreme Court furnished a copy to Gonzales, the per curiam Resolution of the SC, dismissing the charges made by Cuenco against Justice Fernan for lack of merit. In that resolution, Cuenco was asked to show cause why he should not be held administratively liable for making serious accusations against Fernan.

Issue: Whether or not a Supreme Court justice can be disbarred during his term of office

Held: A public officer (such as Justice Fernan) who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan, or any other court, with any offense which carries with it the penalty of removal from office.

Another reason why the complaint for disbarment should be dismissed is because under the Constitution, members of the SC may be removed only by impeachment. The above provision proscribes removal from office by any other method. Otherwise, to allow such public officer who may be removed solely by impeachment to be charged criminally while holding his office with an office that carries the penalty of removal from office, would be violative of the clear mandate of the Constitution.

The effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office. But the party convicted shall nevertheless be held liable and subject to prosecution, trial and punishment according to law.

The court is not saying that the members and other constitutional officer are entitled to immunity from liability. What the court is merely saying is that there

is a fundamental procedural requirement that must be observed before such liability ma be determined. A member of the SC must first be removed from office, via the constitutional route of impeachment, and then only May he be held liable either criminally or administratively (that is, disbarment), for any wrong or misbehaviour in appropriate proceedings.

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.

D E C I S I O N

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, mbudsman 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.

Citing Tapiador v. Office of the Ombudsman,[25] the CA declared that the Ombudsman’s power in administrative cases is limited to the recommendation of the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault; accordingly, it has no power to impose the penalty of suspension on Armilla, et al.

LEDESMA v CA (DESIERTO)

G.R. No. 161629

YNARES-SANTIAGO; July 29, 2005

NATURE

Petition for review on certiorari to reverese and set aside CA decision

FACTS

- Atty Ronaldo Ledesma is the chaiman of the 1st

division of the Board of Special Inquiry (BSI) of the Bureau of Immigration and Deportation (BID). Agusto Somalio with the Fact Finding and Intelligence Bureau (FIIB) of the Office of the Ombudsman filed a complaint requesting for an investigation on alleged anomalies surrounding the extension of the Temporary Resident Visas (TRVs) of 2 foreigners. The FIIB investigation revealed 7 other cases of TRV extensions with similar irregularities.

- The FIIB, as nominal complainant filed with Adjudication Bureau (AAB) of the Office of the Ombudsman a formal complaint against the petitioner. Atty. Artherl Caronongan (board member) and Ma. Elena Ang (exec asst) were also charged administratively. The case against the petitioner was treated as both criminal and administative for 9 countsof violationof the Anti-Graft and Corrupt Practices Act for falsification of public documents and 9 counts of Dishonesty, grave Misconduct, Falsification of Public Documents and Gross Neglect of Duty.

- The complaint alleged the ff illegal acts: (a) irregularily in granting TRVs beyond the prescbed period and (b) using photocopied applications for a TRV extension wthout the applicants fixing their signatures to validate the correctness of the information. Ladesma and Coarongan allegedly signed the Memorandum of Transmittal to the Board of Commission (BOC) of the BID, forwarding the applications for TRV extension of several aliens whose papers were questionable.

- Graft Investigation Officer Marlyn Reyes resolved the administrative cases in a resolution recommending that Ledesma be suspended from the service for 1 year for Conduct Prejudicial to the Interest of the Service, that Caronongan be dismissed for being moot and academic and the case against Ang be dismissed for insufficiency of evidence.

- Asst Ombudsman Abelardo Aportadera reviewed the joint resolution which was approved by Ombudsman Desierto.

- Pending the approval by Desierto, he approved the resolution of Graft Investigation Officer Marilou Ancheta-Mejica dismissing criminal charges for insufficiency of evidence.

- Petitioner filed an MFR in the administrative case alleging that the BOC which reviewed the applications for extension approved theTRVs in question thereby effectively declared the applicationd regular and in order and waived any infurmity thereon.

- Graft Officer Reyes recommended the denial of the MFR which was approved by Desierto but reduced the suspension from 1yr to 9mos without pay.

- Petitionerfiled a petition for review with the CA with a preliminary prohobitory mandatory injunction and/or temporary restraining order to enjoin public respondents from the implementation of the order of suspension. CA issued the TRO.

- CA affirmed the suspension but reduced it to 6mos and 1day without pay. MFR was denied.

ISSUE/S

1. WON CA manifestly overlooked relevant facts which would have justified a conclusion in favor of the petitioner

2. WON CA erred in finding that the ombudsman is not merely advisory on the Bureau of Immigration

3. WON CA failed to consider that the Ombudsmand's resolution finding Ledesma administratively liable constitutes an indirect encroachment intot he power of the Bureau of Immigration over immigration matters

HELD

1. NO

Reasoning Petitioner undermines his position in the BID and his role in the processing of the subject applications. The BSI reviews the applications and when it finds them in order, executes a Memorandum of Tranmittal to the BOC certifying to the regularity of the application.

All heads of offices have to rely to a reasonable extent on their subordinated. He cannot feign good faith when the irregularities of the TRV extention application were patently clear on its face. The

contention that the BOC's approval of the defective application for TRV extension cured any infirmaties absolved petitioner's administrative lapse.

The main thrust of the case is to determine whether petitioner committedany misconduct, nonfeasance, misfeasance or mal feasance in the performance of his duties.

2and3. NO

Ratio The creation of the Office of the Ombudsman is a unique feature of the 1987 Constitution. The Ombudsman and his deputies are mandated to act promptly on complaints filed in any form or manner against officers or employeed of the Government. Foremost among its powers is the authority to investigate and prosecute public officers and employees.

Reasoning Ledesma argues that to uphold CA's ruling expands authority granted by the constitution to the Office of the Ombudsman.

The authority of the Ombudsman to conduct administrative investigations as in the present case is settled. Section 19 of RA 6770 providesa that the Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (a) Are contrary to law or regulation; (b) Are unreasonable, unfair, oppressive or discriminatory; (c) Are inconsistent with the general course of an agency’s functions, though in accordance with law; (d) Proceed from a mistake of law or an arbitrary ascertainment of facts; (e) Are in the exercise of discretionary powers but for an improper purpose; or (f) Are otherwise irregular, immoral or devoid of justification.Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only “recommend” the removal of the public official or employee found to be at fault, to the public official concerned. The Solicitor General and the Office of the Ombudsman argue that the word “recommend” must be taken in conjunction with the phrase “and ensure compliance therewith” and not its literal meaning. The Constitutional Commission left to Congress to empower the Ombudsman with prosecutorial functions which it did when RA 6770 was enacted.Disposition WHEREFORE, the instant petition is DENIED.

ESTARIJA v RANADA

NATURE

Petition for review on certiorari

FACTS

Captain Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority (PPA), was found guilty by the Ombudsman of dishonesty and grave misconduct for having been demanding monies for the approval and issuance of berthing permits and monthly contribution from the Davao Pilots Association, Inc. (DPAI). He was dismissed from the service.

ISSUES

1. WON there is substantial evidence to hold petitioner liable for dishonesty and grave misconduct

2. WON the power of the Ombudsman to directly remove, suspend, demote, fine or censure erring officials is unconstitutional since the under the 1987 Constitution, the Ombudsman’s administrative authority is merely recommendatory

HELD

1. YES.

Reasoning:

a. Estarija was caught red-handed in an entrapment operation. When Estarija went to the office of Adrian Cagata to pick up the money, his doing so was indicative of his willingness to commit the crime.

b. In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence, that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

2. NO.

Rep. Act No. 6770 provides for the functional and structural organization of the Office of the

Ombudsman. In passing Rep. Act No. 6770, Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by public officers and employees to make him a more active and effective agent of the people in ensuring accountability in public office. Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement his own actions.

Reasoning

a. Jurisprudence

- In Ledesma v. Court of Appeals, we held that Rep. Act No. 6770 is consistent with the intent of the framers of the 1987 Constitution. They gave Congress the discretion to give the Ombudsman powers that are not merely persuasive in character. Thus, in addition to the power of the Ombudsman to prosecute and conduct investigations, the lawmakers intended to provide the Ombudsman with the power to punish for contempt and preventively suspend any officer under his authority pending an investigation when the case so warrants. He was likewise given disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies except members of Congress and the Judiciary.

b. intent of the framers of the Constitution

- Based on the record of the Constitutional Commission, they clarified that the powers of the Ombudsman are not exclusive. They are not foreclosing the possibility that in the future, the Assembly may have to give additional powers to the Ombudsman.

3. The Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary.

DISPOSITION The petition is DENIED.

BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial Court, Antique, petitioner, vs.HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A. ABIERA, respondents.

G.R. No. 102781. April 22, 1993.

FACTS:

Respondent Napoleon A. Abiera of the Public Attorney's Office alleged that petitioner had falsified his Certificate of Service by certifying "that all civil and criminal cases which have been submitted for decision or determination for a period of 90 days have been determined and decided on or before January 31, 1998," when in truth and in fact, petitioner knew that no decision had been rendered in five (5) civil and ten (10) criminal cases that have been submitted for decision.

Respondent Abiera further alleged that petitioner similarly falsified his certificates of service for the months of February, April, May, June, July and August, all in 1989; and the months beginning January up to September 1990, or for a total of seventeen (17) months.

Petitioner contends that that the Ombudsman has no jurisdiction over said case since the offense charged arose from the judge's performance of his official duties, which is under the control and supervision of the Supreme Court. Furthermore, the investigation of the Ombudsman constitutes an encroachment into the Supreme Court's constitutional duty of supervision over all inferior courts.

ISSUE:

Whether the investigation made by the Ombudsman constitutes an encroachment

into the SC’s constitutional duty of supervision over all inferior courts.

RULE:

Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges' and court personnel's compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers.

APPLICATION:

A judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State under the Revised Penal Code for his felonious act.

In the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers.

In fine, where a criminal complaint against a Judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said Judge or court employee had acted within the scope of their administrative duties.

CONCLUSION:

WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby

directed to dismiss the complaint filed by public respondent Atty. Napoleon A. Abiera and to refer the same to this Court for appropriate action.

JUDGE CAOIBES, Jr vs. OMBUDSMAN

G.R. No. 132177, July 19, 2001

Petitioner: Judge Jose Caoibes, Jr.

Respondents: Ombudsman and Judge Florentino M. Alumbres

CASE: Petitioner Jose F. Caoibes, Jr., Presiding Judge of Branch 253 of the RTC of Las Piñas City, seeks the review of the ff orders of the Office of the Ombudsman:

(1) Order dated August 22, 1997 (2) Order dated December 22, 1997

FACTS:

May 23, 1997, Respondent Alumbres, Presiding Judge of Branch 255 of the RTC of Las Pinas City, filed before the Office of the Ombudsman, a Criminal Complaint for physical injuries, malicious mischief for the destruction of complainant’s eyeglasses, and assault upon a person in authority alleging that:o He requested petitioner on May 20, 1997 to

return the executive table he borrowed from respondent;

o Petitioner did not answer so respondent reiterated his request but before he could finish talking, petitioner blurted "Tarantado ito ah," and boxed him at his right eyebrow and left lower jaw so that the right lens of his eyeglasses was thrown away, rendering his eyeglasses unserviceable;

o Respondent had the incident blottered with the Las Piñas Police Station. He prayed that criminal charges be filed before the Sandiganbayan against the petitioner.

June 13, 1997, Respondent Judge lodged an administrative case with the SC praying for the dismissal of petitioner from the judiciary on the ground of grave misconduct or conduct unbecoming a judicial officer using the same facts as above.

June 25, 1997, the Office of the Ombudsman required petitioner to file a counter-affidavit within 10 days from receipt thereof. o Petitioner filed on July 7, 1997 an "Ex-Parte

Motion for Referral to the Honorable Supreme Court," praying that the Office of the Ombudsman hold its investigation of the case, and refer the same to the SC which is already investigating what transpired on May 1997.

o Petitioner contended that the SC, not the Office of the Ombudsman, has the authority to make a preliminary determination of the respective culpability of petitioner and respondent Judge who, both being members of the bench, are under its exclusive supervision and control.

August 22, 1997, the Office of the Ombudsman denied the motion for referral to the SC stating that it is within its jurisdiction to investigate on the criminal charges.

Petitioner moved for reconsideration of the foregoing order that the criminal case be referred to the SC or wait for the decision of the administrative case. This is to avoid an absurd case wherein the Office of the Ombudsman files criminal charges while SC declares him without fault.

December 22, 1997, the Office of the Ombudsman denied the motion for reconsideration and required petitioner to submit a counter-affidavit within an inextendible period of five (5) days from receipt thereof.

ISSUE/HELD:

WON the Ombudsman has the jurisdiction over the administrative case between the two judges. NO, the Ombudsman DOES NOT have jurisdiction over the case.

RATIO:

Section 6, Art. VIII of the Constitution: SC is vested with exclusive administrative supervision over all courts and its personnel.

Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter.

The Ombudsman is duty bound to refer to the SC all cases against judges and court personnel

filed before it for determination as to whether and administrative aspect is involved therein.

The Ombudsman cannot dictate to, and bind the Court, to its findings that a case before it does or does not have administrative implications. o To do so is to (1) deprive the Court of the

exercise of its administrative prerogatives and (2) to arrogate unto itself a power not constitutionally sanctioned. This is a dangerous policy which impinges on judicial independence.

In Maceda vs. Vasquez, it is only the SC that can oversee the judges’ and court personnel’s compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers.

DECISION:

WHEREFORE, the petition for certiorari is hereby GRANTED. The Ombudsman is hereby directed to dismiss the complaint filed by respondent Judge Florentino M. Alumbres and to refer the same to this Court for appropriate action.

LASTIMOSA v VASQUEZ243 SCRA 497MENDOZA; April 6, 1995

NATUREPetition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman with respect to the two proceedings: complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime and a charge for indirect contempt.

FACTS- February 18, 1993 > Dayon, public health nurse at Cebu, filed with the Office of the Ombudsman-Visayas a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio Ilustrisimo. After an investigation, the investigating officer found no prima facie evidence and recommended its dismissal. But the Ombudsman, Vasquez, disapproved the recommendation and directed that Mayor Ilustrisimo be charged with attempted rape.

Deputy Ombudsman for Visayas Mojica referred the case to Cebu Provincial Prosecutor Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao City.” The case eventually went to First Assistant Provincial Prosecutor Gloria G. Lastimosa.- Lastimosa conducted a PI and found that only acts of lasciviousness had been committed. With the approval of Kintanar, she filed an information for acts of lasciviousness. As no case for attempted rape had been filed by the Prosecutor's Office, Mojica ordered Kintanar and Lastimosa to show cause why they should not be punished for contempt for "refusing and failing to obey the lawful directives" of the Office of the Ombudsman. - Mojica issued an order placing Lastimosa and Kintanar under preventive suspension for a period of six (6) months as approved by Ombudsman Vasquez - September 6, 1994 > Lastimosa filed the petition for certiorari and prohibition to set aside the orders directing them to file of the action (for Attempted Rape) against the Mayor; instructing Lastimosa and Kintanar to explain in writing why they should not be punished for indirect Contempt of the Office of the Ombudsman "for refusing and failing to file the appropriate Information for Attempted Rape against the Mayor; stating that the Office of the Provincial Prosecutor to comply with the directive of the Office of the Ombudsman that a charge for attempted rape be filed against the Mayor in recognition of the authority of said Office; approving of the placement of Lastimosa and Kintanar under preventive suspension for a period of six (6) months, without pay; directing Assistant Regional State Prosecutor to implement preventive suspension; and designating Assistant Regional State Prosecutor Concepcion as Acting Provincial Prosecutor of Cebu- Petitioner claims: Office of the Ombudsman and the prosecutor's office have concurrent authority to investigate public officers or employees and that when the former first took cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the latter. In any event, the Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office. Therefore the Office of the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders and to cite them for indirect contempt for such refusal.

ISSUES

1. WON the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo2. WON Office of the Ombudsman has the power to punish for contempt and impose preventive suspension

HELD1. YESRatio When a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) decision. Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman.Reasoning- Ombudsman is authorized to call on prosecutors for assistance. Sec 31 of the Ombudsman Act of 1989 (RA6770) provides: Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate of deputize 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 as herein provided shall be under his supervision and control.Obiter - The office of the Ombudsman has the power to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient." This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected with, or arise from, the performance of his official duty. It is enough that the act or omission was committed by a public official. Hence, the crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute.2. YES- Sec 15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein."

- Suspension is not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the opportunity to prove his innocence. Disposition Petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIEDCONCERNED OFFICALS OF MWSS v VASQUEZ, PLDPPMA

NATURE

Petition for certiorari with prayer for preliminary injunction

FACTS

- MWSS conducted bidding for two projects concerning its water distribution system in Metro Manila. The Philippine Large Diameter Pressure Pipes Manufacturers’ Association (PLDPPMA) then questioned the award of the projects with the Office of the Ombudsman (Vasquez), charging an “apparent plan” on the part of the MWSS to favor certain suppliers (those offering fiberglass pipes over those offering steel pipes) through the technical specifications, and urging the Ombudsman to conduct an investigation thereon and hold in abeyance the award of the contracts. The Ombudsman then issued the assailed order, directing the MWSS to: “set aside the recommendation of an MWSS committee to award the contact to a contractor offering fiberglass pipes”, and “award the subject contract to a complying and responsive bidder”

- the officials of MWSS filed the instant petition with the SC, contending that the ombudsman acted beyond the competence of his office when he assumed jurisdiction over the complaint, when the same is clearly among the excepted cases enumerated in the Ombudsman Act. Also, that the Ombudsman acted with grave abuse of discretion by

arbitrarily and capriciously interfering with the exercise of sound discretion of the MWSS

ISSUE

1. WON the Ombudsman had jurisdiction to take cognizance of the complaint filed by the PLDPPMA and correspondingly issue the challenged orders

HELD

1. NO

Ratio The

Reasoning On the basis of all the provisions regarding the Office of the Ombudsman, Solicitor-General insists that the authority of the Ombudsman is sufficiently broad enough to cloth it with sufficient power to look into the alleged irregularities in the bidding conducted by the MWSS

- “The reason for the creation of the Ombudsman in the 1987 Consti and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses 'all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.”

- the powers, functions and duties of the Ombudsman have generally been categorized into: Investigatory Power; Prosecutory Power; Public Assistance Functions; Authority to Inquire and Obtain Information; and Function to Adopt, Institute

and Implement. This case concerns the investigatory power and Public Assistance Duties of the Ombudsman

- the Ombudsman, in resolving the complaint, considered 3 issues: (1) WON the technical specifications prescribed by MWSS in the projects have been so designed as to really favor Fiberglass Pipes-Contractors/ Bidders; (2) WON the MWSS has the technical knowledge and expertise with fiberglass pipes; and (3) WON the contractors and local manufacturers of fiberglass pipes have the experience and qualification to undertake the projects. While the broad authority of the Ombudsman to investigate any act or omission which "xxx appears illegal, unjust, improper, or inefficient" may be yielded, it is difficult to equally concede, however, that the Constitution and the Law have intended to likewise confer upon it veto or revisory power over an exercise of judgment or discretion by an agency or officer upon whom that judgment or discretion is lawfully vested. It seems that the Ombudsman, in issuing the challenged orders, has not only directly assumed jurisdiction over, but likewise preempted the exercise of discretion by, the Board of Trustees of MWSS. Indeed, the recommendation of the MWSS Committee to award the contract appears to be yet pending consideration and action by the MWSS Board of Trustees.

We can only view the assailed order to be more of an undue interference in the adjudicative responsibility of the MWSS Board of Trustees rather than a mere directive requiring the proper observance of and compliance with the law.

Disposition Petition is granted. Order annulled and set aside.

ISMAEL G. KHAN, JR. and WENCESLAO L. MALABANAN, petitioners, vs.OFFICE OF THE OMBUDSMAN, DEPUTY OMBUDSMAN (VISAYAS), ROSAURO F. TORRALBA*

and CELESTINO BANDALA**, respondents.

D E C I S I O N

CORONA, J.:

This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of whether public respondents Deputy Ombudsman (Visayas) and the Ombudsman have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA) 30191 (the Anti-Graft and Corrupt Practices Act).

In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders.

Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019.

In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners' omnibus motion to dismiss.

On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the Government Service Insurance System (GSIS).4 Therefore, it became a government-owned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan.5

On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government."

The dispositive portion of the Deputy Ombudsman's order read:

WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO DISMISS, the same is hereby DENIED and petitioners are hereby ordered to submit their answer within ten (10) days from receipt hereof.6

xxx xxx xxx

Petitioners appealed the order to the Ombudsman. There, they raised the same issues. Treating the appeal as a motion for reconsideration, the Ombudsman dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC, hence, he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's ruling that Quimpo was applicable to petitioners' case.

In this petition for certiorari, with prayer for issuance of a temporary restraining order, petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against them although they were officers of a private corporation and not "public officers."8

In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; (2) Quimpo does not apply to the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law.

We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation of RA 3019.

JURISDICTION OF THE OMBUDSMAN OVER GOCCSIS CONFINED ONLY TO THOSE WITH ORIGINALCHARTERS

The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2) provides:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

xxx xxx xxx

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (italics supplied)

xxx xxx xxx

Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman.

In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners.

Quimpo Not Applicableto the Case at Bar

Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan had jurisdiction over

them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC) acquired its shares.

In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here.

In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on oil."11 The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that the government acquired the controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS. No governmental functions at all were involved.

Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article XIII, Section 6:

SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as the Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. (italics supplied)

The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer only to those with original charters.12

Petitioners, as then Officers ofPAL, were not Public Officers

Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied definitions and

concepts are found in different statutes13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the term "public officers":

A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.

xxx xxx xxx

Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not.

The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; − that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 (italics supplied)

From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign executive, legislative or judicial functions.17 The explication of the term is also consistent with the Court's pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to carry out governmental functions.

In any event, PAL has since reverted to private ownership and we find it pointless to scrutinize the implications of a legal issue that technically no longer exists.

WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE and ANNULLED.

SO ORDERED.

GARCIA-RUEDA vs. PASCASIO

FACTS:Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of "unknown cause," according to officials of the UST Hospital.

Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to conduct an autopsy on her husband's body. Consequently, the NBI ruled that Florencio's death was due to lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the Office of the City Prosecutor.

During the preliminary investigation, what transpired was a confounding series of events which we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon O.

Carisma, who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the "interest of justice and peace of mind of the parties," recommended that the case be re-raffled on the ground that Prosecutor Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor Dimagiba.

Pending the resolution of petitioner's motion for reconsideration regarding Prosecutor Dimagiba's resolution, the investigative "pingpong" continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 3 against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the Office of the Ombudsman.

However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the complaint for lack of evidence.

In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019.

ISSUE: Whether or not expert testimony is necessary to prove the negligent act of the respondent.

RULING: In accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that petitioner should have exercised.

The better and more logical remedy under the circumstances would have been to appeal the resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department of Justice's Order No. 223, otherwise known as the "1993 Revised Rules on Appeals From Resolutions In Preliminary Investigations/Reinvestigations," as amended by Department Order No. 359, Section 1 of which provides:

Sec. 1. What May Be Appealed. — Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a

criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: "The Secretary of Justice may reverse, affirm or modify the appealed resolution." On the other hand, "He may motu proprio or on motion of the appellee, dismiss outright the appeal on specified grounds."

In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in dismissing the complaint against the Prosecutors and this Court will not interfere with the same.

Petition is dismissed.

FRIVALDO vs. COMELEC

Facts: Petitioner Juan G. Frivaldo was proclaimed governor-elect and assume office in due time. The League of Municipalities filed with the COMELEC a petition for annulment of Frivaldo’s election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States. Frivaldo admitted the allegation but pleaded the special and affirmative defenses that his naturalization was merely forced upon himself as a means of survival against the unrelenting prosecution by the Martial Law Dictator’s agent abroad.

Issue: Whether or not Frivaldo was a citizen of the Philippines at the time of his election.

Held: No. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

Even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer’s entire tenure.

Frivaldo declared not a citizen of the Philippines and therefore disqualified from serving as a Governor of the Province of Sorsogon.

In the certificate of candidacy he filed, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States.

The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright.

There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime.

The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively

claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States.

If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation.

It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings.

Gutierrez Jr, Concurring:I concur in the pragmatic approach taken by

the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province. It is an established rule of long standing that the period fixed by law for the filing of a protest whether quo warranto or election contest is mandatory and jurisdictional.

As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary

proceedings for the settlement of such disputes. The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, the Court should allow a person like Estuye or his league to bring the action.

I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, I believe that the ten-day period should be applied strictly.

The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice.

Mercado vs. Manzano G.R. No. 135083, May 26, 1999

Dual allegiance. vs. Dual citizenship Effect of filing certificate of candidacy:

repudiation of other citizenship

FACTS:

Manzano and Mercado are vice-mayoral candidates Makati City in the May 11, 1998 elections. Manzano got the highest number votes while Mercado bagged the second place. However, Manzano’s proclamation was suspended in view of a pending petition for disqualification on the ground that he is an American citizen.

In his answer, Manzano admitted that he is registered as a foreigner with the Bureau of Immigration and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States (San Francisco, CA) on Sept. 14, 1955 and is

considered an American citizen under US laws (jus soli). But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.

The Second Division of the COMELEC granted the petition and cancelled Manzano’s certificate of candidacy on the ground that he is a dual citizen. Under the Local Government Code (sec. 40), dual citizens are disqualified from running for any position.

The COMELEC en banc reversed the division’s ruling. In its resolution, it said that Manzano was both a US citizen and a Filipino citizen. It further ruled that although he was registered as an alien with the Philippine Bureau of Immigration and was using an American passport, this did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the US. Moreover, the COMELEC found that when respondent attained the age of majority, he registered himself as a Philippine voter and voted as such, which effectively renounced his US citizenship under American law. Under Philippine law, he no longer had US citizenship.

Hence, this petition for certiorari.

ISSUES:

Whether or not Manzano was no longer a US citizen

Whether or not Manzano is qualified to run for and hold elective office

HELD:

DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

Dual Citizenship vs. Dual Allegiance

To begin with, dual citizenship is different from dual

allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

1. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;

2. Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers’ country such children are citizens of that country;

3. Those who marry aliens if by the laws of the latter’s country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition.

LGC prohibits “Dual Allegiance” not “Dual Citizenship”

The phrase “dual citizenship” in the LGC must be understood as referring to “dual allegiance.” Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with

dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it would suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states.

By Electing Philippine Citizenship, the Candidate forswear Allegiance to the Other Country

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment.

PETITIONER’S ELECTION OF PHILIPPINE CITIZENSHIP

The COMELEC en banc’s ruling was that Manzano’s act of registering himself as a voter was an effective renunciation of his American citizenship. This ruling is in line with the US Immigration and Nationality Act wherein it is provided that “a person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory.” But this provision was declared unconstitutional by the US Supreme Court. Nevertheless, our SC held that by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship.

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith

and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent’s oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfil his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship.

CAASI V CA (1990)FACTS:•Miguel won as Mayor of Bolinao. Caasi, a rival candidate, objected to Miguel’s qualifications on the ground that the latter was a green card holder, hence a permanent resident of America and not of Bolinao. (COMELEC dismissed the contest, holding that the possession of a green card does not establish Miguel’s abandonment of his Philippine residence)•When Miguel returned to the Philippines in November 1987,he stayed in Bolinao for only three (3) months before the elections on January 18, 1988.

ISSUE: WON Miguel is a resident of Bolinao, and not US.

HELD:Miguel lost his Philippine residence.• The law requires that the candidate who is a green cardholder must have waived his status as a permanent resident or immigrant of a foreign country. Miguel’s act of filing a certifícate of candidacy for elective office in the Philippines did not itself constitute a waiver of his status as a permanent resident or immigrant of the US.• There must be some other act independent of and prior to the filing of his candidacy. No evidence that Miguel waived his status as green card holder before he ran for mayor.• Local Gov’t Code requires residence of one (1) year in the municipality (to get acquainted with the place’s condition).• Omnibus Election Code has a policy of banning Philippine citizens with dual loyalties and allegiance.

PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE vs DESIERTO, 528 SCRA 9 (G.R. No. 130140. October 25, 1999)

FACTS:On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and one representative each from the Office of the Executive Secretary, Department of Finance, Department of Justice, Development Bank of the Philippines, Philippine National Bank, Asset Privatization Trust, Government Corporate Counsel, and the Philippine Export and Foreign Loan Guarantee Corporation as members. In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated 15 July 1993, the COMMITTEE reported that the Philippine Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of the twenty-one corporations which obtained behest loans. On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn complaint against the Directors of PSI namely, Jose Z. Osias, Pacifico E. Marcos, Eduardo V. Romualdez,

Fernando C. Ordoveza, and Juanito Ordoveza; and the Directors of the Development Bank of the Philippines who approved the loans for violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, otherwise known as Anti-Graft and Corrupt Practices.

ISSUE:Does the imprescriptibility of the right of the State to recover ill-gotten wealth apply to both civil and criminal cases?

RULING:No. The so-called imprescriptibility as provided in Section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth, and not to criminal cases, such as the complaint against the respondents in OMB-0-96-0968. This is clear from the proceedings of the Constitutional Commission of 1986. Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of Section 3, R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is Section 2 of Act No. 3326, as amended, which provides, “Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and institution of judicial proceedings for its investigation and punishment.” In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the “beneficiaries of the loans.” Thus, the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.Art 12.

URBANO v CHAVEZ

FACTS: Sometime in 1988, the petitioners Urbano and Acapulco, instituted a criminal case against

Secretary Luis Santos of the Department of Local Government as well as Sectoral Representatives Pacifico Conol and Jason Ocampos, Jr. of the Sangguniang Panlungsod of Tangub City, for alleged violation of the provisions of the Anti-Graft and Corrupt Practices Act. The complaint against them was filed with the Office of the Ombudsman. The Office of the Solicitor General, through Solicitor General Francisco Chavez entered his appearance as counsel for the said respondents as far as the preliminary investigation of the case is concerned. The said petitioners seek to enjoin the Solicitor General and his associates from acting as counsel for the said respondents in the course of the preliminary investigation. The said petitioners submit that in the event that the corresponding information is filed against the said respondents with the Sandiganbayan and a judgment of conviction is rendered by the said court, the appearance of the Office of the Solicitor General on behalf of the said respondents during the preliminary investigation will be in conflict with its role as the appellate counsel of the People of the Philippines.

ISSUE: Can the Office of the Solicitor General represent a public officer or employee in the preliminary investigation of a criminal action against him or in a civil action for damages against him? YES

HELD: The Court held that the Office of the Solicitor General can represent the public official at the preliminary investigation of his case, and that if an information is eventually filed against the said public official, the said Office may no longer represent him in the litigation. The rationale behind this rule is that the said Office may no longer represent him considering that its position as counsel for the accused will be in direct conflict with its responsibilities as the appellate counsel of the People of the Philippines in all criminal cases.

The Office of the Solicitor General has no authority to represent Solicitor General Chavez in

the civil suit for damages filed against him in the Regional Trial Court arising from allegedly defamatory remarks uttered by him. He may appear in his own defense in his private capacity in the action for damages against him. The services of private counsel may also be availed of. Certainly, the Office of the Solicitor General can not assume a responsibility in defense of such public officials beyond its statutory authority.

GLORIA v. COURT OF APPEALS

PONENTE: MENDOZA, J.:

DOCTRINE:

NATURE:

FACTS: Private respondents are public school teachers. On various dates in September and October 1990, during the teachers’ strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the lapse of their 90-day suspension and private respondents were found guilty as charged.

On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang)

guilty only of violation of reasonable office rules and regulations by failing to file applications for leave of absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them reinstated to their former positions.

Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the payment of private respondents’ salaries during the period of their appeal. His motion was, however, denied by the appellate court in its resolution of October 6, 1997. Hence, this petition for review on certiorari.

ISSUE/S: There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (§51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (§47(4)).

Preventive suspension pending investigation is not a penalty.i[10] It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation

respondent is found innocent of the charges and is exonerated, he should be reinstated.

A. No Right to Compensation for Preventive Suspension

Pending Investigation Even if Employee is Exonerated

Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances, and other benefits “beyond the ninety (90) day preventive suspension.” In other words, no compensation was due for the period of the preventive suspension pending investigation but only for the period of preventive suspension pending appeal in the event the employee is exonerated.

The separate opinion of Justice Panganiban argues that the employee concerned should be paid his salaries after his suspension.

The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec. 35 read:

Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of suspension of the respondent,

the respondent shall be reinstated in the service. If the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension.ii[11]

However, the law was revised in 1975 and the provision on the payment of salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read:

Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

This provision was reproduced in §52 of the present Civil Service Law. It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be “without pay.” Sec. 24 reads:

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

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. This conclusion is in accord with the rule of statutory construction that -

As a rule, the amendment by deletion of certain words or phrases in a statute indicates

that the legislature intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction different from that previous to its amendment.iii[12]

The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of salaries for the preventive suspension pending investigation.

First, it says that to deny compensation for the period of preventive suspension would be to reverse the course of decisions ordering the payment of salaries for such period. However, the casesiv[13]

cited are based either on the former rule which expressly provided that “if the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension”v[14] or that “upon subsequent reinstatement of the suspended person or upon his exoneration, if death should render reinstatement impossible, any salary so withheld shall be paid,”vi[15] or on cases which do not really support the proposition advanced.

Second, it is contended that the exoneration of employees who have been preventively suspended is proof that there was no reason at all to suspend them and thus makes their preventive suspension a penalty.

The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechem’s A Treatise on the Law of Public Offices and Officers as follows:

§864. Officer not entitled to Salary during Suspension from Office. - An officer who has been lawfully suspended from his office is not entitled to compensation for the period during which he was so suspended, even though it be subsequently determined that the cause for which he was suspended was insufficient. The reason given is “that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services.”vii[16]

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that “payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.”viii[17]

The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered

“unjustified,” even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the law provides that the employee shall be automatically reinstated.

Third, it is argued in the separate opinion that to deny employees salaries on the “frivolous” ground that the law does not provide for their payment would be to provide a “tool for the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave administrative offenses.” Indeed, the possibility of abuse is not an argument against the recognition of the existence of power. As Justice Story aptly put it, “It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of decision, in the last resort, must rest somewhere - wherever it may be vested it is susceptible of abuse.”ix[18] It may be added that if and when such abuse occurs, that would be the time for the courts to exercise their nay-saying function. Until then, however, the public interest in an upright civil service must be upheld.

Finally, it is argued that even in the private sector, the law provides that employees who are unjustly

dismissed are entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such employees of “full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.”x[19] In the case of the public sector, as has been noted, the provision for payment of salaries during the preventive suspension pending investigation has been deleted.

B. Right to Compensation for Preventive Suspension

Pending Appeal if Employee is Exonerated

But although we hold that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.

Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should

be reinstated with full pay for the period of the suspension. Thus, §47(4) states that respondent “shall be considered as under preventive suspension during the pendency of the appeal in the event he wins.” On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal.

It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the government’s theory would be to make the administrative decision not only executory but final and executory. The fact is that §47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, §2 of the Rules of Court. Rule 39, §5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages as equity and justice may require.

Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or dismissal shall be immediately executory and that if the respondent appeals he shall be considered as being merely under preventive suspension if eventually he prevails is taken from §37 of the Civil

Service Decree of 1975 (P.D. No. 807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner of Civil Service could order the immediate execution of an administrative decision in the interest of the public service.xi[20] Nor was there provision for immediate execution of administrative decisions ordering dismissal or suspension in §695 of the Administrative Code of 1917, as amended by C.A. No. 598, §1.xii[21] Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in which employees were found to be innocent of the chargesxiii[22] or their suspension was held to be unjustified, because the penalty of suspension or dismissal was executed without a finding by the Civil Service Commissioner that it was necessary “in the interest of the public service.”xiv[23] On the other hand, payment of back salaries was denied where it was shown that the employee concerned was guilty as charged and the immediate execution of the decision was ordered by the Civil Service Commissioner “in the interest of the public service.”xv[24]

Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot be unjustified. To be entitled to such compensation, the employee must not only be found innocent of the charges but his suspension must likewise be

unjustified. But though an employee is considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the suspension was imposed.xvi[25]

II. Private Respondents Entitled to Back Salaries

Although Found Guilty of Violation of Office Rules and

Regulations and Reprimand

Private respondents were exonerated of all charges against them for acts connected with the teachers’ strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated:

With respect to petitioner Rodolfo Mariano, payment of

his backwages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service.

However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the “mass actions” but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither

did he file an application for leave covering such absences.

Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service.xvii

[26]

In Jacinto v. Court of Appeals,xviii[27]

a public school teacher who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes.

Petitioner Secretary of Education contends, however, that respondents Abad, Bandigas, and Somebang signed a letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service Commission gave no weight to this letter in view of individual letters written by the three citing reasons for their absences, to wit: Abad, because she decided to stay home to correct student papers; Bandigas, because she had to accompany her brother to the Commission on Immigration, and

Somebang because of “economic reasons.” Petitioner did not appeal from this ruling. Hence, he is bound by the factual findings of the CSC and the appellate court.

WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries to private respondents shall be computed from the time of their dismissal/suspension by the Department of Education, Culture, and Sports until their actual reinstatement, for a period not exceeding five years.

Quimbo vs. Gervacio

466 SCRA 277

August 9, 2005 CARPIO MORALES

Nature: Petition for review on certiorari

FACTS

-Quimbo, the Provincial Engineer of Samar, was administratively charged for HARASSMENT AND OPPRESSION by Padoan, a general foreman who was detailed to the Motor Pool Division, Provincial Engineering by then Prov. Gov. Quimbo was placed under preventive suspension w/o pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond 6m. He began serving it on March 18, 1998 but it was lifted April 27, 1998 after presenting 2 witnesses on direct examination.

*OFFICE OF DEPUTY OMBUDSMAN: GUILTY of OPPRESSION, suspended from office for 8 months w/o pay. Approved by Ombudsman. MR DENIED. Elevated to CA

*CA: GUILTY OF SIMPLE MISCONDUCT, suspension of 2 months w/o pay.

-CA deci became final so Ombudsman ordered Provincial Governor its implementation. Quimbo filed MR/Motion for modification of said order, calling to attention the fact that he was on preventive suspension from March 18 to June 1, 1998 (so in effect, he wanted his 2m17d suspension previously served to be credited for his penalty, thus he won’t serve it anymore)

-Provincial Governor sought clarification w/Ombudsman. *Ombudsman clarified that since preventive suspension is not a penalty, but a preliminary step in the investigation. If investigated then found guilty, imposition of penalty warranted. Quimbo appealed to CA.

*CA: dismiss petition. AFFIRM OMBUDSMAN

ISSUE: WON the preventive suspension should be credited for his penalty

HELD: NO. Preventive suspension is not a penalty. Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension.

-this is EXPRESSLY PROVIDED UNDER SEC25, RULE XIV:

SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty.

NATURE OF PREVENTIVE SUSPENSION: merely a preventive measure, a preliminary step in an administrative investigation

-purpose: prevent accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper w/ records w/c may be vital in the prosecution of the case against him

-not a penalty: RULE XIV, Section 21, OMNIBUS RULES IMPLEMENTING BOOK V OF THE ADMIN CODE

ON NON-APPLICATION OF GLORIA: It involves 2 kinds of preventive suspension which is relevant in determining

>the entitlement of the employee to compensation during the period of suspension

> the crediting of preventive suspension to the final penalty of suspension

PENDING INVESTIGATION PENDING APPEAL(Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987])

if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law)

Not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation

A penalty, BUT:

*if subsequently exonerated: considered under preventive suspension, should be reinstated w/ full pay for period of suspension

*if conviction affirmed: period of suspension becomes part of final penalty of suspension (so credited)

>>>as QUIMBO’s suspension is pending investigation,IT CANNOT BE CREDITED TO FORM PART OF THE FINAL PENALTY OF SUSPENSION

NON-APPLICATION OF CREDITING IN CRIMINAL LAW: Not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit.

NONAPPLICATION OF EQUITY: law expressly provides that rules on crediting of preventive suspension to final penalty of suspension is not allowed.

Disposition: DENIED

GONZALES VS CHAVESIn its pleading captioned "Clarification/Compliance" dated February 17, 1992, the Office of the Solicitor General brings to light what it considers as "misimpressions" alleged in the petition and upon which the Court based its decision of February 4, 1992. With its avowal to abide by the said decision, the OSG manifests that it would no longer file a motion for reconsideration but points out that the decision "engenders 'impracticalities' and 'impossibilities' in terms of successful prosecution of the PCGG cases by lawyers who at this stage must have `mastery of the cases,' and no amount of motion may remove these realities." Hence, after a conference with the PCGG, the OSG avers, the Solicitor General "pursuant to law will retain/authorize/deputize as his special attorneys lawyers who have at this stage already gained 'mastery of the cases' as recommended/requested by PCGG and/or in the discretion of the Solicitor General" and "the hiring of private lawyers on contractual basis pursuant to Section 3 of P.D. 478, x x x, shall be done by the OSG with the assistance of the PCGG which, after all, has the power 'to file and prosecute all cases investigated by it' (E.O. 14 and 14-A), albeit through the Solicitor General." It prays that the pleading be noted and that "the availment of the OSG of its authority under the heretofore cited Sec. 3 and/or Sec. 1(1) h, k (of P.D. 478) precisely to carry out the Decision's directive be AFFIRMED for the sake of the PCGG cases and in the interest of Government." At the outset, we emphasize that the Court frowns upon the hiring of private lawyers by any government agency engaged in litigation. As we have enunciated in the decision of February 4, 1992, the Solicitor General is the lawyer of the government and he and/or the Office of the Solicitor General shall represent the government and its agencies in all litigations involving them. Aside from the legal provisions mandating that the Solicitor General

is the lawyer of the government which we have set out at length in the said decision, the national interest and fiscal considerations must be taken into account. The government must not be unnecessarily subjected to financial burdens which, in the first place, it need not incur at all. Thus, as earlier articulated by the Court in Orbos v. Civil Service Commission, (*1) a government agency should not decline the services of the Solicitor General or otherwise fail or refuse to forward the papers of the case to him for appropriate action. This practice should be stopped. His services cannot be lightly rejected, much less ignored by the office or officials concerned. It is duty-bound to give him full support and cooperation in any litigation involving it. On the other hand, "the Solicitor General should not desist from appearing before this Court even in those cases he finds his opinion inconsistent with the Government or any of its agents he is expected to represent. The Court must be advised of his position just as well." (*2) All communication lines between the agency and the Solicitor General must be open and unhampered even as both parties must treat each other with professional candidness. However, the presence of special circumstances in this case impel us to allow, by way of exception, the deputization by the Solicitor General of such number of private lawyers among those already hired by the PCGG, as may be necessary to successfully prosecute the PCGG cases, under the authority of Sec. 1(1), h & k, as well as Sec. 3 of P.D. No. 478. (*3) Among these circumstances are the time frame laid down in the Constitution for certain acts authorized under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth, (*4) the imperative need to protect the national interest, and, as averred by the OSG in the instant pleading, the fact that the hired private lawyers have acquired the knowledge and expertise which, at this late hour cannot be easily transmitted to the OSG. Such arrangement, however, should be subject to the following guidelines:

1. Only such number of private lawyers as are needed to effectively and expeditiously prosecute the PCGG cases shall be retained; 2. The hired lawyers shall be directly under the control and supervision of the OSG; and 3. The amount and manner of compensation for the private lawyers shall be in accordance with Commission on Audit rules and regulations. ACCORDINGLY, the prayer of the OSG in the clarification/compliance dated February 17, 1992 that its availment of its authority under Sec. 3 and/or Sec. 1(1) h and k of P.D. No. 478 be affirmed is hereby GRANTED but shall not be taken as a precedent, and the manifestation of compliance dated February 26, 1992 of the PCGG is NOTED. Feliciano, J., is on official leave. Bellosillo, J., is on leave.

i

ii

iii

iv

v

viFILONILA O. CRUZ, petitioner, vs. Hon. CELSO D. GANGAN, Dir. MARCELINO HANOPOL, Auditor GLENDA MANLAPAZ, and the COMMISSION ON AUDIT, respondents.

D E C I S I O N

PANGANIBAN, J.:

While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless rule that a government employee who has not been proven to be culpable or negligent should not be held accountable for the loss of a cellular phone stolen from her while she was riding the Light Railway Transit (LRT). On the other hand, the dogged persistence of petitioner in fighting for her rights, honor, respect and dignity has not been lost on this Court. She has been true to her calling as an educator and a role model for our young people.

The Case

For review on certiorari under Rule 64 is Decision No. 2000-104[1] dated March 28, 2000, issued by the Commission on Audit (COA), requiring Dr. Filonila O. Cruz to pay the book value of a lost government-issued Nokia 909 analog cellular phone. The decretal portion of the Decision reads as follows:

“Premises considered, and conformably to the adverse recommendations of the Director, NGAO II and the Auditor, TESDA-NCR in the letter and 2nd Indorsement dated July 13, 1999 and February 26, 1999, respectively, it is regretted that the instant request for relief is DENIED for want of merit. This being so, the herein petitioner should be required to pay the book value of the lost government-issued cellular phone.”[2]

The Facts

On Friday afternoon of January 15, 1999, petitioner went to the Regional Office of the Technological Education and Skills Development Authority (TESDA) in Taguig, Metro Manila for consultation with the regional director.[3] After the meeting, petitioner went back to her official station in Caloocan City, where she was the then Camanava district director of the TESDA, by boarding the Light Railway Transit (LRT) from Sen. Gil Puyat Avenue to Monumento. On board the LRT, her handbag was slashed and its contents stolen by an unidentified person. Among the items taken from her were her wallet and the government-issued cellular phone, which is the subject of the instant case. That same day, she reported the incident to police authorities who immediately conducted an investigation. However, all efforts to locate the thief and to recover the phone proved futile.

Three days after, on January 18, 1999, petitioner reported the theft to the regional director of TESDA-NCR. She did so through a Memorandum, in which she requested relief from accountability of the subject property. In a 1 st Indorsement dated January 19, 1999, the regional director, in turn, indorsed the request to the resident auditor.

Under a 2nd Indorsement dated February 26, 1999, the resident auditor[4] denied the request of petitioner on the ground that the latter lacked the diligence required in the custody of government properties. Thus, petitioner was ordered to pay the purchase value of the cell phone (P3,988) and that of its case (P250), a total of P4,238. The auditor’s action was sustained by the director of the National Government Audit Office II (NGAO II). The matter was then elevated to the

Commission on Audit.

Ruling of the Commission on Audit

On appeal, the COA found no sufficient justification to grant the request for relief from accountability. It explained as follows:

“x x x While it may be true that the loss of the cellular phone in question was due to robbery (bag slashing), this however, cannot be made as the basis in granting the herein request for relief from accountability since the accountable officer, Dr. Cruz, failed to exercise that degree of diligence required under the circumstances to prevent/avoid the loss. When Dr. Cruz opted to take the LRT which undeniably, was almost always packed and overcrowded and considering further the day and time she boarded said train which was at about 2:00 to 2:30 P.M. of Friday, she exposed herself to the danger and the possibility of losing things such as the subject cellular phone to pickpockets. As an accountable officer, she was under obligation to exercise proper degree of care and diligence in safeguarding the property, taking into account what a reasonable and prudent man would have done under the circumstances. Dr. Cruz could have reasonably foreseen the danger that would befall her and took precautions against its mischievous result. Therefore, having been remiss in her obligation in the keeping or use of the subject government issued cellular phone, she has to answer for its loss as required under Section 105 of PD 1445. Additionally, to be exempt from liability because of fortuitous event as invoked by petitioner Dr. Cruz has no bearing to the case at bar considering that Article 1174 of the New Civil Code which supports said contention applies only if the actor is free from any negligence or misconduct by which the loss/damage may have been occasioned. Further, in Nakpil vs. CA, 144 SCRA 596, one who creates a dangerous condition cannot escape liability although an act of God may have intervened. Thus, there being a positive showing of negligence on the part of the petitioner in the keeping of the subject cellular phone, then, such negligence militates against the grant of herein request for relief.”[5]

Hence, this Petition.[6]

Issues

In her Memorandum, petitioner faults the COA with the following alleged errors:

I.

“The Commission Proper committed grave abuse of discretion amounting to excess of jurisdiction in finding that petitioner failed to exercise that degree of diligence required to prevent the loss of the government-issued cellular phone when she opted to take the light railway transit (LRT) in going to her official station in CAMANAVA District, Caloocan City Hall, Caloocan City[; and]

II.

“The Commission Proper committed grave abuse of discretion when it applied the case of Nakpil vs. CA, 144 SCRA 596 and disregarded Article 1174 of the New Civil Code in denying petitioner’s request for relief from accountability[.]”[7]

In the main, the issues in this case are: (1) whether petitioner was negligent in the care of the government-issued cellular phone, and (2) whether she should be held accountable for its loss.

We note that in its Manifestation and Motion dated October 24, 2000, reiterated in a similar pleading dated March 28, 2001, the Office of the Solicitor General (OSG) sided with petitioner and prayed for the granting of the Petition. Hence, the COA was herein represented by its general counsel, Atty. Santos M. Alquisalas.

The Court’s Ruling

The Petition is meritorious.

First Issue:Required Degree of Diligence

The crucial question to ask is whether petitioner should be deemed negligent when, on that fateful afternoon, she opted to board the LRT where the cellular phone was stolen.

We answer in the negative. Riding the LRT cannot per se be denounced as a negligent act; more so under the circumstances in this case, in which petitioner’s mode of transit was influenced by time and money considerations.

Petitioner boarded the LRT to be able to arrive in Caloocan in time for her 3:00 p.m. meeting. Any prudent or rational person under similar circumstances can reasonably be expected to do the same. Possession of a cellular phone would not and should not hinder one from boarding an LRT coach as petitioner did. After all, whether she took a bus or a jeepney, the risk of theft would have also been present. Because of her relatively low position and pay, she was not expected to have her own vehicle or to ride a taxicab. Neither had the government granted her the use of any vehicle.

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent man and reasonable man would not do.[8]

“Negligence is want of care required by the circumstances.[9]

“The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed, and the importance of the act which he is to perform.”[10] (Emphasis supplied)

The Rules[11] provide that property for official use and purpose shall be utilized with the diligence of a good father of a family. Extra-ordinary measures are not called for in taking care of a cellular phone while in transit. Placing it in a bag away from covetous eyes and holding on to that bag, as done by petitioner, is ordinarily sufficient care of a cellular phone while travelling on board the LRT. The records do not show any specific act of negligence on her part. It is a settled rule that negligence cannot be presumed;[12] it has to be proven. In the absence of any shred of evidence thereof, respondents gravely abused their discretion in finding petitioner negligent.

Granting that the presence or the absence of negligence is a factual matter, the consistent ruling of this Court is that findings of fact of an administrative agency must be respected, so long as they are supported by substantial evidence.[13] But lacking support, the factual finding of the COA on the existence of negligence cannot stand on its own and is therefore not binding on the Court.

While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless hold that a government employee who has not been proven to be culpable or negligent should not be held accountable for the loss of a cellular phone, which was stolen from her while she was riding on the LRT.

Second Issue: Accountability

The assailed COA Decision directly attributed the loss of the cellular phone to a “robbery (bag slashing).” However, it denies the request of petitioner for relief from accountability, because it found her to be negligent. Earlier, we have already ruled that the finding of negligence had no factual or legal basis and was therefore invalid. What now remains to be resolved is whether petitioner observed the proper procedure for notifying the government of the loss.

Within thirty days of the loss,[14] petitioner applied for relief from accountability. We hold that such application be deemed as the notification of the loss of the subject cellular phone. She has also done her part in proving that the loss

was due to theft or robbery. The resident auditor [15] concerned and the COA itself have accepted that the robbery or theft had actually taken place. Necessarily, in the absence of evidence showing negligence on her part, credit for the loss of the cellular phone is proper under the law.[16] It also stands to reason that P4,238 should now be refunded to her. That was the amount she had to pay on June 3, 1999, upon her retirement from government service at age 65.

Her dogged persistence in pursuing this appeal has not been lost on this Court. We agree that, in fighting for her rights, she must have spent more than the value of the lost cellular phone. Hence, we can only applaud her for being true to her calling as an educator and a role model for our young people. Honor, respect and dignity are the values she has pursued. May her tribe increase!

WHEREFORE, the Petition is GRANTED. The assailed Decision of the Commission on Audit is REVERSED and SET ASIDE. The request of Petitioner Filonila O. Cruz for relief from accountability for the lost Nokia 909 analog cellular phone is GRANTED, and the amount of P4,238 paid under Official Receipt No. 6606743 is ordered to be REFUNDED to her upon finality of this Decision. No costs.

SO ORDERED.

RENATO U. REYES, petitioner, vs.COMMISSION ON ELECTIONS, and ROGELIO DE CASTRO, respondents.

G.R. No. 120940 March 7, 1996

JULIUS O. GARCIA, petitioner, vs.COMMISSION ON ELECTIONS, and RENATO U. REYES, respondents.

For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to annul the resolution dated May 9, 1995 of the Second Division of the Commission on Elections, declaring petitioner Renato U. Reyes disqualified from running for local office and cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the disqualification of Renato U. Reyes.

On August 1, 1995, the Court issued a temporary restraining order directing the Commission on Elections en banc to cease and desist from implementing its resolution of July 3, 1995. It also ordered the two cases to be consolidated, inasmuch as they involved the same resolutions of the COMELEC.

The facts are as follows:

Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market; that certain checks issued to him by the National Reconciliation and Development Program of the Department of Interior and Local Government were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27) heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months.

In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office.

It appears that earlier, after learning that the Sanggunian had terminated the proceedings in the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the proceedings had been terminated without giving him a chance to be heard. A temporary restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration of the temporary restraining order and without any injunction being issued by the Regional Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila. However, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the decision.

On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused.

Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the Election Officer of the COMELEC in Bongabong.

On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the Local Government Code of 1991 (R.A. No .7160) which states:

§40. Disqualification. — The following persons are disqualified from running for any elective local position:

. . . .

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

Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner Reyes was voted for in the elections held on May 8, 1995.

On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the dispositive portion of which reads as follows:

WHEREFORE, respondent having been removed from office by virtue of Administrative Case 006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section 40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong, Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the respondent's disqualification and to IMMEDIATELY circulate the amendment to the different Boards of Election Inspectors in Bongabong upon the receipt of this decision.

On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor.

On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared him to have been validly disqualified as candidate and, consequently, set aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the ground that the decision in the administrative case against petitioner Reyes was not yet final and executory and therefore could not be used as basis for his disqualification. It is contended that the charges against him were rendered moot and academic by the expiration of the term during which the acts complained of had allegedly been committed. Invoking the ruling in the case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995 is a bar to his disqualification.

On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second highest number of votes next to petitioner Reyes in the same elections of May 8, 1995, intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong, Oriental Mindoro.

In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the ruling in Republic v. De la Rosa 2

that a candidate who obtains the second highest number of votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940. Petitioner contends that (1) the COMELEC en banc should have decided his petition at least 15 days before the May 8, 1995 elections as provided in 78 of the Omnibus Elections Code, and that because it failed to do so, many votes were invalidated which could have been for him had the voters been told earlier who were qualified to be candidates; (2) that the decision of the Sangguniang Panlalawigan was final and executory and resulted in the automatic disqualification of petitioner, and the COMELEC did not need much time to decide the case for disqualification against Reyes since the latter did not appeal the decision in the administrative case ordering his removal; (3) that the COMELEC should have considered the votes cast for Reyes as stray votes.

After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for lack of showing that the COMELEC committed grave abuse of discretion in issuing the resolutions in question.

G.R. No. 120905

First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering him removed from office, is not yet final because he has not been served a copy thereof.

It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. Manzo's certification states:

On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel refused to accept.

On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr. Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the basis of his refusal.

On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post Office to forward the ORDER to the Office of Mayor Renato U. Reyes.

On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the following inscriptions on the back by the Postmaster:

1) 1st attempt — addressee out of town — 9:15 a.m., 3-23-95

2) 2nd attempt — addressee cannot be contacted, out of town, 8:50 a.m., 3-24-95.

3) 3rd attempt — addressee not contacted — out of town 8:15 a.m., 3-24-95.

4) 4th attempt — addressee refused to accept 8:15 a.m., 3-27-95.

On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to serve the same ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on the Mayor's Office with comments from the employees that they would not accept the same. 3

Rule 13, §§ 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. 4 Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995. 5

If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it.

Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the Regional Trial Court waspending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision.

The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final.

In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect. 7

In the case at bar, petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, § 67. 8 But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner.

The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. 9

Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. 10

In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner.

Petitioner claims that the decision cannot be served upon him because at the hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the Sangguniang Panlalawigan pending final resolution of the petition for certiorari.

The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less illegal for the Sangguniang Panlalawigan to have carried it out

because R.A. No. 7160, § 66 (a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall immediately be furnished to respondent and/or interested parties." It was the Sangguniang Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner Reyes.

Second. The next question is whether there election of petitioner rendered the administrative charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v. COMELEC, 11 in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. 12 Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. This is the rationale for the ruling in the two Aguinaldo cases.

The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to § 40(b) of the Local Government Code, he was disqualified from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to § 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the Court in the first Aguinaldocase: 13

The COMELEC applied Section 40(b) of the Local Government Code Republic Act 7160) which provides:

Sec. 40. The following persons are disqualified from running for any elective local position:

. . . . .

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

Republic Act 7160 took effect only on January 1, 1992. . . . There is no provision in the statute which would clearly indicate that the same operates retroactively.

It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present case.

Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the then Secretary of Local Government was questioned by the petitioner in this Court and that to date, the petition remains unresolved.

At any rate, petitioner's claim that he was not given time to present his evidence in the administrative case has no basis, as the following portion of the decision of the Sangguniang Panlalawigan makes clear:

On November 28, 1994 the Sanggunian received from respondent's counsel a motion for extension of time to file a verified answer within 15 days from November 23, 1994. In the interest of justice another fifteen (15) day period was granted the respondent.

On December 5, 1994 which is the last day for filing his answer, respondent instead filed a motion to dismiss and set the same for hearing on December 22, 1994.

. . . .

On January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial was received by respondent on January 7, 1995. Considering the fact that the last day within which to file his answer fell on December 5, 1994, respondent is obliged to file the verified answer on January 7, 1995 when he received the order denying his motion to dismiss.

In the hearing of the instant case on January 26, 1995, the counsel for the complainant manifested that he be allowed to present his evidence for failure of the respondent to file his answer albeit the lapse of 19 days from January 7, 1995.

The manifestation of complainant's counsel was granted over the objection of the respondent, and the Sanggunian in open session, in the presence of the counsel for the respondent, issued an order dated January 26, 1995 quoted as follows:

"As shown from the record of this case, Mayor Renato U. Reyes of Bongabong failed to file his answer within

the time prescribed by law, after the motion to dismiss was denied by this Sanggunian. The Sanggunian declares that respondent Mayor Renato U. Reyes failed to file his answer to the complaint filed against him within the reglementary period of fifteen (15) days. Counsel for respondent requested for reconsideration twice, which oral motions for reconsideration were denied for lack of merit.

Art. 126 (a) (1) provides that failure of respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf.

It is important to note that this case should be heard in accordance with what is provided for in the constitution that all parties are entitled to speedy disposition of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its authority to investigate this case come February 8, 1995 and therefore, in the interest of justice and truth the Sanggunian must exercise that authority by pursuing the hearing of this case.

Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will present his evidence on February 2, 3, and 6, 1995, and the counsel for respondent will be given a chance to cross-examine the witnesses that may be presented thereat."On February 2, 1995, the respondent through counsel despite due notice in open session, and by registered mail (registry receipt no. 1495) dated January 27, 1995, failed to appear. No telegram was received by this body to the effect that he will appear on any of the dates stated in the Order of January 26, 1995. Indeed, such in action is a waiver of the respondent to whatever rights he may have under our laws.

All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution).

Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election.

G.R. No. 120940

We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.

That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. 14 The doctrinal instability caused by see-sawing rulings 15 has since been removed. In the latest ruling 16 on the question, this Court said:

To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.

Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. 17 The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him.

As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election, suffice it to say that under R.A. No. 6646, § 6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. For the same reason, we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him before the elections.

WHEREFORE, the petition in G.R. 120905 and G.R. No, 120940 are DISMISSED for lack of merit.

SO ORDERED.

Valmonte vs Belmonte

February 13, 1989

FACTS: Petitioner Ricardo Valmonte wrote a letter to Hon. Feliciano Belmonte, GSIS General Manager, requesting that he be furnished with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan. Belmonte replied through the Deputy General Counsel of the GSIS whose opinion is that is that a confidential relationship exists between the GSIS and all those who borrow from it; and that it would not be proper for the GSIS to breach this confidentiality unless so ordered by the courts.

ISSUE: Whether or not they are entitled to the documents sought, by virtue of their constitutional right to information

HELD: The information sought by petitioners is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS. The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for

the benefit of the latter. Undeniably, its funds assume a public character. It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. The public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern.

The Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings. However, although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern.

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