20181S-Admin Law Cases - PDFCOFFEE.COM (2024)

Compilation on Administrative Law and Election Laws 2018 1S Atty. Marivic Rimando

Table of Contents 2018-1S Administrative Law Administrative Law. ...................................................................................................................... 4 Law on Public Officers ................................................................................................................. 4 Public Office............................................................................................................................... 4 Public Officer. ............................................................................................................................ 5 Powers and Duties of Public Officers .................................................................................... 5 CASES ON PUBLIC OFFICE ..................................................................................................... 8 Cases on Powers of Administrative Agencies........................................................................ 24 CASES ON SEPARATION OF POWERS AND LAW ON PUBLIC OFFICERS ............... 45 CASES ON ADMINISTRATIVE DISCIPLINE......................................................................... 57 PUBLIC OFFICE ......................................................................................................................... 72 Khan v. Ombudsman ................................................................................................................. 72 Quimpo v. Tanodbayan ............................................................................................................. 80 Eugenio v. CSC........................................................................................................................... 88 Buklod Ng Kawaning EIIB vs. Zamora .................................................................................... 99 Mendoza vs. Quisumbing ........................................................................................................ 114 The Provincial Government of Camarines Norte vs. Gonzales ......................................... 167 Fernandez vs. Sto. Tomas ...................................................................................................... 190 Republic v. Bacas ..................................................................................................................... 210 Yap v. Magtapon ....................................................................................................................... 230 Ampil v. Ombudsman ............................................................................................................... 245 Rimando v Naguilian Emission Center .................................................................................. 281 ADMINISTRATIVE POWERS ................................................................................................. 288 Hijo Plantation v. Central Bank of the Philippines ............................................................... 288 CIR v. Central Luzon Drug Corp. ........................................................................................... 297 Solid Homes v Payawal ................................................................................................................ 322 SOJ v Lantion ............................................................................................................................... 328 Heirs of Santiago Pastoral v SPW and Communications ............................................................. 370 GSIS v CSC .................................................................................................................................... 376 Besaga v Acosta ....................................................................................................................... 382 Pison Arceo Agricultural and Development Corp v NLRC ................................................. 394 Montemayor v Bundalian ......................................................................................................... 405 Evangelista v Jarencio ............................................................................................................. 412

Lastimosa v Vasquez ............................................................................................................... 428 Saunar v Executive Secretary ................................................................................................ 443 PPC v CA ................................................................................................................................... 461 Appendix A................................................................................................................................. 478 Appendix B................................................................................................................................. 933 Appendix C ................................................................................................................................ 968 Annotations .............................................................................................................................. 1112

Administrative Law. That branch of public law which fixes the organization and determines the competence of administrative authorities and indicates to the individual remedies for the violation of his rights It is that branch of public law under which the executive department of the government, acting as a quasi-legislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community, as under laws regulating public interest, professions, trades and callings, rates and prices, laws for the protection of public health and safety, and the promotion of public convenience (Dean Roscoe, Growth of Administrative Law, p. 110). Administrative Bodies or Agencies Organ of government, other than a court and other than a legislature, which affects the rights of private parties either through adjudication or rule-making. They are created either by: (1) constitutional provision; (2) legislative enactment; or (3) authority of law. Criterion: (1) It is regulatory even if it conducts hearings and determines controversies to carry out its regulatory duty; (2) On rulemaking authority, it is administrative when it does not have discretion to determine what the law shall be but merely prescribes details for the enforcement of the law. Law on Public Officers Public Office. The right, authority or 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 sovereign power of government/ to be exercised by him for the benefit of the public (Fernandez v Sto. Tomas, GR No. 116418, March 7, 1995). 1. Elements: a) created by law or by authority of law; b) possess a delegation of a portion of the sovereign powers of government, to be exercised for the benefit of the public; c) powers conferred and duties imposed must be defined, directly or impliedly, by legislature or by legislative authority; d) duties must be performed independently and without the control of a superior

power other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general control of a superior office or body; and e) must have permanence or continuity. 2. Creation: Public offices are created by: a) Constitution; b) by valid statutory enactments; and c) by authority of law Public Officer. Administrative Law

Public Officer

A person who holds a public office

Criminal Law

Sec 2, RA 3019 Anti Graft and Corrupt Practices Law Any person who, Includes by direct “elective and provision of law, appointive popular election officials and or appointment employees, by competent permanent or authority, shall temporary, take part in the whether in the performance of classified, public functions unclassified or in the Philippine exempt government, or service1, shall perform in receiving said government compensation, or in any of its even nominal, branches, public from the duties as an government employee, agent 1PD 807, Civil Service or subordinate Decree official, of any rank or class 1

Art. 203, RPC

Powers and Duties of Public Officers

A. Authority The authority of public officers consists of those powers which are: a) expressly conferred upon him by the act appointing him; b) expressly annexed to the office by law; and c) attached to the office by common law as incidents to it. Under the doctrine of necessary implication, all powers necessary for the effective exercise of the express powers are deemed impliedly granted. It can only be exercised during the term when the public officer is, by law, invested with the rights and duties of the office. B. Ministerial and discretionary powers Ministerial Discretionary One the discharge of which by One imposed by law upon a public the officer concerned is officer wherein the officer has the imperative and requires neither right to decide how and when the judgement nor discretion. It duty shall be performed. May not may be compelled by be compelled by mandamus.1 1 mandamus Rimando v Naguillian Emission Testing Center Judgement Discretion A judicial function, the It is the faculty conferred upon a determination of a question of court or other officer by which he law. may decide the question either way and still be right. It is limited to the evident purpose of the act, not arbitraty, capricious or oppressive proceedings Liability of Public Officers. A. General Rule. A public officer is not liable for injuries sustained by another as a consequence of official acts done within the scope of his official authority, except as otherwise provided by law. B. Statutory Liability Art 27, Civil Code Any person suffering from moral or material loss because a PO refuses or neglects, without just cause, to perform his official duty, may file an action for damages and other relief against the PO. This is without prejudice to

administrative disciplinary action against the officer. Art 32, Civil Code Liability of PO for violation of constitutional rights of individuals1 Art 34, Civil Code Liability of peace officers who fail to respond or give assistance to persons in danger of injury to life or property. (Note: Municipal corporation is subsidiarily liable) Sec 38, Ch 9, Book I, Adm. Any PO who, without just Code cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law C. Threefold Liability Rule. The wrongful acts or omissions of a PO may give rise to civil, criminal and administrative liability.

CASES ON PUBLIC OFFICE • Meaning of Public Office Ismael G. Khan, Jr. and Wenceslao L. Malabanan, vs. Office Of The Ombudsman, Deputy Ombudsman (Visayas), Rosauro F. Torralba* and Celestino Bandala, G.R. No. 125296, July 20, 2006 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. [Laurel v. Desierto, 430 Phil. 658 (2002) citing F.R. Mechem, A treatise on the Law of Public Offices and Officers] Quimpo v. Tanodbayan, 230 Phil. 232 (1986) In this case, the Philippine National Oil Corporation (PNOC) acquired PETROPHIL, a private corporation. Here, the Court declared that PETROPHIL shed off its private status and became a subsidiary of PNOC. Its officers, who were then accused of violating the Anti-Graft and Corrupt Practices Act (RA 3019), were considered "public officers" under the jurisdiction of the Tanodbayan (now Ombudsman). •

Creation and Abolition of Public Office

Eugenio v. Civil Service Commission, 243 SCRA 196 (1995) "Except for such offices as are created by the Constitution, the creation of a public offices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by constitutional provisions, it is supreme, and the legislature may decide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government it is necessary to create and define duties, the legislative department has the discretion to determine whether additional offices shall be created, or whether these duties shall be attached to and become ex-officio duties of existing offices. An office created by the legislature is wholly within the power of that body, and it may prescribe the mode of filling the

office and the powers and duties of the incumbent, and, if it sees fit, abolish the office." Buklod Ng Kawaning EIIB, Cesar Posada, Remedios G. Princesa, Benjamin Kho, Benigno Manga, Lulu Mendoza, Petitioners, Vs. Hon. Executive Secretary Ronaldo B. Zamora, Hon. Secretary Jose Pardo, Department Of Finance, Hon. Secretary Benjamin Diokno, Department Of Budget and Management, Hon. Secretary Artemio Tuquero, Department Of Justice, G.R. Nos. 142801-802 July 10, 2001 The general rule has always been that the power to abolish a public office is lodged with the legislature [Eugenio v. Civil Service Commission, 243 SCRA 196 (1995)] This proceeds from the legal precept that the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, or by authority of law. [Cruz, The Law of Public Officers, 1999 Ed., p. 4.] Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence. [Cruz, The Law of Public Officers, 1999 Ed., p. 199.] The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President's power of control may justify him to inactivate the functions of a particular office, [Martin, Philippine Political Law, p. 276] or certain laws may grant him the broad authority to carry out reorganization measures. [Larin v. Executive Secretary, 280 SCRA 713 (1997)] Dario vs. Mison, 176 SCRA 84 (1989) As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event no dismissal or separation actually occurs because the position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition is done is void ab initio. There is an invalid abolition as where there is

merely a change of nomenclature of positions or where claims of economy are belied by the existence of ample funds. Section 2 of R. A. No. 6656 lists down the circumstances evidencing bad faith in the removal of employees as a result of the reorganization, thus: Sec. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of the reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; b) Where an office is abolished and another performing substantially the same functions is created; c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices; e) Where the removal violates the order of separation provided in Section 3 hereof. The Provincial Government of Camarines Norte, represented by Governor Jesus O. Typoco, Jr., vs. Beatriz O. Gonzales, G.R. No. 185740, July 23, 2013 The right to hold a position, on the other hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to the nature of the position.

Security of tenure in public office simply means that a public officer or employee shall not be suspended or dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right to public office despite a change in the nature of the office held. To be sure, both career and non-career service employees have a right to security of tenure.1âwphi1 All permanent officers and employees in the civil service, regardless of whether they belong to the career or non-career service category, are entitled to this guaranty; they cannot be removed from office except for cause provided by law and after procedural due process. [Jocom v. Judge Regalado, 278 Phil. 83, 94 (1991), citing Tapales v. President and Board of Regents of the University of the Philippines, 117 Phil. 561 (1963)]. The concept of security of tenure, however, labors under a variation for primarily confidential employees due to the basic concept of a "primarily confidential" position. Serving at the confidence of the appointing authority, the primarily confidential employee’s term of office expires when the appointing authority loses trust in the employee. When this happens, the confidential employee is not "removed" or "dismissed" from office; his term merely "expires" [Ingles v. Mutuc, 135 Phil. 177, 182 (1968)] and the loss of trust and confidence is the "just cause" provided by law that results in the termination of employment. Aida D. Eugenio vs. Civil Service Commission, Hon. Teofisto T. Guingona, Jr. & Hon. Salvador Enriquez, Jr., G.R. No. 115863, March 31, 1995 Except for such offices as are created by the Constitution, the creation of public offices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by constitutional provisions, it supreme, and the legislature may decide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government it is necessary to create and define duties, the legislative department has the discretion to determine whether additional offices shall be created, or whether these duties shall be attached to and become ex-officio duties of existing offices. An office created by the legislature is wholly within the power of that body, and

it may prescribe the mode of filling the office and the powers and duties of the incumbent, and if it sees fit, abolish the office. Respondent Commission's power to reorganize is limited to offices under its control as enumerated in Section 16 of the Administrative Code of 1987. The essential autonomous character of the CESB is not negated by its attachment to respondent Commission. By said attachment, CESB was not made to fall within the control of respondent Commission. Under the Administrative Code of 1987, the purpose of attaching one functionally inter-related government agency to another is to attain "policy and program coordination." Salvador C. Fernandez and Anicia M. De Lima, vs. Hon. Patricia A. Sto. Tomas, Chairman, and Hon. Ramon B. Ereneta, Commissioner, Civil Service Commission, G.R. No. 116418 March 7, 1995 That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service System, is not open to debate. The mantle of its protection extends not only against removals without cause but also against unconsented transfer which, as repeatedly enunciatEd, are tantamount to removals which are within the ambit of the fundamental guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon the nature of the appointment (Hojilla vs. Marino, 121 Phil. 280 [1965].) Such that the rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed — not merely assigned — to a particular station(Miclat v. Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon. Valencia, et al., 118 Phil. 728 [1963]). [Brillantes v. Guevarra, 27 SCRA 138 (1969)] cited in Ibañez, et al. vs. Commission on Elections, et al. (G.R. No. L-26558, April 27, 1967; 19 SCRA 1002 [1967]); Mendoza vs. Quisumbing, 186 SCRA 108 (1990) Cruz v. Primicias, Jr., Cruz, et al. v. Primicias, Jr., et al., 23 SCRA 998 [1968]

An abolition which is not bona-fide but is merely a device to circumvent the constitutional security of tenure of civil service employees is null and void. De la Llana v. Alba (112 SCRA 294 [1982] Nothing is better settled in our laws than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. (23 SCRA 998) reiterated such a doctrine. 'We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved but the validity of the abolition of their offices. This is a legal issue that is for the courts to decide. It is a well-known rule also that valid abolition of offices is neither removal nor separation of the incumbents. And of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office....' As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. The principle earlier stated that the case of Jose v. Arroyo, G.R. No. 78435 has been superseded by the Palma-Fernandez v. dela Paz, 160 SCRA 751 (1988) and the Dario v. Mison, et al. (G.R. No. 81954, August 8, 1989 cases to the effect that after February 2, 1987 civil service eligibles in the government service enjoy the constitutional right to security of tenure. The petitioners, therefore, can not be removed by mere notices of termination, without due notice and hearing and not knowing the valid grounds for the termination of their services. Ritual invocation of the abolition of an office is not sufficient to justify the termination of the services of an officer or employee in such abolished office. Abolition should be exercised in good faith, should not be for personal or political reasons, and cannot be implemented in a manner contrary to law. "Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.' (Dario v. Mison, G.R. No. 81954, August 8, 1989

Security of tenure, together with the merit and fitness rule, is a basic feature of the civil service scheme we have adopted in the Philippines. If established principles protecting security of tenure are to be disregarded or waived, this can be done only on the basis of clear constitutional grounds. Tiatco vs. CSC, 216 SCRA 749 (1992) The right to appeal is merely a statutory right and may be exercised only in the manner and in accordance with the provision of law. 5 Failure to do so will cause loss of the right to appeal. Even administrative proceedings must end sometime, just as public demands that finality be writen on judicial controversies.[Antique Sawmills, Inc. v. Zayco, et al., L-20051, 17 SCRA 316 (1966)] Where the findings of the administrative body are amply supported by substantial evidence, such findings are accorded not only respect but also finality. [Quinsay v. IAC, G.R. No. 67935, 195 SCRA 268 (1991)] •

The Administrative Code of 1987

Tañada vs. Tuvera, 146 SCRA 446, G.R. No. L-63915, April 24, 1985 While the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].[ Severino vs. Governor General, 16 Phil. 366, 378.]

In a long line of decisions, Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179. Publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.

Pesigan vs. Angeles, 129 SCRA 174 "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately. Philippine Association Of Service Exporters, Inc., petitioner, vs. Hon. Ruben D. Torres, as Secretary of the Department of Labor & Employment, and Jose N. Sarmiento, as Administrator of the Philippine Overseas Employment Administration, G.R. No. 101279, August 6, 1992 Tañada vs. Tuvera, 146 SCRA 446 . . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. (p. 447.) Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (p. 448.) •

Reorganization

Drianita Bagaoisan, Fely Madriaga, Shirly Tagaban, Ricardo Sarandi, Susan Imperial, Benjamin Demdem, Rodolfo Daga, Edgardo Baclig, Gregorio Labayan, Hilario Jerez, and Maria Corazon Cuanang vs. National Tobacco Administration, represented by Antonio De Guzman and Perlita Baula, G.R. No. 152845, August 5, 2003 "The general rule has always been that the power to abolish a public office is lodged with the legislature. This proceeds from the legal

precept that the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, or by authority of law. Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence. "The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or certain laws may grant him the broad authority to carry out reorganization measures. Dario v. Mison, 176 SCRA 84 (1989) Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the 'abolition,' which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, otherwise not in good faith, no valid 'abolition' takes and whatever 'abolition' is done, is void ab initio. There is an invalid 'abolition' as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. Laurel v. Desierto, 430 Phil. 658 (2002) Reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. Aquilino T. Larin vs. The Executive Secretary, Secretary Of Finance, Commissioner of The Bureau of Internal Revenue and the Committee Created to Investigate the Administrative Complaint Against Aquilino

T. Larin, composed of Frumencio A. Lagustan, Jose B. Alejandrino and Jaime M. Maza, G.R. No. 112745, October 16, 1997 The "power to remove is inherent in the power to appoint". Thus, it is ineluctably clear that Memorandum Order No. 164, which created a committee to investigate the administrative charge against petitioner, was issued pursuant to the power of removal of the President. This power of removal, however, is not an absolute one which accepts no reservation. It must be pointed out that petitioner is a career service officer. Under the Administrative Code of 1987, career service is characterized by the existence of security of tenure, as contradistinguished from non-career service whose tenure is co-terminus with that of the appointing authority or subject to his pleasure, or limited to a period specified by law or to the duration of a particular project for which purpose the employment was made. As a career service officer, petitioner enjoys the right to security of tenure. No less than the 1987 Constitution guarantees the right of security of tenure of the employees of the civil service. Specifically, Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the Philippines Career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that petitioner is a presidential appointee does not give the appointing authority the license to remove him at will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the law is the recipient of tenurial protection, thus, may only be removed for a cause and in accordance with procedural due process. Since administrative cases are independent from criminal actions for the same act or omission, the dismissal or acquittal of the criminal charge does not foreclose the institution of administrative action nor carry with it the relief from administrative liability. (Police Commission vs. Lood, No. L-34230, March 31, 1980 , 96 SCRA 819; Office of the Court Administrator vs. Enriquez, A.M. No. P-89-290, January 29, 1993, 218 SCRA 1)

The essence of due process in administrative proceedings is that a party be afforded a reasonable opportunity to be heard and to submit any evidence he may have in support of his defense. (Midas Touch Food Corp. vs. NLRC, G.R. No. 111639, July 29, 1996, 259 SCRA 652) Mecano vs COA, 216 SCRA 500 (1992) The question of whether a particular law has been repealed or not by a subsequent law is a matter of legislative intent. The lawmakers may expressly repeal a law by incorporating therein a repealing provision which expressly and specifically cites the particular law or laws, and portions thereof, that are intended to be repealed. (School Dist. No. 45 vs. Board of County of Comira, 141 Kan. 108) A declaration in a statute, usually in its repealing clause, that a particular and specific law, identified by its number or title, is repealed is an express repeal; all others are implied repeals. [Agpalo, Statutory Construction 289 (1986)] Repeal by implication proceeds on the premise that where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect. [Posadas vs. National City Bank, 296 U.S. 497, 80 L. Ed. 351 (1935)] Hence, before there can be a repeal, there must be a clear showing on the part of the lawmaker that the intent in enacting the new law was to abrogate the old one. The intention to repeal must be clear and manifest; [Maceda vs. Macaraig, 197 SCRA 771 (1991)]. otherwise, at least, as a general rule, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue so far as the two acts are the same from the time of the first enactment. [Posadas vs. National City Bank, 296 U.S. 497, 80 L. Ed. 351 (1935)] There are two categories of repeal by implication. The first is where provisions in the two acts on the same subject matter are in an irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one. The second is if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate to repeal the earlier law. . [Agpalo, Statutory Construction 289 (1986)]

Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the same subject matter; they are so clearly inconsistent and incompatible with each other that they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one law cannot be enforced without nullifying the other. [Villegas vs. Subido, 41 SCRA 190 (1971)] Subsequent statute is deemed to repeal a prior law if the former revises the whole subject matter of the former statute. [People vs. Almuete, 69 SCRA 410, 414 (1976)]. When both intent and scope clearly evidence the idea of a repeal, then all parts and provisions of the prior act that are omitted from the revised act are deemed repealed.[People vs. Benuya, 61 Phil. 208 (1916)].Furthermore, before there can be an implied repeal under this category, it must be the clear intent of the legislature that the later act be the substitute to the prior act. [Posadas vs. National City Bank, 296 U.S. 497, 80 L. Ed. 351 (1935)] Administrative decisions may be reviewed by the courts upon a showing that the decision is vitiated by fraud, imposition or mistake. [Jaculina vs. National Police Commission, 200 SCRA 489 (1991); Greenhills Mining Co. vs. Office of the President, 163 SCRA 350 (1988)] Repeals of statutes by implication are not favoured. [National Power Corporation vs. Hon. Zain B. Angas, G.R. Nos. 60225-26, May 8, 1992; Maceda vs. Macaraig, 197 SCRA 771 (1991); Maddumba vs. Government Service Insurance System, 182 SCRA 281 (1990); Larga vs. Ranada, Jr., 164 SCRA 18 (1988); De Jesus vs. People, 120 SCRA 760 (1983)] The presumption is against inconsistency and repugnancy for the legislature is presumed to know the existing laws on the subject and not to have enacted inconsistent or conflicting statutes. [U.S. vs. Palacio, 33 Phil. 208 (1916)] "Repeals by implication are not favored, and will not be decreed unless it is manifest that the legislature so intended. As laws are

presumed to be passed with deliberation with full knowledge of all existing ones on the subject, it is but reasonable to conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to some matter, unless the repugnancy between the two is not only irreconcilable, but also clear and convincing, and flowing necessarily from the language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is beyond peradventure renewed. Hence, every effort must be used to make all acts stand and if, by any reasonable construction, they can be reconciled, the later act will not operate as a repeal of the earlier. [Smith, Bell & Co. vs. Estate of Maronilla, 41 Phil. 557 (1916)] •

Decisions are Immediately Executory

Government Service Insurance System (GSIS), Vs. Civil Service Commission, Heirs of Elizar Namuco, and Heirs of Eusebio Manuel, G.R. No. 96938 October 15, 1991 Cucharo v. Subido, 37 SCRA 523, citing SEC. 35, Civil Service of Act of 1959; Yarcia v. City of Baguio, 33 SCRA 419; Trocio v. Subido, 20 SCRA 354; Cabigao v. del Rosario, 6 SCRA 578 (1962); Austria v. Auditor General, 19 SCRA 79, 83-84; Gonzales v. Hernandez, 2 SCRA 228, 233-234 As a major premise, it has been the repeated pronouncement of this Supreme Tribunal that the Civil Service Commissioner has the discretion to order the immediate execution in the public interest of his decision separating petitioner-appellant from the service, always sbuject however to the rule that, in the event the Civil Service Board of Appeals or the proper court determines that his dismissal is illegal, he should be paid the salary corresponding to the period of his separation from the service until his reinstatement. Death, however, has already sealed that outcome, foreclosing the initiation of disciplinary administrative proceedings, or the continuation of any then pending, against the deceased employees. Whatever may be said of the binding force of the Resolution of July 4, 1988 so far as, to all intents and pursposes, it makes exoneration in the adminstrative proceedings a condition precedent to payment of back salaries, it cannot exact an impossible performance or decree a

useless exercise. Even in the case of crimes, the death of the offender exteinguishes criminal liability, not only as to the personal, but also as to the pecuniary, penalties if it occurs before final judgment. [Article 89 (1), Revised Penal Code] Augusto Toledo, vs. Civil Service Commission and Commission on Elections, G.R. No. 92646-47, October 4, 1991 The power vested in the Civil Service Commission was to implement the law or put it into effect, not to add to it; to carry the law into effect or execution, not to supply perceived omissions in it. "By its administrative regulations, of course, the law itself can not be extended; said regulations 'cannot amend an act of Congress." (Teoxon v. Members of the Board of Administrators, Philippine Veterans Administration, 33 SCRA 585, 589 [1970], citing Santos v. Estenzo, 109 Phil. 419 [1960]; see also, Animos v. Philippine Veterans Affairs Office, 174 SCRA 214, 223-224 [1989] in turn citing Teoxon). •

Next-in-Rank Rule

Quezon City, represented by the Honorable Brigido R. Simon, Jr., vs. Civil Service Commission and Florentina E. Eleria, G.R. No. 92867, June 3, 1991 Medenilla v. Civil Service Commission, G.R. No. 93868, 19 February 1991 . . . We have already held in cases subsequent to Millares that the next-in-rank rule is not absolute; it only applies in cases of promotion (see Pineda v. Claudio, 28 SCRA 34 [1969]). And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order (see Pineda v. Claudio, supra; Luego v. Civil Service Commission, 143 SCRA 327 [1986]). There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law. (Emphasis supplied)

The Court further notes that even if the vacancy here had been filled by promotion rather than by lateral transfer, the concept of "next in rank" does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. What Section 19 (3) of P.D. No. 807, the Civil Service Law, provides is that if a vacancy is filled by a promotion, the person holding the position next in rank thereto "shall be considered for promotion." Taduran v. Civil Service Commission, 131 SCRA 66, 69 (1984), The Court construed that phrase to mean that the person next in rank "would be among the first to be considered for the vacancy, if qualified. Santiago, Jr. v. Civil Service Commission, 178 SCRA 733, 736 (1989), One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow that he and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. . . . It appears to the Court that Section 4 of respondent Commission's Resolution No. 83-343 which provided that: Rule on Promotion xxx

xxx

xxx

Section 4. An employee who holds a next in rank position who is competent and qualified, possesses an appropriate civil service eligibility and meets the other conditions for promotion shall be promoted to the higher position, when it becomes vacant. (Emphasis supplied)

has been superseded by Section 2 of Rule 3 of the respondent Commission's subsequent Resolution No. 89-779 which reads as follows: B. Rules on Protest Cases xxx

xxx

xxx

Rule III. Procedure in Filling Vacancies xxx

xxx

xxx

Section 2. Positions in the Second Level. — When a vacancy occurs in the second level of the career service as herein defined, the employees in the department who occupy the next lower positions in the occupational group under which the vacant position is classified, and in other functionally related occupational groups, who are competent and qualified and with appropriate civil service eligibility shall be considered for appointment to the vacancy. (Emphasis supplied) Cases on Powers of Administrative Agencies • Source of Power Hijo Plantation, Inc. vs Central Bank, 164 SCRA 192 (1988) Such regulations have uniformly been held to have the force of law, whenever they are found to be in consonance and in harmony with the general purposes and objects of the law. Such regulations once established and found to be in conformity with the general purposes of the law, are just as binding upon all the parties, as if the regulation had been written in the original law itself (29 Phil. 119, Ibid). Upon the other hand, should the regulation conflict with the law, the validity of the regulation cannot be sustained (Director of Forestry vs. Muroz 23 SCRA 1183). In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People vs. Lim, 108 Phil. 1091). Rules that subvert the

statute cannot be sanctioned (University of Sto. Tomas v. Board of Tax Appeals, 93 Phil. 376; Del Mar v. Phil. Veterans Administration, 51 SCRA 340). Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate to the statute relied upon a grant of power before he can exercise it. Department zeal may not be permitted to outrun the authority conferred by statute (Radio Communications of the Philippines, Inc. v. Santiago L-29236, August 21, 1974, 58 SCRA 493; cited in Tayug Rural Bank v. Central Bank, L-46158, November 28,1986,146 SCRA 120,130). • Construction of Statutes Conferring Powers on Administrative Agencies Solid Homes, Inc. vs Payawal, 177 SCRA 72 (1989) Statutes conferring powers on their administrative agencies must be liberally construed to enable them to discharge their assigned duties in accordance with the legislative purpose. (Cooper River Convalescent Ctr., Inc. v. Dougherty, 356 A. 2d 55, 1975). Following this policy in Antipolo Realty Corporation v. National Housing Authority, 153 SCRA 399, the Court sustained the competence of the respondent administrative body, in the exercise of the exclusive jurisdiction vested in it by PD No. 957 and PD No. 1344, to determine the rights of the parties under a contract to sell a subdivision lot. It is settled that any decision rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this Court. (Trinidad v. Yatco, 1 SCRA 866; Corominas, Jr. v. Labor Standards Commission, 2 SCRA 721; Sebastian v. Gerardo, 2 SCRA 763; Buena v. Sapnay, 6 SCRA 706). The only exception is where the party raising the issue is barred by estoppel (Tijam v. Sibonghanoy, 23 SCRA 29; Philippine National Bank v. IAC, 143 SCRA 299; Tan Boon Bee & Company, Inc. v. Judge Jarencio, G.R. No. 41337, June 30, 1988), which does not appear in the case before us. On the contrary, the issue was raised as early as in the motion to dismiss filed in the trial court by the petitioner, which continued to

plead it in its answer and, later, on appeal to the respondent court. We have no choice, therefore, notwithstanding the delay this decision will entail, to nullify the proceedings in the trial court for lack of jurisdiction.

Express and Implied Powers

Laguna Lake Development Authority vs CA, 2331 SCRA 292 (1994) While it is a fundamental rule that an administrative agency has only such powers as are expressly granted to it by law, it is likewise a settled rule that an administrative agency has also such powers as are necessarily implied in the exercise of its express powers (Republic v. Court of Appeals, G.R. No. 90482, August 5, 1991, 200 SCRA 266; Guerzon v. Court of Appeals, et al. G.R. No. 77707, August 8, 1988, 164 SCRA 182). Ex parte cease and desist orders are permitted by law and regulations in situations like that here presented precisely because stopping the continuous discharge of pollutive and untreated effluents into the rivers and other inland waters of the Philippines cannot be made to wait until protracted litigation over the ultimate correctness or propriety of such orders has run its full course, including multiple and sequential appeals such as those which Solar has taken, which of course may take several years. The relevant pollution control statute and implementing regulations were enacted and promulgated in the exercise of that pervasive, sovereign power to protect the safety, health, and general welfare and comfort of the public, as well as the protection of plant and animal life, commonly designated as the police power. It is a constitutional commonplace that the ordinary requirements of procedural due process yield to the necessities of protecting vital public interests like those here involved, through the exercise of police power. . . .( Pollution Adjudication Board v. Court of Appeals, et al. G.R. No. 93891, March 11, 1991, 195 SCRA 112.) Heirs of Santiago Pastoral v. Secretary of Public Works and Communications, 162 SCRA 619 (1988) The factual findings of the Secretary are substantiated by evidence in the administrative records. In the absence of any illegality, error of law, fraud or imposition, none of which were proved by the petitioners in the instant case, said findings should be respected. (Lovina v. Moreno, G.R. No. L-17821, November 29, 1963; Santos, etc., et al. v. Secretary of Public Works and Communications, G.R. No. L-16949, March 18, 1967; See also Borja v. Moreno, 11 SCRA 568; Taleon v.

Secretary of Public Works and Communications, G.R. No. L-24281, May 16, 1967) •

Discretionary and Ministerial Powers

Rimando vs Naguilian Emission Testing Center, Inc., GR No. 198860, July 12, 2012 Roble Arrastre, Inc. v. Hon. Villaflor, 531 Phil. 30 (2006) More importantly, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature. [] Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus. Florendo vs Enrile, 239 SCRA 22 (1994) The duty imposed upon the sheriff to execute the writ is ministerial, not directory. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of the legal authority, without regard to the exercise of his own judgment. •

Investigatory Power

Secretary of Justice vs Lantion, 322 SCRA 160 (2000) One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few

notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, Public International Law, 1992 ed., p. 13). The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991] . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to

say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. Montemayor vs Bundalian, 405 SCRA 264 (2003) The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. [Umali vs. Guingona, Jr., 305 SCRA 533 (2000); Audion Electric Co., Inc. vs. NLRC, 308 SCRA 340 (2000)] In administrative proceedings, technical rules of procedure and evidence are not strictly applied. Administrative due process cannot be fully equated with due process in its strict judicial sense for it is enough that the party is given the chance to be heard before the case against him is decided. [Ocampo vs. Office of the Ombudsman, 322 SCRA 17 (2000)] The basic principles in administrative investigations :

First, the burden is on the complainant to prove by substantial evidence the allegations in his complaint [Lorena vs. Encomienda, 302 SCRA 632 (1999); Cortez vs. Agcaoili, 294 SCRA 423 (1998)] Substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise. [Enrique vs. Court of Appeals, 229 SCRA 180 (1994)] Second, in reviewing administrative decisions of the executive branch of the government, the findings of facts made therein are to be respected so long as they are supported by substantial evidence. Hence, it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence. Third, administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law. These principles negate the power of the reviewing court to re-examine the sufficiency of the evidence in an administrative case as if originally instituted therein, and do not authorize the court to receive additional evidence that was not submitted to the administrative agency concerned [Ramos vs. Secretary of Agriculture and Natural Resources, 55 SCRA 330 (1974)] The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. [Dinsay vs. Cioco, 264 SCRA 703 (1996)] Evangelista vs Jarencio, G.R. No. L-29274 November 27, 1975 The life blood of the administrative process is the flow of fact, the gathering, the organization and the analysis of evidence. (Administrative Law, Jaffe and Nathanson, 1961 ed., 491). Investigations are useful for all administrative functions, not only for rule making, adjudication, and licensing, but also for prosecuting, for

supervising and directing, for determining general policy, for recommending, legislation, and for purposes no more specific than illuminating obscure areas to find out what if anything should be done. (Pope & Talbot, Inc. v. Smith, 340 P. 2d 964, citing 1 Davis Administrative Law Treatise, 160) An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken 9 and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations for actions. (Marchitto v. Waterfront Commission of New York Harbor, 160 A 2d 832) Administrative agencies may enforce subpoenas issued in the course of investigations, whether or not adjudication is involved, and whether or not probable cause is shown. (1 Davis, Administrative Law Treatise 171) and even before the issuance of a complaint. [NLRB v. Anchor Rome Mills, Inc., 197 F. 2d 447 (5th Cir. 1952)]. It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose. [18 Oklahoma Press Pub. Co. v. Walling, 327 US 185 (1946)]. The purpose of the subpoena is to discover evidence, not to prove a pending charge, but upon which to make one if the discovered evidence so justifies. [SEC v. Vacuum Can Co., 157 F. 2d 530, cert den 330 US 820 (1947)]. Its obligation cannot rest on a trial of the value of testimony sought; it is enough that the proposed investigation be for a lawfully authorized purpose, and that the proposed witness be claimed to have information that might shed some helpful light. (Marchitto v. Waterfront Commission of New York Harbor, 160 A 2d 832). Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues on litigations it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. The administrative agency has the power of inquisition which is not dependent upon a case or controversy in order to get evidence, but can investigate merely on suspicion that the law is being violated or even just because it wants assurance that

it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too may take steps to inform itself as to whether there is probable violation of the law. [United States v. Morton Salt Co., 338 US 632 (1950), abandoning the Harriman, 211 US 407; (1908) and American Tobacco, 264 US 298; (1924) doctrine against "fishing expedition"] In sum, it may be stated that a subpoena meets the requirements for enforcement if the inquiry is (1) within the authority of the agency; (2) the demand is not too indefinite; and (3) the information is reasonably relevant. [Adams v. FTC 296 F, 2d 861, cert den 369 US 864 (1962)] We are mindful that the privilege against self-incrimination extends in administrative investigations, generally, in scope similar to adversary proceedings. (Rights of Witnesses in Administrative Investigations, 54 Harv. L. Rev. 1214) Cabal v. Kapunan, Jr., L-19052, 29 Dec. 1962, 6 SCRA 1064 Since the administrative charge of unexplained wealth against the respondent therein may result in the forfeiture of the property under the Anti-Graft and Corrupt Practices Act, a proceeding criminal or penal in nature, the complainant cannot call the respondent to the witness stand without encroaching upon his constitutional privilege against self-incrimination. Pascual, Jr. v. Board of Medical Examiners, L-25018, 26 May 1969, 28 SCRA 345 the same approach was followed in the administrative proceedings against a medical practitioner that could possibly result in the loss of his privilege to practice the medical profession. Nevertheless, in the present case, We find that respondent Fernando Manalastas is not facing any administrative charge. He is merely cited as a witness in connection with the fact-finding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or to file the corresponding charges. Since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege would thus be unwise. (Rights

of Witnesses in Administrative Investigations, 54 Harv. L. Rev. 1214). Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his privilege against self-incrimination. For reasons of public policy, the constitutionality of executive orders, which are commonly said to have the force and effect of statutes. (US v. Borja, 191 F. Supp 563, 566; Farkas vs. Texas Instrument, Inc., 375 F. 2d 629, 632, dert den 389 US 977) cannot be collaterally impeached. (San Miguel Brewery, Inc. vs. Magno, L-21879, 29 Sept. 1967, 21 SCRA 297). Much more when the issue was not duly pleaded in the court below as to be acceptable for adjudication now. (Modern Constitutional Law, Antieau 1969 ed., 648). The settled rule is that the Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. [Petite vs. United States, 361 US 529 (1960)] Carmelo vs Ramos, 116 Phil 1152 (1962) The rule is that Rule 64 (Contempt)1 of the Rules of Court applies only to inferior and superior courts and does not comprehend contempt committed against administrative officials or bodies like the one in this case, unless said contempt is clearly considered and expressly defined as contempt of court, as is done in paragraph 2 of Section 580 of the Revised Administrative Code. (People v. Mendoza; People v. Dizon, 49 O. G. No. 2, 541.) Francia v. Pecson, et al., 87 Phil. 100 One who invokes this provision of the law must first show that he has "authority to take testimony or evidence" before he can apply to the courts for the punishment of hostile witnesses. "Were (sic) do not think the mayor (of Manila) can delegate or confer the powers to administer oaths, to take testimony, and to issue subpoenas." Magsangcay vs COMELEC, 6 SCRA 27 (1962)

The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates courts, and, consequently, in the administration of justice (Slade Perkins v. Director of Prisons, 58 Phil., 271; U.S. v. Lee Hoc, 36 Phil., 867; In Re Sotto, 46 O.G., 2570; In Re Kelly, Phil., 944). The exercise of this power has always been regarded as a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, 58 Phil., 271). Its exercise by administrative bodies has been invariably limited to making effective the power to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that power by an administrative body in furtherance of its administrative function has been held invalid (Langenberg v. Lecker, 31 N.E., 190; In Re Sims, 37 P., 135; Roberts v. Hacney, 58 SW., 810). Gaoiran vs Alcala, 444 SCRA 428 (2005) – Anonymous complaints It is not totally uncommon that a government agency is given a wide latitude in the scope and exercise of its investigative powers. After all, in administrative proceedings, technical rules of procedure and evidence are not strictly applied. Montemayor v. Bundallan, 405 SCRA 264 (2003). Civil Service Commission v. Court of Appeals, G.R. No. 147009, March 11, 2004. the "complaint" under E.O. No. 292 and CSC rules on administrative cases "both refer to the actual charge to which the person complained of is required to answer and indicate whether or not he elects a formal investigation should his answer be deemed not satisfactory." What is repugnant to due process is the denial of the opportunity to be heard. Escleo v. Dorado, 385 SCRA 554 (2002). •

Quasi-Legislative/Rule-Making Power

Pharmaceutical and Health Care Association of the Philippines vs Duque, 535 SCRA 265 (2007) Equi-Asia Placement, Inc. vs. Department of Foreign Affairs, G.R. No. 152214, September 19, 2006: x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public interest," "justice and equity," "public convenience and welfare," and "simplicity, economy and welfare." An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to make rules and regulations which results in delegated legislation that is within the confines of the granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers. [Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 145, 155156 (2003)]. Such express grant of rule-making power necessarily includes the power to amend, revise, alter, or repeal the same. (Yazaki Torres Manufacturing, Inc. v. Court of Appeals, G.R. No. 130584, June 27, 2006, 493 SCRA 86, 97) This is to allow administrative agencies flexibility in formulating and adjusting the details and manner by which they are to implement the provisions of a law [Smart Communications, Inc. v. National Telecommunications Commission, 456 Phil. 156 (2003)] in order to make it more responsive to the times. Hence, it is a standard provision in administrative rules that prior issuances of administrative agencies that are inconsistent therewith are declared repealed or modified. Philippine National Oil Co. vs CA, 457 SCRA 32 (2001) When there appears to be an inconsistency or conflict between two statutes and one of the statutes is a general law, while the other is a special law, then repeal by implication is not the primary rule applicable. The following rule should principally govern instead: Specific legislation upon a particular subject is not affected by a general law upon the same subject unless it clearly appears that the provisions of the two laws are so repugnant that the legislators must

have intended by the later to modify or repeal the earlier legislation. The special act and the general law must stand together, the one as the law of the particular subject and the other as the general law of the land. (Ex Parte United States, 226 U. S., 420; 57 L. ed., 281; Ex Parte Crow Dog, 109 U. S., 556; 27 L. ed., 1030; Partee vs. St. Louis & S. F. R. Co., 204 Fed. Rep., 970.) Lichauco & Company, Inc. v. Apostol, et al., 44 Phil 138, 146-147 (1922). Where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as the Legislature is not to be presumed to have intended a conflict. (Crane v. Reeder and Reeder, 22 Mich., 322, 334; University of Utah vs. Richards, 77 Am. St. Rep., 928.) It has, thus, become an established rule of statutory construction that between a general law and a special law, the special law prevails – Generalia specialibus non derogant. [Manila Railroad Co. v. Rafferty, 40 Phil 224 (1919)] Sustained herein is the contention of private respondent Savellano that P.D. No. 242 is a general law that deals with administrative settlement or adjudication of disputes, claims and controversies between or among government offices, agencies and instrumentalities, including government-owned or controlled corporations. Its coverage is broad and sweeping, encompassing all disputes, claims and controversies. It has been incorporated as Chapter 14, Book IV of E.O. No. 292, otherwise known as the Revised Administrative Code of the Philippines. (National Power Corporation v. Hon. Presiding Judge, RTC, Br. XXV, G.R. No. 72477, 16 October 1990, 190 SCRA 477) On the other hand, Rep. Act No. 1125 is a special law [Mison v. Natividad, G.R. No. 82586, 11 September 1992, 213 SCRA 734;

Marubeni Corporation v. Commissioner of Internal Revenue, G.R. No. 76573, 14 September 1989, 177 SCRA 500; Papa, et al. v. Mago, et al., 130 Phil 886 (1968)] dealing with a specific subject matter – the creation of the CTA, which shall exercise exclusive appellate jurisdiction over the tax disputes and controversies enumerated therein. Following the rule on statutory construction involving a general and a special law previously discussed, then P.D. No. 242 should not affect Rep. Act No. 1125. Rep. Act No. 1125, specifically Section 7 thereof on the jurisdiction of the CTA, constitutes an exception to P.D. No. 242. Disputes, claims and controversies, falling under Section 7 of Rep. Act No. 1125, even though solely among government offices, agencies, and instrumentalities, including government-owned and controlled corporations, remain in the exclusive appellate jurisdiction of the CTA. Such a construction resolves the alleged inconsistency or conflict between the two statutes, and the fact that P.D. No. 242 is the more recent law is no longer significant. Even if, for the sake of argument, that P.D. No. 242 should prevail over Rep. Act No. 1125, the present dispute would still not be covered by P.D. No. 242. Section 1 of P.D. No. 242 explicitly provides that only disputes, claims and controversies solely between or among departments, bureaus, offices, agencies, and instrumentalities of the National Government, including constitutional offices or agencies, as well as government-owned and controlled corporations, shall be administratively settled or adjudicated. While the BIR is obviously a government bureau, and both PNOC and PNB are government-owned and controlled corporations, respondent Savellano is a private citizen. His standing in the controversy could not be lightly brushed aside. It was private respondent Savellano who gave the BIR the information that resulted in the investigation of PNOC and PNB; who requested the BIR Commissioner to reconsider the compromise agreement in question; and who initiated CTA Case No. 4249 by filing a Petition for Review. Hilado v. Collector of Internal Revenue, et al., 100 Phil 288 (1956) An administrative officer, such as the BIR Commissioner, may revoke, repeal or abrogate the acts or previous rulings of his

predecessor in office. The construction of a statute by those administering it is not binding on their successors if, thereafter, the latter becomes satisfied that a different construction should be given. As a general rule, the Government cannot be estopped from collecting taxes by the mistake, negligence, or omission of its agents [Atlas Consolidated Mining and Development Corp. v. Commissioner of Internal Revenue, G.R. No. L-26911, 27 January 1981, 102 SCRA 246; Philippine Guaranty Company, Inc. v. Commissioner of Internal Revenue, et al., 121 Phil 755 (1965)] because: . . . Upon taxation depends the Government ability to serve the people for whose benefit taxes are collected. To safeguard such interest, neglect or omission of government officials entrusted with the collection of taxes should not be allowed to bring harm or detriment to the people, in the same manner as private persons may be made to suffer individually on account of his own negligence, the presumption being that they take good care of their personal affairs. This should not hold true to government officials with respect to matters not of their own personal concern. This is the philosophy behind the government's exception, as a general rule, from the operation of the principle of estoppel. (Republic vs. Caballero, L27437, September 30, 1977, 79 SCRA 177; Manila Lodge No. 761, Benevolent and Protective Order of the Elks, Inc. vs. Court of Appeals, L-41001, September 30, 1976, 73 SCRA 162; Sy vs. Central Bank of the Philippines, L-41480, April 30, 1976, 70 SCRA 571; Balmaceda vs. Corominas & Co., Inc., 66 SCRA 553; Auyong Hian vs. Court of Tax Appeals, 59 SCRA 110; Republic vs. Philippine Rabbit Bus Lines, Inc., 66 SCRA 553; Republic vs. Philippine Long Distance Telephone Company, L-18841, January 27, 1969, 26 SCRA 620; Zamora vs. Court of Tax Appeals, L-23272, November 26, 1970, 36 SCRA 77; E. Rodriguez, Inc. vs. Collector of Internal Revenue, L23041, July 31, 1969, 28 SCRA 119). Commissioner of Internal Revenue vs Central Luzon Drug Corporation, 456 SCRA 414 (2005) The law cannot be amended by a mere regulation. In fact, a regulation that "operates to create a rule out of harmony with the statute is a mere nullity" [Commissioner of Internal Revenue v. Vda. de Prieto, 109 Phil. 592, 597, September 30, 1960, per Gutierrez

David, J. (citing Miller v. US, 294 US 435, 439-441, 55 S.Ct. 440,442, March 4, 1935; and Lynch v. Tilden Produce Co., 265 US 315, 321322, 44 S.Ct. 488, 490, May 26, 1924)], it cannot prevail. It is a cardinal rule that courts "will and should respect the contemporaneous construction placed upon a statute by the executive officers whose duty it is to enforce it x x x." [Molina v. Rafferty, 37 Phil. 545, 555, February 1, 1918, per Malcolm, J. (citing Government ex rel. Municipality of Cardona v. Municipality of Binangonan, 34 Phil. 518, 520-521, March 29, 1916; In re Allen, 2 Phil. 630, 640, October 29, 1903; and Pennoyer v. McConnaughy, 11 S.Ct. 699, 706, April 20, 1891)]In the scheme of judicial tax administration, the need for certainty and predictability in the implementation of tax laws is crucial. [Lim Hoa Ting v. Central Bank of the Philippines, 104 Phil. 573, 580, September 24, 1958 (citing Griswold,A Summary of the Regulations Problem, 54 Harvard Law Review 3, 398, 406, January 1941)]. Our tax authorities fill in the details that "Congress may not have the opportunity or competence to provide." (Eastern Shipping Lines, Inc. v. Philippine Overseas Employment Administration, 166 SCRA 533, 544, October 18, 1988). The regulations these authorities issue are relied upon by taxpayers, who are certain that these will be followed by the courts. (Lim Hoa Ting v. Central Bank of the Philippines, 104 Phil. 573, 580) Courts, however, will not uphold these authorities’ interpretations when clearly absurd, erroneous or improper. The administrative agency issuing these regulations may not enlarge, alter or restrict the provisions of the law it administers; it cannot engraft additional requirements not contemplated by the legislature. (Pilipinas Kao, Inc. v. CA, 423 Phil. 834, 858, December 18, 2001) In case of conflict, the law must prevail, (Wise & Co., Inc. v. Meer, 78 Phil. 655, 676, June 30, 1947) A "regulation adopted pursuant to law is law." (Macailing v. Andrada, 31 SCRA 126, 139, January 30, 1970) Conversely, a regulation or any portion thereof not adopted pursuant to law is no law and has neither the force nor the effect of law. (Banco Filipino Savings and Mortgage Bank v. Hon. Navarro, 158 SCRA 346, 354, July 28, 1987; andValerio v. Secretary of Agriculture & Natural Resources, 117 Phil. 729, 733, April 23, 1963)

Where the words of a statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation." [National Federation of Labor v. NLRC, 383 Phil. 910, 918, March 2, 2000, per De Leon Jr., J. (quotingFianza v. People’s Law Enforcement Board, 243 SCRA 165, 178, March 31, 1995] x x x [T]he rule is that on a specific matter the special law shall prevail over the general law, which shall be resorted to only to supply deficiencies in the former." (Leyte Asphalt & Mineral Oil Co., Ltd. v. Block, Johnston & Greenbaum, 52 Phil. 429, 432, December 14, 1928). In addition, "[w]here there are two statutes, the earlier special and the later general -- the terms of the general broad enough to include the matter provided for in the special -- the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, (City Mayor v. The Chief Police Constabulary, 128 Phil. 674, 687, October 31, 1967) one as a general law of the land, the other as the law of a particular case." [Manila Railroad Co. v. Rafferty, 40 Phil. 224, 229, September 30, 1919, per Johnson, J. (citing State v. Stoll, 84 US 425, 431, 436, 17 Wall. 425, 431, 436, October term, 1873)] "It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute." [Manila Railroad Co. v. Rafferty, 40 Phil. 224, 229, September 30, 1919, per Johnson, J. (citing Minnesota v. Hitchcock, 185 US, 373, 396-397, 22 S.Ct. 650, 659, May 5, 1902, Cass County v. Gillett, 100 US 585, 593, 10 Otto 585, 593, October term, 1879; and New Jersey Steamboat Co. v. Collector, 85 US 478, 490-491, 18 Wall 478, 490491, October term, 1873)] •

Conditions for Validity of Delegated Legislation

Eastern Shipping Lines vs POEA, 166 SCRA 533 (1988) There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. (People v. Vera 65 Phil. 56) Under the sufficient

standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. (Cervantes v. Auditor General, 91 Phil. 359; People v. Rosen that 68 Phil. 328) Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. The principle of non-delegation of powers is applicable to all the three major powers of the Government but is especially important in the case of the legislative power because of the many instances when its delegation is permitted. The occasions are rare when executive or judicial powers have to be delegated by the authorities to which they legally certain. In the case of the legislative power, however, such occasions have become more and more frequent, if not necessary. This had led to the observation that the delegation of legislative power has become the rule and its non-delegation the exception. The reason is the increasing complexity of the task of government and the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of the problems attendant upon present-day undertakings, the legislature may not have the competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them. Parenthetically, it is recalled that this Court has accepted as sufficient standards "Public interest" in People v. Rosenthal 68 Phil. 328, "justice and equity" in Antamok Gold Fields v. CIR, 70 Phil. 340, "public convenience and welfare" in Calalang v. Williams, 70 Phil. 726, and "simplicity, economy and efficiency" in Cervantes v. Auditor General, 91 Phil. 359, to mention only a few cases. In the United States, the "sense and experience of men" was accepted in Mutual Film Corp. v. Industrial Commission, 236 U.S. 247, and "national security" in Hirabayashi v. United States, 320 U.S. 99.

People vs Vera, 65 Phil 56 (1937) In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.) The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action — or the sufficiency thereof — in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.)

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). Cebu Institute of Technology vs Ople, 156 SCRA 692 (1987) – Binding force and effect – Borja Rules and regulations promulgated in accordance with the power conferred by law would have the force and effect of law [Victorias Milling Company, Inc. v. Social Security Commission, 114 Phil. 555 (1962)] if the same are germane to the subjects of the legislation and if they conform with the standards prescribed by the same law [People v. Maceren, G.R. No. L-32166, October 18, 1977, 79 SCRA 450]. Since the implementing rules and regulations cited by the private schools adds allowances and other benefits to the items included in the allocation of 60% of the proceeds of tuition fee increases expressly provided for by law, the same were issued in excess of the rule-making authority of said agency, and therefore without binding effect upon the courts. At best the same may be treated as administrative interpretations of the law and as such, they may be set aside by this Court in the final determination of what the law means. The statutory grant of rule-making power to administrative agencies like the Secretary of Education is a valid exception to the rule on nondelegation of legislative power provided two conditions concur, namely: 1) the statute is complete in itself, setting forth the policy to be executed by the agency, and 2) said statute fixes a standard to which the latter must conform [Vigan Electric Light Co., Inc. v. Public Service Commission, G.R. No. L-19850, January 30, 1964, and Pelaez v. Auditor General, G. R. No. L-23825, December 24, 1965].

While a day in court is a matter of right in judicial proceedings, in administrative proceedings it is otherwise since they rest upon different principles." [Cornejo v. Gabriel and Provincial Board of Rizal, 41 Phil. 188 (1920); Tajonera v. Lamaroza, G.R. Nos. L-48907 and L49035, December 19,1981, 110 SCRA 438].

CASES ON SEPARATION OF POWERS AND LAW ON PUBLIC OFFICERS Separation of Powers Belgica vs Ochoa, G.R. No. 208566, November 19, 2013 The "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." [Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)].To the legislative branch of government, through Congress, (Section 1, Article VI, 1987 Constitution) belongs the power to make laws; to the executive branch of government, through the President, (Section 1, Article VII, 1987 Constitution) belongs the power to enforce laws; and to the judicial branch of government, through the Court, (Section 1, Article VIII, 1987 Constitution) belongs the power to interpret laws. It is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power of judicial power. There is a violation of the separation of powers principle when one branch of government unduly encroaches on the domain of another The principle of separation of powers may be violated in two (2) ways: 1) "one branch may interfere impermissibly with the other’s performance of its constitutionally assigned function" [Nixon v. Administrator of General Services, 433 U.S. 425, 441-446 and 451452 (1977) and United States v. Nixon, 418 U.S. 683 (1974), cited in

Justice Powell‘s concurring opinion in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)]; 2) "alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another." [Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 587 (1952), Springer v. Philippine Islands, 277 U.S. 189, 203 (1928) cited in Justice Powell’s concurring opinion in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)] General Considerations Governing Public Officers •

State Immunity from Suit

Department Of Health, the Secretary Of Health, and Ma. Margarita M. Galon, vs. PHIL Pharma Wealth, Inc., G.R. No. 182358, February 20, 2013 Department of Agriculture v. National Labor Relations Commission, G.R. No. 104269, November 11, 1993, 227 SCRA 693. The basic postulate enshrined in the constitution that ‘(t)he State may not be sued without its consent,’ reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of sovereignty. x x x [A] sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. True, the doctrine, not too infrequently, is derisively called ‘the royal prerogative of dishonesty’ because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. We have had occasion to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted.

The rule, in any case, is not really absolute for it does not say that the state may not be sued under any circumstance. On the contrary, as correctly phrased, the doctrine only conveys, ‘the state may not be sued without its consent;’ its clear import then is that the State may at times be sued. The State’s consent may be given either expressly or impliedly. Express consent may be made through a general law or a special law. x x x Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it enters into a contract. In this situation, the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. This rule, x x x is not, however, without qualification. Not all contracts entered into by the government operate as a waiver of its nonsuability; distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity As a general rule, a state may not be sued. However, if it consents, either expressly or impliedly, then it may be the subject of a suit. There is express consent when a law, either special or general, so provides. On the other hand, there is implied consent when the state "enters into a contract or it itself commences litigation." However, it must be clarified that when a state enters into a contract, it does not automatically mean that it has waived its non-suability. The State "will be deemed to have impliedly waived its non-suability [only] if it has entered into a contract in its proprietary or private capacity. [However,] when the contract involves its sovereign or governmental capacity[,] x x x no such waiver may be implied." [United States of America v. Judge Guinto, 261 Phil. 777, 790 (1990)]. "Statutory provisions waiving [s]tate immunity are construed in strictissimi juris. For, waiver of immunity is in derogation of sovereignty." [Equitable Insurance and Casualty Co., Inc. v. Smith, Bell & Co. (Phils.), Inc., 127 Phil. 547, 549 (1967)]. Air Transportation Office v. Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36. An unincorporated government agency without any separate juridical personality of its own enjoys immunity from suit because it is invested

with an inherent power of sovereignty. Accordingly, a claim for damages against the agency cannot prosper; otherwise, the doctrine of sovereign immunity is violated. However, the need to distinguish between an unincorporated government agency performing governmental function and one performing proprietary functions has arisen. The immunity has been upheld in favor of the former because its function is governmental or incidental to such function; it has not been upheld in favor of the latter whose function was not in pursuit of a necessary function of government but was essentially a business. It is settled that if a Complaint seeks to "impose a charge or financial liability against the state," [Department of Health v. Phil Pharmawealth, Inc., 547 Phil. 148, 154 (2007)] the defense of nonsuability may be properly invoked. the doctrine of state immunity extends its protective mantle also to complaints filed against state officials for acts done in the discharge and performance of their duties. [United States of America v. Judge Guinto, 261 Phil. 777, 790 (1990)]. "The suability of a government official depends on whether the official concerned was acting within his official or jurisdictional capacity, and whether the acts done in the performance of official functions will result in a charge or financial liability against the government." [Department of Health v. Phil Pharmawealth, Inc., 547 Phil. 148, 153 (2007)] Otherwise stated, "public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is showing of bad faith." [M. H. Wylie v. Rarang, G.R. No. 74135, May 28, 1992, 209 SCRA 357, 368] United States of America v. Reyes, G.R. No. 79253, March 1, 1993, 219 SCRA 192] x x x The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the

moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. Moreover, "[t]he rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state x x x. In such a situation, the state may move to dismiss the [C]omplaint on the ground that it has been filed without its consent." "[t]he essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. What is offensive to due process is the denial of the opportunity to be heard. The Court has repeatedly stressed that parties who chose not to avail themselves of the opportunity to answer charges against them cannot complain of a denial of due process." [Flores v. Montemavor, Ci.R. No. 170146. llll''~ 1' .. 20 i i, 651 SCEA 396, 406-407] •

Government is not bound by errors of public officers

Intra-Strata Assurance Corporation and Philippine Home Assurance Corporation, vs. Republic of the Philippines, represented by the Bureau of Customs, G.R. No. 156571, July 9, 2008 Republic of the Philippines v. Heirs of Felix Caballero, G.R. No. L27473, September 30, 1977, 208 SCRA 726 It has long been a settled rule that the government is not bound by the errors committed by its agents. Estoppel does not also lie against the government or any of its agencies arising from unauthorized or illegal acts of public officers.

Caltex Philippines v. COA, G.R. No. 92585, May 8, 1992, 208 SCRA 726 This is particularly true in the collection of legitimate taxes due where the collection has to be made whether or not there is error, complicity, or plain neglect on the part of the collecting agents CIR v. CTA, G.R. No. 106611, July 21, 1994, 243 SCRA 348 It is axiomatic that the government cannot and must not be estopped particularly in matters involving taxes. Taxes are the lifeblood of the nation through which the government agencies continue to operate and with which the State effects its functions for the welfare of its constituents. Thus, it should be collected without unnecessary hindrance or delay. • Presumption of Regularity in the Performance of Official Duty Erlinda R. Velayo-Fong, vs. Spouses Raymond and Maria Hedy Velayo, G.R. No. 155488, December 6, 2006 Between the claim of non-receipt of summons by a party against the assertion of an official whose duty is to send notices, the latter assertion is fortified by the presumption that official duty has been regularly performed. [Section 3(m), Rule 131 of the Revised Rules on Evidence] To overcome the presumption of regularity of performance of official functions in favor of such Officer's Return, the evidence against it must be clear and convincing. Petitioner having been unable to come forward with the requisite quantum of proof to the contrary, the presumption of regularity of performance on the part of the process server stands. •

Power of Control, Supervision, and Control

Carpio vs. Executive Secretary, G.R. No. 96409 February 14, 1992 This presidential power of control over the executive branch of government extends over all executive officers from Cabinet Secretary to the lowliest clerk [The Constitution, A Commentary. By

Fr. Joaquin Bernas, S.J., Vol. II, 2nd Ed. (1988), p. 203-204] and has been held by us, in the landmark case of Mondano vs. Silvosa, 97 Phil. 143 (1955), to mean "the power of [the President] to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter." It is said to be at the very "heart of the meaning of Chief Executive." •

Three-fold responsibility/liability

People v. Sandiganbayan, G.R. No. 164577, July 5, 2010, 623 SCRA 147 Indeed, the dismissal of an administrative case does not bar the filing of a criminal prosecution for the same or similar acts subject of the administrative complaint. Neither does the disposition in one case inevitably govern the resolution of the other case/s and vice versa. Administrative liability is one thing; criminal liability for the same act is another. (Paredes v. Sandiganbayan, CA, G.R. No. 108251, January 31, 1996) Paredes v. CA, G.R. No. 169534, July 30, 2007 The distinct and independent nature of one proceeding from the other can be attributed to the following: first, the difference in the quantum of evidence required and, correlatively, the procedure observed and sanctions imposed; and second, the principle that a single act may offend against two or more distinct and related provisions of law, or that the same act may give rise to criminal as well as administrative liability. Although the dismissal of the criminal case cannot be pleaded to abate the administrative proceedings primarily on the ground that the quantum of proof required to sustain administrative charges is significantly lower than that necessary for criminal actions, the same does not hold true if it were the other way around, that is, the dismissal of the administrative case is being invoked to abate the criminal case. The reason is that the evidence presented in the administrative case may not necessarily be the same evidence to be presented in the criminal case. The prosecution is certainly not

precluded from adducing additional evidence to discharge the burden of proof required in the criminal cases. However, if the criminal case will be prosecuted based on the same facts and evidence as that in the administrative case, and the court trying the latter already squarely ruled on the absence of facts and/or circumstances sufficient to negate the basis of the criminal indictment, (Nicolas v. Sandiganbayan, G.R. Nos. 175930-31, February 11, 2008) then to still burden the accused to present controverting evidence despite the failure of the prosecution to present sufficient and competent evidence, will be a futile and useless exercise. Judicial Review •

Doctrine of Primary Jurisdiction

The Province of Aklan, Petitioner, vs. Jody King Construction And Development Corp., G.R. Nos. 197592 & 20262, November 27, 2013 The doctrine of primary jurisdiction holds that if a case is such that its determination requires the expertise, specialized training and knowledge of the proper administrative bodies, relief must first be obtained in an administrative proceeding before a remedy is supplied by the courts even if the matter may well be within their proper jurisdiction. [Industrial Enterprises, Inc. v. Court of Appeals, 263 Phil. 352, 358 (1990)] It applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative agency. In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case without prejudice. [EuroMed Laboratories Phil., Inc. v. Province of Batangas, 527 Phil. 623, 626-627 (2006)]

The objective of the doctrine of primary jurisdiction is to guide the court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. [Fabia v. Court of Appeals, 437 Phil. 389, 403 (2002)] The court may raise the issue of primary jurisdiction sua sponte and its invocation cannot be waived by the failure of the parties to argue it as the doctrine exists for the proper distribution of power between judicial and administrative bodies and not for the convenience of the parties. [Euro-Med Laboratories Phil., Inc. v. Province of Batangas, 527 Phil. 627-629 (2006)] There are established exceptions to the doctrine of primary jurisdiction, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings. [Rep. of the Phils. v. Lacap, 546 Phil. 87, 97-98 (2007), citing Rocamora v. RTC-Cebu (Br. VIII), 249 Phil. 571, 579 (1988); Hon. Carale v. Hon. Abarintos, 336 Phil. 126, 137 (1997); and Castro v. Sec. Gloria, 415 Phil. 645, 651-652 (2001)] The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction

over which is initially lodged with an administrative body of special competence. [Heirs of Tantoco, Sr. v. Court of Appeals, 523 Phil. 257, 284 (2006), citing First Lepanto Ceramics, Inc. v. Court of Appeals, G.R. No. 117680, February 9, 1996, 253 SCRA 552, 558; Machete v. Court of Appeals, 320 Phil. 227, 235 (1995); and Vidad v. RTC of Negros Oriental, Br. 42, G.R. Nos. 98084, 98922 & 10030003, October 18, 1993, 227 SCRA 271, 276] All the proceedings of the court in violation of the doctrine and all orders and decisions rendered thereby are null and void. [Agra v. Commission on Audit, G.R. No. 167807, December 6, 2011, 661 SCRA 563, 582] Since a judgment rendered by a body or tribunal that has no jurisdiction over the subject matter of the case is no judgment at all, it cannot be the source of any right or the creator of any obligation. All acts pursuant to it and all claims emanating from it have no legal effect and the void judgment can never be final and any writ of execution based on it is likewise void. [Ga, Jr. v. Tubungan, G.R. No. 182185, September 18, 2009, 600 SCRA 739, 746] •

Doctrine of Exhaustion of Administrative Remedies

Samar II Electric Cooperative, Inc. (SAMELCO II) and its Board of Directors, composed of Deborah T. Marco (Immediate Past President), Atty. Medino L. Acuba, Engr. Manuel C. Orejola, Alfonso F. Quilapio, Raul De Guzman and Ponciano R. Rosales (General Manager and Ex OfficioDirector), G.R. No. 173840, April 25, 2012 It may not be amiss to reiterate the prevailing rule that the doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special competence of an administrative agency.9 In such a case, the court in which the claim is sought to be enforced may suspend the judicial process pending referral of such issues to the administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss the case without prejudice. [Rosito Bagunu v. Spouses Francisco Aggabao and Rosenda Acerit, G.R. No. 186487, August 15, 2011; Phil Pharmawealth, Inc. v. Pfizer,

Inc. and Pfizer (Phil.) Inc., G.R. No. 167715, November 17, 2010, 635 SCRA 140, 153; Euro-Med Laboratories Phil., Inc. v. The Province of Batangas, G.R. No. 148106, July 17, 2006, 495 SCRA 301, 305] City Engineer of Baguio v. Baniqued, G.R. No. 150270, November 26, 2008, 571 SCRA 617, 627-628;Buston-Arendain v. Gil, G.R. No. 172585, June 26, 2008, 555 SCRA 561, 572; Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109853, October 11, 2000, 342 SCRA 549, 557 Corollary to the doctrine of primary jurisdiction is the principle of exhaustion of administrative remedies. Before a party is allowed to seek the intervention of the courts, it is a pre-condition that he avail himself of all administrative processes afforded him. Hence, if a remedy within the administrative machinery can be resorted to by giving the administrative officer every opportunity to decide on a matter that comes within his jurisdiction, then such remedy must be exhausted first before the court’s power of judicial review can be sought. The premature resort to the court is fatal to one’s cause of action. Accordingly, absent any finding of waiver or estoppel, the case may be dismissed for lack of cause of action. True, the doctrines of primary jurisdiction and exhaustion of administrative remedies are subject to certain exceptions, to wit: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) where the application of the doctrine may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) where the issue of non-exhaustion of administrative remedies has been rendered moot; (j) where there is no other plain, speedy and adequate remedy; (k) where strong public interest is involved; and (l) in quo warranto proceedings. (Vigilar v. Aquino, G.R. No. 180388, January 18, 2011, 639 SCRA 772, 777, citing Republic of the

Philippines v. Lacap, G.R. No. 158253, March 2, 2007, 517 SCRA 255, 265-266)

CASES ON ADMINISTRATIVE DISCIPLINE • Jurisdiction of the Civil Service Commission The Civil Service Commission vs. Henry A. Sojor, G.R. No. 168766, May 22, 2008 The Constitution grants to the CSC administration over the entire civil service. (Constitution (1987), Art. IX(B), Sec. 1) As defined, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation. (The Administrative Code (1987), Sec. 6; id., Sec. 2) When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter. (Enrique v. Court of Appeals, G.R. No. 79072, January 10, 1994, 229 SCRA 180, citing Government Service Insurance System v. Civil Service Commission, G.R. No. 87146, December 11, 1991, 204 SCRA 826) University of the Philippines v. Regino, G.R. No. 88167, May 3, 1993, 221 SCRA 598. The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a) provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied) Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were

considered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states: "The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters." Camacho v. Gloria, G.R. No. 138862, August 15, 2003, 409 SCRA 174. The Civil Service Rules embodied in Executive Order 292 recognize the power of the Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either with the university’s Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a complaint and for that purpose, may deputize any department, agency, official or group of officials to conduct such investigation. (Executive Order No. 292, Sec. 47) Academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admitted to study. (Miriam College Foundation, Inc. v. Court of Appeals, G.R. No. 127930, December 15, 2000, 348 SCRA 265) Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general public so requires. [Camacho v. Coresis, 436 Phil. 449 (2002)] They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to enroll a student.( Tangonan v. Paño, G.R. No. L-45157, June 27, 1985, 137 SCRA 245)

The guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis.( Benguet State University v. Commission on Audit, G.R. No. 169637, June 8, 2007) For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. The doctrine this Court laid down in Salalima v. Guingona, Jr. (G.R. Nos. 117589-92, May 22, 1996, 257 SCRA 55) and Aguinaldo v. Santos (G.R. No. 94115, August 21, 1992, 212 SCRA 768) are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. (People v. Jalosjos, G.R. Nos. 132875-76, February 3, 2000, 381 SCRA 690) Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a reappointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. •

Misconduct

Rolando Ganzon vs. Fernando Arlos, G.R. No. 174321, October 22, 2013 Misconduct is intentional wrongdoing or deliberate violation of a rule of law or standard of behavior. To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer. In grave misconduct, as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law, or flagrant disregard of an established rule must be manifest. (Narvasa v. Sanchez, Jr., G.R. No. 169449, March 26, 2010, 616 SCRA 586, 591) In accordance with Section 46 of Subtitle A, Title I, Book V of the Administrative Code of 1987 (Executive Order No. 292), misconduct

is among the grounds for disciplinary action, but no officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. It is cogent to mention that the Revised Uniform Rules on Administrative Cases in the Civil Service , which governs the conduct of disciplinary and nondisciplinary proceedings in administrative cases, classifies grave misconduct as a grave administrative offense. (Rule IV, Section 5, Revised Uniform Rules on Administrative Cases in the Civil Service, Civil Service Commission Memorandum Circular 19, Series of 1999, August 31, 1999) Largo v. Court of Appeals, G.R. No. 177244, November 20, 2007, 537 SCRA 721 the criteria that an act, to constitute a misconduct, must not be committed in his private capacity and should bear a direct relation to and be connected with the performance of his official duties. Alarilla v. Sandiganbayan, G.R. No. 136806, August 22, 2000, 338 SCRA 485, 497. An act is intimately connected to the office of the offender if it is committed as the consequence of the performance of the office by him, or if it cannot exist without the office even if public office is not an element of the crime in the abstract. an administrative case is not dependent on the conviction or acquittal of the criminal case because the evidence required in the proceedings therein is only substantial and not proof beyond reasonable doubt. An administrative case is, as a rule, independent from criminal proceedings.1âwphi1 The dismissal of a criminal case on the ground of insufficiency of evidence or the acquittal of an accused who is also a respondent in an administrative case does not necessarily preclude the administrative proceeding nor carry with it relief from administrative liability. This is because the quantum of proof required in administrative proceedings is substantial evidence, unlike in criminal cases which require proof beyond reasonable doubt. Substantial evidence, according to Section 5 of Rule 133, Rules of

Court, is "that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion." In contrast, proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty; moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. (Section 2, Rule 133, Rules of Court) Section 56 and Section 58 of the Revised Uniform Rules on Administrative Cases in the Civil Service respectively state that the penalty of dismissal shall result in the permanent separation of the respondent from the service, with or without prejudice to criminal or civil liability, and shall carry with it cancellation of eligibility, forfeiture of retirement benefits and the perpetual disqualification from reemployment in the government service, unless otherwise provided in the decision. • Back Salary City Mayor of Zamboanga, vs. Court of Appeals and Eustaquio C. Argana, G.R. No. 80270 February 27, 1990 Under Memorandum Circular No. 30, series of 1989 issued by the Civil Service Commission, "Disgraceful and Immoral Conduct" and "Grave Misconduct" are classified as grave offenses punishable by dismissal. In a long line of cases, [Gonzales vs. Hernandez, 2 SCRA 228 (1961); Villamar vs. Lacson, 12 SCRA 418 (1964); Abellera vs. City of Baguio, 19 SCRA 601 (1967); Avila vs. Gimenez, 27 SCRA 321 (1969)] this Court reiterated the principle that back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his suspension or dismissal is found and declared to be illegal. • Oppression, Grave Abuse of Authority, Substantial Evidence, Presumption of Regularity Ombudsman vs Caberoy, G.R. No. 188066, October 22, 2014

Oppression is also known as grave abuse of authority, which is a misdemeanor committed by a public officer, who under color of his office, wrongfully inflict upon any person any bodily harm, imprisonment or other injury. It is an act of cruelty, severity, or excessive use of authority. [Romero v. Villarosa, Jr., A.M. No. P-112913, April 12, 2011, 648 SCRA 32, 41-42; Spouses Stilgrove v. Sabas, 538 Phil. 232, 244 (2006)] To be held administratively liable for Oppression or Grave Abuse of Authority, there must be substantial evidence presented proving the complainant’s allegations. [Nedia v. Judge Laviña, 508 Phil. 9, 19 (2005)] Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. [Miro v. Mendoza Vda. de Erederos, G.R. Nos. 172532 and 17254445, November 20, 2013, 710 SCRA 371, 387] Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Section 43, Rule 130 of the Rules of Court, [KAR ASIA, Inc. v. Corona, 480 Phil. 627, 636 (2004)] Absent any evidence presented by Tuares showing the contrary, good faith must be presumed in the preparation and signing of such payrolls. [Sapio v. Undaloc Construction and/or Engr. Undaloc, 577 Phil. 39, 47 (2008)] It must be stressed that like other grave offenses classified under the Civil Service laws, bad faith must attend the act complained of. Bad faith connotes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. [Andrade v. Court of Appeals, 423 Phil. 30, 43 (2001)] in administrative cases, to be disciplined for grave misconduct or any grave offense, the evidence against the respondent should be competent and must be derived from direct knowledge. [Litonjua v. Justices Enriquez, Jr. and Abesamis, 482 Phil. 73, 100-101 (2004)] "Reliance on mere allegations, conjectures and suppositions will leave an administrative complaint with no leg to stand on." [SPO2 Alcover, Sr. v. Bacatan, 513 Phil. 77, 83 (2005), citing Alfonso v.

Ignacio, 487 Phil. 1, 7 (2004). Seealso Borromeo-Garcia v. Judge Pagayatan, 588 Phil. 11, 18 (2008)] •

Neglect of Duty

Ombudsman vs de Leon, G.R. No. 154083, February 27, 2013 Gross neglect of duty or gross negligence "refers to negligence characterized by the want of even slight care, or by acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally, with a conscious indifference to the consequences, insofar as other persons may be affected. It is the omission of that care that even inattentive and thoughtless men never fail to give to their own property." (Fernandez v. Office of the Ombudsman, G.R. No. 193983. March 14, 2012, 668 SCRA 351, 364) It denotes a flagrant and culpable refusal or unwillingness of a person to perform a duty. (Philippine Retirement Authority v. Rupa, G.R. No. 140519, August 21, 2001, 363 SCRA 480, 487) In cases involving public officials, gross negligence occurs when a breach of duty is flagrant and palpable. (Fernandez v. Office of the Ombudsman, G.R. No. 193983. March 14, 2012, 668 SCRA 351, 364) In contrast, simple neglect of duty means the failure of an employee or official to give proper attention to a task expected of him or her, signifying a "disregard of a duty resulting from carelessness or indifference." (Republic v. Canastillo, G.R. No. 172729, June 8, 2007, 524 SCRA 546, 555) •

Nepotism, Party Adversely Affected

Civil Service Commission, vs. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999 Sec. 59. Nepotism. — (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending

authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited. As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity. (Sec. 59, Executive Order 292, dated July 25, 1987) Clearly, there are four situations covered. In the last two mentioned situations, it is immaterial who the appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee. By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase 'party adversely affected by the decision' refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which, may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" (Mendez vs. Civil Service Commission, 204 SCRA 965, 967) and not included are "cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary" (Paredes vs. Civil Service Commission, 192 SCRA 84, 85) or "when the respondent is exonerated of the charges, there is no occasion for appeal." (Mendez vs. Civil Service Commission, 204 SCRA 965, 968) In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission, 192 SCRA 84; Mendez v. Civil Service Commission, 204 SCRA 965; Magpale v. Civil Service Commission, 215 SCRA 398; Navarro v. Civil Service Commission and Export Processing Zone Authority, 226 SCRA 207; and more recently Del Castillo v. Civil Service Commission, 241 SCRA 317. •

Administrative Due Proces

PO2 Ruel C. Montoya, vs. Police Director Reynaldo P. Varilla, Regional Director, National Capital Region, Police Office and Atty. Rufino Jeffrey L. Manere, Regional Legal Affairs Service, G.R. No. 180146, December 18, 2008 Though procedural rules in administrative proceedings are less stringent and often applied more liberally, administrative proceedings are not exempt from basic and fundamental procedural principles, such as the right to due process in investigations and hearings. The right to substantive and procedural due process is applicable to administrative proceedings. [Civil Service Commission v. Lucas, 361 Phil. 486, 491 (1999)] Well-settled is the rule that the essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. [Westmont Pharmaceuticals, Inc. v. Samaniego, G.R. Nos. 146653-54, 20 February 2006, 482 SCRA 611, 619] Unarguably, this rule, as it is stated, strips down administrative due process to its most fundamental nature and sufficiently justifies freeing administrative proceedings from the rigidity of procedural requirements. In particular, however, due process in administrative proceedings has also been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. [Fabella v. Court of Appeals, 346 Phil. 940, 952-953 (1997)] Hence, even if administrative tribunals exercising quasi-judicial powers are not strictly bound by procedural requirements, they are still bound by law and equity to observe the fundamental requirements of due process. Notice to enable the other party to be heard and to present evidence is not a mere technicality or a trivial

matter in any administrative or judicial proceedings. [National Power Corporation v. National Labor Relations Commission, 339 Phil. 89, 107 (1997); citing Philippine National Construction Corporation v. Ferrer-Calleja, G.R. No. L-80485, 11 November 1988, 167 SCRA 294, 301] In the application of the principle of due process, what is sought to be safeguarded is not lack of previous notice but the denial of the opportunity to be heard. [Vda. de Emnas v. Emnas, 184 Phil. 419, 424 (1980)] The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party’s right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. (State Prosecutors v. Muro, Adm. Matter No. RTJ-92876, 19 September 1994, 236 SCRA 505, 522-523; see also Paulin v. Gimenez, G.R. No. 103323, 21 January 1993, 217 SCRA 386, 392) The rule must be equally true for quasi-judicial administrative bodies, for the constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is unqualified by what type of proceedings (whether judicial or administrative) he stands to lose the same. Section 45 of Republic Act No. 6975, otherwise known as the DILG Act of 1990, provides: SEC. 45. Finality of Disciplinary Action. – The disciplinary action imposed upon a member of the PNP shall be final and executory: Provided, That a disciplinary action imposed by the Regional Director or by the PLEB involving demotion or dismissal from the service may be appealed to the Regional Appellate Board within ten (10) days from receipt of the copy of the notice of decision: Provided, further, That the disciplinary action imposed by the Chief of the PNP involving demotion or dismissal may be appealed to the National Appellate Board within ten (10) days from receipt thereof: Provided, furthermore, That, the Regional or National Appellate Board, as the case may be, shall decide the appeal within sixty (60) days from

receipt of the notice of appeal: Provided, finally, That failure of the Regional Appellate Board to act on the appeal within said period shall render the decision final and executory without prejudice, however, to the filing of an appeal by either party with the Secretary. (Underscoring supplied.) As a general rule, the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but also jurisdictional, and the failure to perfect the appeal renders the judgment of the court final and executory. [Videogram Regulatory Board v. Court of Appeals, 332 Phil. 820, 828 (1996)] A decision of the court (or, in this case, a quasi-judicial administrative body) without jurisdiction is null and void; hence, it can never logically become final and executory. Such a judgment may be attacked directly or collaterally. (Laresma v. Abellana, G.R. No. 140973, 11 November 2004, 442 SCRA 156, 169) Any judgment or decision rendered notwithstanding the violation of due process may be regarded as a "lawless thing which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head." (People v. Bocar, G.R. No. L-27935, 16 August 1985, 138 SCRA 166, 171) Civil Service Commission v. Dacoycoy.13 At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him. He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, herein respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service. Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of

the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. By this ruling, we now expressly abandon and overrule extant jurisprudence that "the phrase ‘party adversely affected by the decision’ refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office" and not included are "cases where the penalty imposed is suspension for not more than thirty (30) days or fine in an amount not exceeding thirty days salary" or "when the respondent is exonerated of the charges, there is no occasion for appeal." In other words, we overrule prior decisions holding that the Civil Service Law "does not contemplate a review of decisions exonerating officers or employees from administrative charges" enunciated in Paredes v. Civil Service Commission; Mendez v. Civil Service Commission; Magpale v. Civil Service Commission; Navarro v. Civil Service Commission and Export Processing Zone Authority and more recently Del Castillo v. Civil Service Commission. (Civil Service Commission v. Dacoycoy) National Appellate Board of the National Police Commission v. Mamauag, G.R. No. 149999, 12 August 2005, 466 SCRA 624, 641642, citing Mathay, Jr. v. Court of Appeals, 378 Phil. 466, 483-484 (1999)] RA 6975 itself does not authorize a private complainant to appeal a decision of the disciplining authority.Sections 43 and 45 of RA 6975 authorize "either party" to appeal in the instances that the law allows appeal. One party is the PNP member-respondent when the disciplining authority imposes the penalty of demotion or dismissal from the service. The other party is the government when the disciplining authority imposes the penalty of demotion but the government believes that dismissal from the services is the proper penalty. However, the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the

penalty of demotion or dismissal from the service. The government party appealing must be one that is prosecuting the administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent. Mathay, Jr. v. Court of Appeals, (decided after Dacoycoy) To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review." In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," not to litigate. Pleyto v. Philippine National Police Criminal Investigation and Detection Group, [G.R. No. 169982, 23 November 2007, 538 SCRA 534, 549] It is a well-known doctrine that a judge should detach himself from cases where his decision is appealed to a higher court for review. The raison d'etre for such doctrine is the fact that a judge is not an active combatant in such proceeding and must leave the opposing parties to contend their individual positions and the appellate court to decide the issues without his active participation. When a judge actively participates in the appeal of his judgment, he, in a way, ceases to be judicial and has become adversarial instead. The court or the quasi-judicial agency must be detached and impartial, not only when hearing and resolving the case before it, but even when its judgment is brought on appeal before a higher court. The judge of a court or the officer of a quasi-judicial agency must

keep in mind that he is an adjudicator who must settle the controversies between parties in accordance with the evidence and the applicable laws, regulations, and/or jurisprudence. His judgment should already clearly and completely state his findings of fact and law. There must be no more need for him to justify further his judgment when it is appealed before appellate courts. When the court judge or the quasi-judicial officer intervenes as a party in the appealed case, he inevitably forsakes his detachment and impartiality, and his interest in the case becomes personal since his objective now is no longer only to settle the controversy between the original parties (which he had already accomplished by rendering his judgment), but more significantly, to refute the appellant’s assignment of errors, defend his judgment, and prevent it from being overturned on appeal. Go v. National Police Commission, 338 Phil. 162, 171 (1997) We conclude that petitioner was denied the due process of law and that not even the fact that the charge against him is serious and evidence of his guilt is – in the opinion of his superiors – strong can compensate for the procedural shortcut evident in the record of this case. It is precisely in cases such as this that the utmost care be exercised lest in the drive to clean up the ranks of the police those who are innocent are denied justice or, through blunder, those who are guilty are allowed to escape punishment. Mendoza v. NAPOLCOM, G.R. No. 139658, 21 June 2005, 460 SCRA 399. The Court settled that the one and only Philippine police force, the PNP, shall be civilian in character (Section 6, Article XVI of the Constitution) and, consequently, falls under the civil service pursuant to Section 2(1), Article IX-B of the Constitution, which states: Section 2. (1). The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. It is already explicitly provided in Section 45 of the DILG Act of 1990 that the decision of the Regional Director imposing upon a PNP

member the administrative penalty of demotion or dismissal from the service is appealable to the RAB. From the RAB Decision, the aggrieved party may then appeal to the DILG Secretary. Section 91 of the DILG Act of 1990 provides: SEC. 91. Application of Civil Service Laws. – The Civil Service Law and its implementing rules and regulations shall apply to all personnel of the Department [DILG]. Consequently, case law on administrative disciplinary proceedings under the Civil Service Law also applies to administrative disciplinary proceedings against PNP members. The Civil Service Law referred to in Section 91 of the DILG Act of 1990 is Subtitle A, Title I, Book V of the Administrative Code of 1987 (E.O. No. 292). Section 47 of Chapter 6 thereof provides, inter alia, that in cases where the decision rendered by a bureau or office (i.e., RAB of the PNP) is appealable to the Commission, the same may initially be appealed to the department (i.e., DILG)and finally to the Commission (i.e., CSC). (Cabada v. Alunan III, 329 Phil. 669 [1996])

PUBLIC OFFICE Khan v. Ombudsman SECOND DIVISION G.R. No. 125296 July 20, 2006 DECISION CORONA, J.: This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of whether public respondents Deputy Ombudsman (Visayas) and the Ombudsman have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA) 30191 (the Anti-Graft and Corrupt Practices Act). In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders. Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019. In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners' omnibus motion to dismiss. On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the Government Service Insurance System (GSIS).4 Therefore, it became a governmentowned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan.5 On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government." The dispositive portion of the Deputy Ombudsman's order read: WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO DISMISS, the same is hereby DENIED and

petitioners are hereby ordered to submit their answer within ten (10) days from receipt hereof.6 xxx xxx xxx Petitioners appealed the order to the Ombudsman. There, they raised the same issues. Treating the appeal as a motion for reconsideration, the Ombudsman dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC, hence, he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's ruling that Quimpo was applicable to petitioners' case. In this petition for certiorari, with prayer for issuance of a temporary restraining order, petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against them although they were officers of a private corporation and not "public officers."8 In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; (2) Quimpo does not apply to the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law. We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation of RA 3019. JURISDICTION OF THE OMBUDSMAN OVER GOCCS IS CONFINED ONLY TO THOSE WITH ORIGINAL CHARTERS The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2) provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or

impropriety in the performance of duties. (italics supplied) xxx xxx xxx Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners. Quimpo Not Applicable to the Case at Bar Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan had jurisdiction over them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC) acquired its shares. In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here. In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on oil."11 The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that the government acquired the

controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS. No governmental functions at all were involved. Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article XIII, Section 6: SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as the Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. (italics supplied) The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer only to those with original charters.12 Petitioners, as then Officers of PAL, were not Public Officers Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied definitions and concepts are found in different statutes13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the term "public officers": A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. xxx xxx xxx

Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; − that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 (italics supplied) From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign executive, legislative or judicial functions.17 The explication of the term is also consistent with the Court's pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to carry out governmental functions. In any event, PAL has since reverted to private ownership and we find it pointless to scrutinize the implications of a legal issue that technically no longer exists. WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE and ANNULLED. SO ORDERED. Puno, Sandoval-Gutierrez, Azcuna, Garcia, J.J., concur. Footnotes * In a resolution dated March 24, 1999, the Court dismissed the petition against Rosauro Torralba who died in December 1997. The resolution became final and executory on June 10, 1999. Entry of judgment was accordingly made on the same day.

** Respondent died on April 23, 1999 per certified true copy of his death certificate furnished by his counsel. Rollo, p. 220. 1 Approved on August 17, 1960. 2 Rollo, pp. 20-24. 3 Hon. Juan M. Hagad. 4 GSIS converted PAL's outstanding loans into equity shares. 5 230 Phil. 232 (1986). In this case, the Philippine National Oil Corporation (PNOC) acquired PETROPHIL, a private corporation. Here, the Court declared that PETROPHIL shed off its private status and became a subsidiary of PNOC. Its officers, who were then accused of violating the Anti-Graft and Corrupt Practices Act (RA 3019), were considered "public officers" under the jurisdiction of the Tanodbayan (now Ombudsman). 6 Supra at note 1. 7 Rollo, pp. 25-29. Issued by Marilou Ancheta-Mejica, Graft Investigation Officer I, as approved by then Ombudsman Aniano A. Desierto. 8 Id., p. 5. 9 343 Phil. 307 (1997). 10 Supra at note 5. 11 Id. 12 See Juco, supra at note 9. 13 Public officials include elective and appointive officials and employees, permanent or temporary, whether in the career and non-career service, including military and police personnel whether or not they receive compensation, regardless of amount. (Section 2[b], RA 6713 [Code of Conduct and Standards for Public Officials]). Public officer is any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. (Section 1[a], RA 7080 [Act Defining and Penalizing the Crime of Plunder]). Public officers include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government x x x

(Section 2[b], RA 3019 [Anti-Graft and Corrupt Practices Act]). Any person who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in the said Government or any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. (Article 203, Revised Penal Code). 14 The term includes only persons who perform some of the functions of the Government of the Philippine Islands. (U.S. v. Smith, 39 Phil. 537 [1919]). One who has a duty to perform concerning the public; and he is not less a public officer when his duty is confined to narrow limits, because it is his duty and its nature which makes him a public officer and not the extent of his authority. (Manila Terminal Co. v. CIR, 83 Phil. 567 [1949]). 15 430 Phil. 658 (2002). 16 Id., pp. 672-673. Citing F.R. MECHEM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS, § 1. 17 Supra.

Notes:

Quimpo v. Tanodbayan EN BANC G.R. No. 72553 December 2, 1986 MELENCIO-HERRERA, J.: This Petition for certiorari address itself to the pivotal issue of whether or not PETROPHIL Corporation, a subsidiary of the Philippine National Oil Company (PNOC), is a government-owned or controlled corporation, whose employees fall under Tanodbayan jurisdiction. The former Tanodbayan, in a Decision dated March 15, 1985, in TBP Case No. 84-01422 entitled "Felicito R. Quimpo vs. Greg Dimaano and Danny F. Remo" disowned its jurisdiction, a view shared by private respondents. However, the incumbent Solicitor General, concurred in by the present Tanodbayan, and by petitioner, uphold the Tanodbayan jurisdiction. The factual antecedents are aptly summarized as follows: On July 17, 1984, petitioner filed with respondent Tanodbayan a complaint against private respondents for violation of Republic Act No. 3091 (Anti- Graft and Corrupt Practices Act) approved on August 17, 1960. Petitioner alleged that Admiral Adjusters and Surveyors, Inc. (AASI), of which he was the president, was engaged by Petrophil Corporation to render survey services for one (1) year from March 1, 1982 to February 28, 1983; that upon the expiration of the contract, it was renewed for another period of one (1) year, from March 1, 1983 to February 2, 1984; that sometime in October, 1983, private respondents Greg Dimaano and Danny Remo, as manager and analyst, respectively, of the Bulk Distribution Department and MPED of Petrophil Corporation, caused the withholding of the fees due AASI and required AASI to submit an explanation of the losses caused by leaking valves as reflected in ASSI's survey reports; that despite AASI's explanation, private respondents still refused to release the payments and even threatened to forfeit AASI's performance

bond and claim damages and losses from AASI; that despite AASI's submission of several explanations, private respondents refused to release the fees amounting to P147,300.00. Petitioner further alleged that private respondents favored Greater Marine Cargo Surveyors to enable it to win the bidding in January 1984. 1 Private respondents moved to dismiss the Complaint alleging lack of jurisdiction of the Tanodbayan, which Motion was opposed by the petitioner. On March 15, 1985, the Tanodbayan issued his questioned Decision maintaining that he had no jurisdiction over government-owned or controlled corporations created under the Corporation Law. He relied on Opinion No. 62, Series of 1976 of then Secretary of Justice, Vicente Abad Santos, holding that when Section 6, Article XIII of the 1973 Constitution mentions "government-owned or controlled corporations," "the intent is only to those created by special law." Petitioner's Motion for Reconsideration of said Decision was denied by the Tanodbayan on October 7, 1985, hence, this Petition for Certiorari, to which we gave due course. Sections 5 and 6, Article XIII of the 1975 Constitution, on the Sandiganbayan and Tanodbayan, adopted in the so-called Freedom Constitution, provide: SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil case involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law. SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal civil or

administrative case before the proper court or body. (emphasis supplied). Sections 10(a) and (f) of Presidential Decree No. 1630 also enumerate the powers of the Tanodbayan thus: SEC. 10. Powers. — The Tanod bayan shall have the following powers: (a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative act whether amounting to any criminal offense or not of any administrative agency including any government owned or controlled corporation; xxx xxx xxx (f) He may file and prosecute civil and administrative cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in govemment-owned or controlled corporations, in relation to their office; (Emphasis supplied). So does the definition of "Government" in Section 2(a) of the AntiGraft and Corrupt Practices Act include government corporations: Sec. 2. Definition of terms. — (a) 'Government' includes the national government, the local governments, the govemment-owned and controlled corporations, and an other instrumentalities or agencies of the Republic of the Philippines and their branches. (Emphasis supplied) Evident is the intent to include employees of government-owned or controlled corporations within the jurisdiction of the Tanodbayan and the Sandiganbayan. Is PETROPHIL a government-owned or controlled corporation whose employees fall within the jurisdictional purview of the Tanodbayan for purposes of the Anti-Graft and Corrupt Practices Act? We uphold the Tanodbayan jurisdiction. It has to be conceded that PETROPHIL was not created by special law. As the incumbent Solicitor General has pointed out, it was originally created as a private corporation under the Corporation Law with the name Standard Vacuum Oil Company (STANVAC). STANVAC was taken over by Esso Philippines, which was, in turn bought by Esso Eastern Standard. Eventually, Esso Eastern

Standard was purchased by the Philippine National Oil Corporation (PNOC), and its corporate name was changed to Petrophil Corporation. While it may be that PETROPHIL was not originally "created" as a government-owned or controlled corporation, after it was acquired by PNOC, which is a government-owned or controlled corporation, PETROPHIL became a subsidiary of PNOC and thus shed-off its private status. It is now funded and owned by the government as, in fact, it was acquired to perform functions related to government programs and policies on oil a vital commodity in the economic life of the nation. It was acquired not temporarily but as a permanent adjunct to perform essential government or government-related functions, as the marketing arm of PNOC to assist the latter in selling and distributing oil and petroleum products to assure and maintain an adequate and stable domestic supply. lt should make no substantial difference that it was not originally "created" as a government-owned or controlled corporation. What is decisive is that it has since been acquired by the Government to perform functions related to government programs and policies on oil. Opinion No. 62, Series of 1976 of the then Secretary of Justice must be deemed superseded by the doctrine laid down by this Court en banc, in the case of National Housing vs. Juco, 2 in pari materia to the case at bar, which held that for purposes of coverage in the Civil Service, employees of government-owned or controlled corporation whether created by special law or formed as subsidiaries are covered by the Civil Service Law, not the Labor Code, and the fact that private corporations owned or controlled by the government may be created by special charter does not mean that such corporation not created by special law are not covered by the Civil Service. The meaning thus given to "government-owned or controlled corporations" for purposes of the civil service provision should likewise apply for purposes of the Tanodbayan and Sandiganbayan provisions, otherwise, incongruity would result, and a governmentowned corporation could create as many subsidiary corporations under the Corporation Code as it wishes, which would then be free from strict accountability and could escape the liabilities and responsibilities provided for by law. This device was liberally made

use of during the past regime to the detriment of budgetary restraints and of fiscal accountability by "private" corporations thus created. As well explained in the National Housing case: The infirmity of the respondents' position lies in its permitting a circumvention or emasculation of Section I, Article XII-B of the Constitution. It would be possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation Code funded by a willing legislature. A government-owned corporation could create several subsidiary corporations. These subsidiary corporations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their income would not be subject to the competitive restraints of the open market not to the terms and conditions of civil service employment. Conceivably, all government-owned or controlled corporations could be created, no longer by special charters, but through incorporation under the general law. The constitutional amendment including such corporations in the embrace of the civil service would cease to have application Certainly, such a situation cannot be allowed to exist. (NHC vs. NLRC, p. 8) It is true that the National Housing case held that the Decision therein "refers to a corporation created as a government-owned or controlled entity and does not cover cases involving private firms taken over by the government in foreclosure or similar proceedings" judgment on which is reserved "until the appropriate controversy is brought to the Court." In the case of PETROPHIL, however, it is clear that it was acquired by purchase precisely, as explained above, to assist a government-owned or controlled corporation, the PNOC, in the performance of its government-related functions. the acquisition was not simply to recover the government's financial exposure as in "foreclosure or similar proceedings." Private respondents allege, however, that PETROPHII, is possessed of unique characteristics that endow it with all the vestiges of a

private corporation, such as (1) its employees are not members of the Government Service Insurance System but of the Social Security System, which covers private corporations; (2) they are covered by the Labor Code and other labor laws and not by civil service rules; (3) PETROPHIL was never created pursuant to the express provisions of the PNOC charter; and (4) it is engaged in the highly competitive business of petroleum distribution/retail and its operation is profitoriented. Assuming these to be so, they are internal matters not determinative of its real corporate classification. Besides, its exclusion from GSIS coverage is not by virtue of its private character but by operation of law pursuant to Section 15 of P.D. No. 405, amending the PNOC charter, specifically providing that, "PNOC subsidiaries organized to undertake purely business ventures shall not, as a matter of right, be subject to the provisions of the Government Service Insurance System, as provided for under R.A. No. 186, as amended, as well as to any law, executive orders and decrees relating to leave of absences, retirement privileges, regular working hours, and other government employee benefits." And even granting that it is profit-oriented, the fact remains that it was acquired with capital belonging to the Government and Govern ment money is utilized in its operations. In other words, there can be no gainsaying that as of the date of its acquisition by the Government utilizing public funds, PETROPHIL, while retaining its own corporate existence, became a governmentowned or controlled corporation within the Constitutional precept. Its employees, therefore, are public servants falling within the investigatory and prosecutory jurisdiction of the Tanodbayan for purposes of the Anti-Graft & Corrupt Practices Act. Otherwise, a major policy of Government, which is to eradicate, or at the very least minimize, the graft and corruption that has permeated the fabric of the public service, like a malignant social cancer, would be seriously undermined. In fact, section 1 of the Anti-Graft and Corrupt Practices Act seeks to repress not only certain acts of public officers but also of "private persons alike, which constitute graft or corrupt practices or which may lead thereto, WHEREFORE, judgment is hereby rendered setting aside the Tanodbayan Decision, dated March 15, 1985, and its Order of October 7, 1985, and requiring the incumbent Tanodbayan to investigate and act on petitioner's complaint against private respondents Greg Dimaano and Danny Remo. No costs.

SO ORDERED. Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay, Gutierrez, Jr., Cruz, Paras and Feliciano, JJ., concur. Footnotes 1 pp. 1-2, Comment of Solicitor General. 2 134 SCRA 172 [1985].

Notes:

Eugenio v. CSC EN BANC G.R. No. 115863 March 31, 1995 PUNO, J.: The power of the Civil Service Commission to abolish the Career Executive Service Board is challenged in this petition for certiorari and prohibition. First the facts. Petitioner is the Deputy Director of the Philippine Nuclear Research Institute. She applied for a Career Executive Service (CES) Eligibility and a CESO rank on August 2, 1993, she was given a CES eligibility. On September 15, 1993, she was recommended to the President for a CESO rank by the Career Executive Service Board. 1 All was not to turn well for petitioner. On October 1, 1993, respondent Civil Service Commission2 passed Resolution No. 93-4359, viz: RESOLUTION NO. 93-4359 WHEREAS, Section 1(1) of Article IX-B provides that Civil Service shall be administered by the Civil Service Commission, . . .; WHEREAS, Section 3, Article IX-B of the 1987 Philippine Constitution provides that "The Civil Service Commission, as the central personnel agency of the government, is mandated to establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progresiveness and courtesy in the civil service, . . ."; WHEREAS, Section 12 (1), Title I, Subtitle A, Book V of the Administrative Code of 1987 grants the Commission the power, among others, to administer and enforce the constitutional and statutory provisions on the merit system for all levels and ranks in the Civil Service; WHEREAS, Section 7, Title I, Subtitle A, Book V of the Administrative Code of 1987 Provides, among others, that The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by

competitive examination, or based highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure; WHEREAS, Section 8 (c), Title I, Subtitle A, Book V of the administrative Code of 1987 provides that "The third level shall cover Positions in the Career Executive Service"; WHEREAS, the Commission recognizes the imperative need to consolidate, integrate and unify the administration of all levels of positions in the career service. WHEREAS, the provisions of Section 17, Title I, Subtitle A. Book V of the Administrative Code of 1987 confers on the Commission the power and authority to effect changes in its organization as the need arises. WHEREAS, Section 5, Article IX-A of the Constitution provides that the Civil Service Commission shall enjoy fiscal autonomy and the necessary implications thereof; NOW THEREFORE, foregoing premises considered, the Civil Service Commission hereby resolves to streamline reorganize and effect changes in its organizational structure. Pursuant thereto, the Career Executive Service Board, shall now be known as the Office for Career Executive Service of the Civil Service Commission. Accordingly, the existing personnel, budget, properties and equipment of the Career Executive Service Board shall now form part of the Office for Career Executive Service. The above resolution became an impediment. to the appointment of petitioner as Civil Service Officer, Rank IV. In a letter to petitioner, dated June 7, 1994, the Honorable Antonio T. Carpio, Chief Presidential legal Counsel, stated: xxx xxx xxx On 1 October 1993 the Civil Service Commission issued CSC Resolution No. 93-4359 which abolished the Career Executive Service Board.

Several legal issues have arisen as a result of the issuance of CSC Resolution No. 93-4359, including whether the Civil Service Commission has authority to abolish the Career Executive Service Board. Because these issues remain unresolved, the Office of the President has refrained from considering appointments of career service eligibles to career executive ranks. xxx xxx xxx You may, however, bring a case before the appropriate court to settle the legal issues arising from issuance by the Civil Service Commission of CSC Resolution No. 93-4359, for guidance of all concerned. Thank You. Finding herself bereft of further administrative relief as the Career Executive Service Board which recommended her CESO Rank IV has been abolished, petitioner filed the petition at bench to annul, among others, resolution No. 93-4359. The petition is anchored on the following arguments: A. IN VIOLATION OF THE CONSTITUTION, RESPONDENT COMMISSION USURPED THE LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ABOLISHED THE CESB, AN OFFICE CREATED BY LAW, THROUGH THE ISSUANCE OF CSC: RESOLUTION NO. 93-4359; B. ALSO IN VIOLATION OF THE CONSTITUTION, RESPONDENT CSC USURPED THE LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ILLEGALLY AUTHORIZED THE TRANSFER OF PUBLIC MONEY, THROUGH THE ISSUANCE OF CSC RESOLUTION NO. 93-4359. Required to file its Comment, the Solicitor General agreed with the contentions of petitioner. Respondent Commission, however, chose to defend its ground. It posited the following position: ARGUMENTS FOR PUBLIC RESPONDENT-CSC

I. THE INSTANT PETITION STATES NO CAUSE OF ACTION AGAINST THE PUBLIC RESPONDENT-CSC. II. THE RECOMMENDATION SUBMITTED TO THE PRESIDENT FOR APPOINTMENT TO A CESO RANK OF PETITIONER EUGENIO WAS A VALID ACT OF THE CAREER EXECUTIVE SERVICE BOARD OF THE CIVIL SERVICE COMMISSION AND IT DOES NOT HAVE ANY DEFECT. III. THE OFFICE OF THE PRESIDENT IS ESTOPPED FROM QUESTIONING THE VALIDITY OF THE RECOMMENDATION OF THE CESB IN FAVOR OF PETITIONER EUGENIO SINCE THE PRESIDENT HAS PREVIOUSLY APPOINTED TO CESO RANK FOUR (4) OFFICIALS SIMILARLY SITUATED AS SAID PETITIONER. FURTHERMORE, LACK OF MEMBERS TO CONSTITUTE A QUORUM. ASSUMING THERE WAS NO QUORUM, IS NOT THE FAULT OF PUBLIC RESPONDENT CIVIL SERVICE COMMISSION BUT OF THE PRESIDENT WHO HAS THE POWER TO APPOINT THE OTHER MEMBERS OF THE CESB. IV. THE INTEGRATION OF THE CESB INTO THE COMMISSION IS AUTHORIZED BY LAW (Sec. 12 (1), Title I, Subtitle A, Book V of the Administrative Code of the 1987). THIS PARTICULAR ISSUE HAD ALREADY BEEN SETTLED WHEN THE HONORABLE COURT DISMISSED THE PETITION FILED BY THE HONORABLE MEMBERS OF THE HOUSE OF REPRESENTATIVES, NAMELY: SIMEON A. DATUMANONG, FELICIANO R. BELMONTE, JR., RENATO V. DIAZ, AND MANUEL M. GARCIA IN G.R. NO. 114380. THE AFOREMENTIONED PETITIONERS ALSO QUESTIONED THE INTEGRATION OF THE CESB WITH THE COMMISSION. We find merit in the petition.3 The controlling fact is that the Career Executive Service Board (CESB) was created in the Presidential Decree (P.D.) No. 1 on

September 1, 19744 which adopted the Integrated Plan. Article IV, Chapter I, Part of the III of the said Plan provides: Article IV — Career Executive Service 1. A Career Executive Service is created to form a continuing pool of well-selected and development oriented career administrators who shall provide competent and faithful service. 2. A Career Executive Service hereinafter referred to in this Chapter as the Board, is created to serve as the governing body of the Career Executive Service. The Board shall consist of the Chairman of the Civil Service Commission as presiding officer, the Executive Secretary and the Commissioner of the Budget as ex-officio members and two other members from the private sector and/or the academic community who are familiar with the principles and methods of personnel administration. xxx xxx xxx 5. The Board shall promulgate rules, standards and procedures on the selection, classification, compensation and career development of members of the Career Executive Service. The Board shall set up the organization and operation of the service. (Emphasis supplied) It cannot be disputed, therefore, that as the CESB was created by law, it can only be abolished by the legislature. This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative function. As aptly summed up in AM JUR 2d on Public Officers and Employees, 5 viz: Except for such offices as are created by the Constitution, the creation of public offices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by constitutional provisions, it supreme, and the legislature may decide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government it is necessary to create and define duties, the legislative department has the discretion to determine whether additional offices

shall be created, or whether these duties shall be attached to and become ex-officio duties of existing offices. An office created by the legislature is wholly within the power of that body, and it may prescribe the mode of filling the office and the powers and duties of the incumbent, and if it sees fit, abolish the office. In the petition at bench, the legislature has not enacted any law authorizing the abolition of the CESB. On the contrary, in all the General Appropriations Acts from 1975 to 1993, the legislature has set aside funds for the operation of CESB. Respondent Commission, however, invokes Section 17, Chapter 3, Subtitle A. Title I, Book V of the Administrative Code of 1987 as the source of its power to abolish the CESB. Section 17 provides: Sec. 17. Organizational Structure. — Each office of the Commission shall be headed by a Director with at least one Assistant Director, and may have such divisions as are necessary independent constitutional body, the Commission may effect changes in the organization as the need arises. But as well pointed out by petitioner and the Solicitor General, Section 17 must be read together with Section 16 of the said Code which enumerates the offices under the respondent Commission, viz: Sec. 16. Offices in the Commission. — The Commission shall have the following offices: (1) The Office of the Executive Director headed by an Executive Director, with a Deputy Executive Director shall implement policies, standards, rules and regulations promulgated by the Commission; coordinate the programs of the offices of the Commission and render periodic reports on their operations, and perform such other functions as may be assigned by the Commission. (2) The Merit System Protection Board composed of a Chairman and two (2) members shall have the following functions: xxx xxx xxx (3) The Office of Legal Affairs shall provide the Chairman with legal advice and assistance; render counselling services; undertake legal studies and

researches; prepare opinions and ruling in the interpretation and application of the Civil Service law, rules and regulations; prosecute violations of such law, rules and regulations; and represent the Commission before any court or tribunal. (4) The Office of Planning and Management shall formulate development plans, programs and projects; undertake research and studies on the different aspects of public personnel management; administer management improvement programs; and provide fiscal and budgetary services. (5) The Central Administrative Office shall provide the Commission with personnel, financial, logistics and other basic support services. (6) The Office of Central Personnel Records shall formulate and implement policies, standards, rules and regulations pertaining to personnel records maintenance, security, control and disposal; provide storage and extension services; and provide and maintain library services. (7) The Office of Position Classification and Compensation shall formulate and implement policies, standards, rules and regulations relative to the administration of position classification and compensation. (8) The Office of Recruitment, Examination and Placement shall provide leadership and assistance in developing and implementing the overall Commission programs relating to recruitment, execution and placement, and formulate policies, standards, rules and regulations for the proper implementation of the Commission's examination and placement programs. (9) The Office of Career Systems and Standards shall provide leadership and assistance in the formulation and evaluation of personnel systems and standards relative to performance appraisal, merit promotion, and employee incentive benefit and awards.

(10) The Office of Human Resource Development shall provide leadership and assistance in the development and retention of qualified and efficient work force in the Civil Service; formulate standards for training and staff development; administer service-wide scholarship programs; develop training literature and materials; coordinate and integrate all training activities and evaluate training programs. (11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for the effective conduct or inspection and audit personnel and personnel management programs and the exercise of delegated authority; provide technical and advisory services to Civil Service Regional Offices and government agencies in the implementation of their personnel programs and evaluation systems. (12) The Office of Personnel Relations shall provide leadership and assistance in the development and implementation of policies, standards, rules and regulations in the accreditation of employee associations or organizations and in the adjustment and settlement of employee grievances and management of employee disputes. (13) The Office of Corporate Affairs shall formulate and implement policies, standards, rules and regulations governing corporate officials and employees in the areas of recruitment, examination, placement, career development, merit and awards systems, position classification and compensation, performing appraisal, employee welfare and benefit, discipline and other aspects of personnel management on the basis of comparable industry practices. (14) The Office of Retirement Administration shall be responsible for the enforcement of the constitutional and statutory provisions, relative to retirement and the regulation for the effective implementation of the retirement of government officials and employees.

(15) The Regional and Field Offices. — The Commission shall have not less than thirteen (13) Regional offices each to be headed by a Director, and such field offices as may be needed, each to be headed by an official with at least the rank of an Assistant Director. As read together, the inescapable conclusion is that respondent Commission's power to reorganize is limited to offices under its control as enumerated in Section 16, supra. From its inception, the CESB was intended to be an autonomous entity, albeit administratively attached to respondent Commission. As conceptualized by the Reorganization Committee "the CESB shall be autonomous. It is expected to view the problem of building up executive manpower in the government with a broad and positive outlook." 6 The essential autonomous character of the CESB is not negated by its attachment to respondent Commission. By said attachment, CESB was not made to fall within the control of respondent Commission. Under the Administrative Code of 1987, the purpose of attaching one functionally inter-related government agency to another is to attain "policy and program coordination." This is clearly etched out in Section 38(3), Chapter 7, Book IV of the aforecited Code, to wit: (3) Attachment. — (a) This refers to the lateral relationship between the department or its equivalent and attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall

serve as the framework for the internal policies of the attached corporation or agency. Respondent Commission also relies on the case of Datumanong, et al., vs. Civil Service Commission, G. R. No. 114380 where the petition assailing the abolition of the CESB was dismissed for lack of cause of action. Suffice to state that the reliance is misplaced considering that the cited case was dismissed for lack of standing of the petitioner, hence, the lack of cause of action. IN VIEW WHEREOF, the petition is granted and Resolution No. 934359 of the respondent Commission is hereby annulled and set aside. No costs. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan and Mendoza, JJ., concur. Footnotes 1 Together with twenty-six (26) others. 2 Patricia A. Sto. Tomas (Chairman), Ramon P. Ereneta, Jr., (member) and Thelma P. Gaminde (member). 3 On February 13, 1995, respondent CSC manifested that the President appointed petitioner to CESO rank on January 9, 1995. Her appointment, however, has not rendered moot the broader issue of whether or not the abolition of Career Executive Service Board is valid. 4 P. D. No. 1 was later amended by P.D. No. 336 and P.D. No. 367 on the composition of the CESB; P.D. No. 807 and E.O. No. 292 (Administrative Code of 1987) reiterated the functions of the CESB. The General Appropriations Acts from 1975 to 1993 also uniformly appropriated funds for the CESB. 5 63 AM JUR 2d section 30. 6 Reorganization Panel Reports, Vol. II, pp. 16 to 49 as cited in Petition, p. 17.

Notes:

Buklod Ng Kawaning EIIB vs. Zamora EN BANC G.R. Nos. 142801-802 July 10, 2001 SANDOVAL-GUTIERREZ, J.: In this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning EIIB, Cesar Posada, Remedios Princesa, Benjamin Kho, Benigno Manga and Lulu Mendoza, for themselves and in behalf of others with whom they share a common or general interest, seek the nullification of Executive Order No. 1911 and Executive Order No. 2232 on the ground that they were issued by the Office of the President with grave abuse of discretion and in violation of their constitutional right to security of tenure. The facts are undisputed: On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No. 1273 establishing the Economic Intelligence and Investigation Bureau (EIIB) as part of the structural organization of the Ministry of Finance.4 The EIIB was designated to perform the following functions: "(a) Receive, gather and evaluate intelligence reports and information and evidence on the nature, modes and extent of illegal activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, and dollar-salting, investigate the same and aid in the prosecution of cases; (b) Coordinate with external agencies in monitoring the financial and economic activities of persons or entities, whether domestic or foreign, which may adversely affect national financial interest with the goal of regulating, controlling or preventing said activities; (c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the general framework and guidelines in the conduct of intelligence and investigating works; (d) Supervise, monitor and coordinate all the intelligence and investigation operations of the operating Bureaus and Offices under the Ministry; (e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption cases against personnel of the Ministry and its constituents units;

(f) Perform such other appropriate functions as may be assigned by the Minister or his deputies."5 In a desire to achieve harmony of efforts and to prevent possible conflicts among agencies in the course of their anti-smuggling operations, President Aquino issued Memorandum Order No. 225 on March 17, 1989, providing, among others, that the EIIB "shall be the agency of primary responsibility for anti-smuggling operations in all land areas and inland waters and waterways outside the areas of sole jurisdiction of the Bureau of Customs."6 Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order No. 191 entitled "Deactivation of the Economic Intelligence and Investigation Bureau."7 Motivated by the fact that "the designated functions of the EIIB are also being performed by the other existing agencies of the government" and that "there is a need to constantly monitor the overlapping of functions" among these agencies, former President Estrada ordered the deactivation of EIIB and the transfer of its functions to the Bureau of Customs and the National Bureau of Investigation. Meanwhile, President Estrada issued Executive Order No. 1968 creating the Presidential Anti-Smuggling Task Force "Aduana."9 Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada issued Executive Order No. 22310 providing that all EIIB personnel occupying positions specified therein shall be deemed separated from the service effective April 30, 2000, pursuant to a bona fide reorganization resulting to abolition, redundancy, merger, division, or consolidation of positions.11 Agonizing over the loss of their employment, petitioners now come before this Court invoking our power of judicial review of Executive Order Nos. 191 and 223. They anchor their petition on the following arguments: "A Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for being violative of Section 2(3), Article IX-B of the Philippine Constitution and/or for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. B. The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are considered to

effect a reorganization of the EIIB, such reorganization was made in bad faith. C. The President has no authority to abolish the EIIB." Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a violation of their right to security of tenure; (b) tainted with bad faith as they were not actually intended to make the bureaucracy more efficient but to give way to Task Force "Aduana," the functions of which are essentially and substantially the same as that of EIIB; and (c) a usurpation of the power of Congress to decide whether or not to abolish the EIIB. Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President enjoys the totality of the executive power provided under Sections 1 and 7, Article VII of the Constitution, thus, he has the authority to issue Executive Order Nos. 191 and 223; (b) the said executive orders were issued in the interest of national economy, to avoid duplicity of work and to streamline the functions of the bureaucracy; and (c) the EIIB was not "abolished," it was only "deactivated." The petition is bereft of merit. Despite the presence of some procedural flaws in the instant petition, such as, petitioners' disregard of the hierarchy of courts and the nonexhaustion of administrative remedies, we deem it necessary to address the issues. It is in the interest of the State that questions relating to the status and existence of a public office be settled without delay. We are not without precedent. In Dario v. Mison,12 we liberally decreed: "The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue, for two reasons, `[b]ecause of the demands of public interest, including the need for stability in the public service,' and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants." At first glance, it seems that the resolution of this case hinges on the question - Does the "deactivation" of EIIB constitute "abolition" of an office? However, after coming to terms with the prevailing law and jurisprudence, we are certain that the ultimate queries should be – a)

Does the President have the authority to reorganize the executive department? and, b) How should the reorganization be carried out? Surely, there exists a distinction between the words "deactivate" and "abolish." To "deactivate" means to render inactive or ineffective or to break up by discharging or reassigning personnel,13 while to "abolish" means to do away with, to annul, abrogate or destroy completely.14 In essence, abolition denotes an intention to do away with the office wholly and permanently.15 Thus, while in abolition, the office ceases to exist, the same is not true in deactivation where the office continues to exist, albeit remaining dormant or inoperative. Be that as it may, deactivation and abolition are both reorganization measures. The Solicitor General only invokes the above distinctions on the mistaken assumption that the President has no power to abolish an office. The general rule has always been that the power to abolish a public office is lodged with the legislature.16 This proceeds from the legal precept that the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, or by authority of law.17 Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence.18 The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President's power of control may justify him to inactivate the functions of a particular office,19 or certain laws may grant him the broad authority to carry out reorganization measures.20 The case in point is Larin v. Executive Secretary.21 In this case, it was argued that there is no law which empowers the President to reorganize the BIR. In decreeing otherwise, this Court sustained the following legal basis, thus: "Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132 or to reorganize the BIR. We do not agree. xxx xxx Section 48 of R.A. 7645 provides that: 'Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. – The heads of departments, bureaus and offices and agencies are hereby directed to identify their respective activities which are no longer essential in the delivery of public services

and which may be scaled down, phased out or abolished, subject to civil service rules and regulations. X x x. Actual scaling down, phasing out or abolition of the activities shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President.' Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of offices only and does not cover the creation of offices or transfer of functions. Nevertheless, the act of creating and decentralizing is included in the subsequent provision of Section 62 which provides that: 'Sec. 62. Unauthorized organizational charges. - Unless otherwise created by law or directed by the President of the Philippines, no organizational unit or changes in key positions in any department or agency shall be authorized in their respective organization structures and be funded from appropriations by this Act.' (italics ours) The foregoing provision evidently shows that the President is authorized to effect organizational changes including the creation of offices in the department or agency concerned. xxx xxx Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states: 'Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by the President in accordance with law.' (italic ours) This provision speaks of such other powers vested in the President under the law. What law then gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant the President of the Philippines the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize

salaries and materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or revoked. So far, there is yet no law amending or repealing said decrees." (Emphasis supplied) Now, let us take a look at the assailed executive order. In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A. 7645 quoted in Larin, thus; "Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the Philippines, no changes in key positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funded from appropriations provided by this Act." We adhere to the precedent or ruling in Larin that this provision recognizes the authority of the President to effect organizational changes in the department or agency under the executive structure. Such a ruling further finds support in Section 78 of Republic Act No. 8760.22 Under this law, the heads of departments, bureaus, offices and agencies and other entities in the Executive Branch are directed (a) to conduct a comprehensive review of their respective mandates, missions, objectives, functions, programs, projects, activities and systems and procedures; (b) identify activities which are no longer essential in the delivery of public services and which may be scaled down, phased-out or abolished; and (c) adopt measures that will result in the streamlined organization and improved overall performance of their respective agencies.23 Section 78 ends up with the mandate that the actual streamlining and productivity improvement in agency organization and operation shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President.24 The law has spoken clearly. We are left only with the duty to sustain. But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not have to end here. We must not lose sight of the very source of the

power – that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre,25 we ruled that reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to the Department of Finance.26 It falls under the Office of the President. Hence, it is subject to the President's continuing authority to reorganize. It having been duly established that the President has the authority to carry out reorganization in any branch or agency of the executive department, what is then left for us to resolve is whether or not the reorganization is valid. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in good faith. Reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient.27 Pertinently, Republic Act No. 665628 provides for the circumstances which may be considered as evidence of bad faith in the removal of civil service employees made as a result of reorganization, to wit: (a) where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; (b) where an office is abolished and another performing substantially the same functions is created; (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices, and (e) where the removal violates the order of separation.29 Petitioners claim that the deactivation of EIIB was done in bad faith because four days after its deactivation, President Estrada created the Task Force Aduana. We are not convinced.

An examination of the pertinent Executive Orders30 shows that the deactivation of EIIB and the creation of Task Force Aduana were done in good faith. It was not for the purpose of removing the EIIB employees, but to achieve the ultimate purpose of E.O. No. 191, which is economy. While Task Force Aduana was created to take the place of EIIB, its creation does not entail expense to the government. Firstly, there is no employment of new personnel to man the Task Force. E.O. No. 196 provides that the technical, administrative and special staffs of EIIB are to be composed of people who are already in the public service, they being employees of other existing agencies. Their tenure with the Task Force would only be temporary, i.e., only when the agency where they belong is called upon to assist the Task Force. Since their employment with the Task force is only by way of detail or assignment, they retain their employment with the existing agencies. And should the need for them cease, they would be sent back to the agency concerned. Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the direct control and supervision of the President as base of the government's anti-smuggling campaign. Such a smaller base has the necessary powers 1) to enlist the assistance of any department, bureau, or office and to use their respective personnel, facilities and resources; and 2) "to select and recruit personnel from within the PSG and ISAFP for assignment to the Task Force." Obviously, the idea is to encourage the utilization of personnel, facilities and resources of the already existing departments, agencies, bureaus, etc., instead of maintaining an independent office with a whole set of personnel and facilities. The EIIB had proven itself burdensome for the government because it maintained separate offices in every region in the Philippines. And thirdly, it is evident from the yearly budget appropriation of the government that the creation of the Task Force Aduana was especially intended to lessen EIIB's expenses. Tracing from the yearly General Appropriations Act, it appears that the allotted amount for the EIIB's general administration, support, and operations for the year 1995, was P128,031,000;31 for 1996, P182,156,000;32 for 1998, P219,889,000;33 and, for 1999, P238,743,000.34 These amounts were far above the P50,000,00035 allocation to the Task Force Aduana for the year 2000.

While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we find the latter to have additional new powers. The Task Force Aduana, being composed of elements from the Presidential Security Group (PSG) and Intelligence Service Armed Forces of the Philippines (ISAFP),36 has the essential power to effect searches, seizures and arrests. The EIIB did not have this power. The Task Force Aduana has the power to enlist the assistance of any department, bureau, office, or instrumentality of the government, including government-owned or controlled corporations; and to use their personnel, facilities and resources. Again, the EIIB did not have this power. And, the Task Force Aduana has the additional authority to conduct investigation of cases involving ill-gotten wealth. This was not expressly granted to the EIIB.1âwphi1.nêt Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil Sevice Commission, 37 we ruled that a reorganization in good faith is one designed to trim the fat off the bureaucracy and institute economy and greater efficiency in its operation. Lastly, we hold that petitioners' right to security of tenure is not violated. Nothing is better settled in our law than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. Valid abolition of offices is neither removal nor separation of the incumbents.38 In the instructive words laid down by this Court in Dario v. Mison,39 through Justice Abraham F. Sarmiento: Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the 'abolition,' which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, otherwise not in good faith, no valid 'abolition' takes and whatever 'abolition' is done, is void ab initio. There is an invalid 'abolition' as where there is merely a change of

nomenclature of positions, or where claims of economy are belied by the existence of ample funds. Indeed, there is no such thing as an absolute right to hold office. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary.40 While we cast a commiserating look upon the plight of all the EIIB employees whose lives perhaps are now torn with uncertainties, we cannot ignore the unfortunate reality that our government is also battling the impact of a plummeting economy. Unless the government is given the chance to recuperate by instituting economy and efficiency in its system, the EIIB will not be the last agency to suffer the impact. We cannot frustrate valid measures which are designed to rebuild the executive department. WHEREFORE, the petition is hereby DENIED. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pardo, Buena, Ynares-Santiago, De Leon, Jr., JJ., concur. Panganiban and Quisumbing, JJ., in the result. Gonzaga-Reyes, J., on leave. Footnotes 1

"Deactivation of the Economic Intelligence and Investigation Bureau" 2 "Supplementing Executive Order No. 191 on the Deactivation of the Economic Intelligence and Investigation Bureau and for Other Matters" 3 "Reorganizing the Ministry of Finance" Approved on January 30, 1987. 4 "SEC. 7. Structural Organization. The Ministry, aside from the Ministry Proper comprising the Office of the Minister, the Offices of the Deputy and Assistant Ministers, the Economic Intelligence and Investigation Bureau and the Services, shall consist of the Operation Groups and their constituent units, and Regional Office." NOTE: The precursor of EIIB was the AntiSmuggling Action Center (ASAC) created by former President Marcos on February 24, 1966 through E.O. No. 11. By virtue of E.O. No. 220 (March 1, 1970), the ASAC was transferred from the

Office of the President to the Department of National Defense. On March 16, 1971, ASAC was placed under the direct control and supervision of the Secretary of Finance by E.O. No. 303. On June 11, 1978, President Marcos issued Presidential Decree No. 1458 creating the Finance Department Intelligence and Investigation Bureau. 5 Section 26 of E.O. No. 127. 6 Section 2 of Memorandum No. 225. 7 Done on January 7, 2000; "Section 1. Deactivation of the Economic Intelligence and Investigation Bureau. The Economic Intelligence and Investigation Bureau (EIIIB) under the Department of Finance is hereby deactivated." 8 Done on January 12, 2000. "Creating the Presidential Anti-Smuggling Task Force "Aduana" to Investigate and Prosecute Crimes Involving Large-Scale Smuggling and Other Frauds Upon Customs, Other Economic Crimes and Providing Measures to Expedite Seizure Proceedings." 9 "SECTION 1. Creation of Task Force.- There is hereby created a Presidential Anti-Smuggling Task Force hereinafter called "Task Force Aduana," under the control and supervision of the Office of the President principally to combat smuggling, unlawful importations and other frauds upon customs committed in large scale or by organized and syndicated groups." xxx xxx "SEC. 3. Powers and Functions. – The Task force shall have the following powers and functions: 1. To prepare and implement appropriate and effective measures to prevent and suppress largescale smuggling and other prohibited and unlawful importations; 2. To effect searches, seizures and arrests, and for the Task Force Commander to file administrative and criminal cases conformably with the provisions of the Tariff and Customs Code of the Philippines,

as amended, pertinent provisions of the Revised Penal Code, as amended and the Rules of Criminal Procedure; 3. To conduct intelligence and counter-intelligence on smuggling and other unlawful importations, including the monitoring of situations, circumstances, activities of individual, groups and entities who are involved in smuggling activities; 4. To select and recruit personnel from within the PSG and ISAFP for assignment to the Task Force with the conformity of the office or agency concerned; 5. To enlist the assistance of any department, bureau, office or agency or instrumentality of the government, including government-owned or controlled corporations to carry out its functions, including the use of their respective personnel, facilities and resources; 6. To conduct investigation of ill-gotten wealth of all persons including government officials involved in smuggling activities, in coordination with other government agencies. 7. To conduct verification with the Bureau of Customs of all documents pertaining to payment of duties and taxes of all imported articles. 8. To suppress and prevent all other economic frauds as may be directed by the President. 9. To perform such functions and carry out such activities as may be directed by the President." 10 "Supplementing Executive Order No. 191 on the Deactivation of the Economic Intelligence and Investigation Bureau and for Other Matters." 11 Section 3 of E.O. No. 223. 12 176 SCRA 84 (1989) 13 Webster's Third New International Dictionary, 1986 ed. p. 579. 14 Moreno, Philippine Law Dictionary, 3rd ed., p. 5 15 Rivera, Law of Public Administration, First Edition, p. 634; Guerrero v. Arizabal, 186 SCRA 108 (1990)

16

In Eugenio v. Civil Service Commission, 243 SCRA 196 (1995), the Court ruled: "Except for such offices as are created by the Constitution, the creation of a public offices is primarily a legislative function. In so far as the legislative power in this respect is not restricted by constitutional provisions, it is supreme, and the legislature may decide for itself what offices are suitable, necessary, or convenient. When in the exigencies of government it is necessary to create and define duties, the legislative department has the discretion to determine whether additional offices shall be created, or whether these duties shall be attached to and become ex-officio duties of existing offices. An office created by the legislature is wholly within the power of that body, and it may prescribe the mode of filling the office and the powers and duties of the incumbent, and, if it sees fit, abolish the office." Mendoza v. Quisumbing 186 SCRA 108 (1990); Cruz v. Primicias, 23 SCRA 998 (1968) De Leon, Administrative Law: Text and Cases, 1998 Ed., p. 24 17 Cruz, The Law of Public Officers, 1999 Ed., p. 4. 18 Ibid., p. 199 19 Martin, Philippine Political Law, p. 276 20 Larin v. Executive Secretary, 280 SCRA 713 (1997) 21 ibid. 22 General Appropriation Act FY 2000, signed into law on February 16, 2000. 23 Section 78 of Republic Act No. 8760. Section 16, Article XVIII, 1987 Constitution provides: "Sec. 16. Career civil service employees from the separated from the service not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits

accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivision, instrumentalities, or agencies, including government owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted." 24 Ibid. 25 323 SCRA 312 (2000). 26 Section 17, Title II, Book IV, E.O. No. 292. 27 Department of Trade and Industry v. Chairman and Commissioners of the Civil Service Commission 227 SCRA 198 (1993); Dario v. Mison, supra.; Mendoza v. Quisumbing, supra. 28 "An Act to Protect the Security of Tenure of Civil Service Officers and Employees in the Implementation of Government Reorganization"-Approved on June 10, 1988" (84 Official Gazette No. 24, p. S-1) 29 Section 2 of Republic Act No. 6656. 30 E.O. No. 196; Section 17, Chapter 4, Title II, Book IV, E.O. No. 292, and Section 7 and Section 26, E.O. No. 127. 31 R.A. No. 7845, 1995 General Appropriation Act 32 R.A. No. 8174, 1996 General Appropriation Act 33 R.A. No. 8522, 1998 General Appropriation Act 34 R.A. No. 8745, 1999 General Appropriation Act 35 Section 10, E.O. No. 196. 36 Section 2 of E.O. No. 196. 37 226 SCRA 278 (1993). 38 Mendoza v. Quisumbing, supra. De la Llana v. Alba, supra. 39 supra. 40 National Land Titles and Deeds Registration Administration v. Civil Service Commission, supra.

Notes:

Mendoza vs. Quisumbing EN BANC G.R. No. 78053 June 4, 1990 GUTIERREZ, JR., J.: The issues raised in these consolidated cases refer to the validity of various reorganization programs in different agencies and/or departments of the government implementing the orders issued pursuant to the President's Proclamation No. 1 declaring as policy the reorganization of the government and Proclamation No. 3 "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." In addition to the pleadings filed, the parties discussed the basic issues raised in these petitions during the hearings held on January 24 and 31, 1989. I In G.R. No. 78053, the petitioner questions the validity of the March 19, 1987 letter-order of the then Secretary of Education, Culture and Sports (DECS) Lourdes R. Quisumbing which terminated his employment as Schools Division Superintendent of Surigao City. Petitioner Mendoza was the Schools Division Superintendent of Surigao City who, on June 4, 1986, was reappointed by respondent Quisumbing as such with a "PERMANENT" status. He has served the Department of Education for forty-two (42) years, moving up the ranks in the public schools system. On January 30, 1987, Executive Order No. 117 was issued by the President reorganizing the DECS. In a letter dated March 19, 1987, the petitioner received the letterorder informing him that pursuant to Executive Order No. 117 which provides for a reorganization of the DECS and the implementing guidelines thereof he would be considered separated from the service effective April 15,1987 without prejudice to availment of benefits. The letter particularly stated that consistent with the mandate of reorganization to achieve greater efficiency and effectiveness, all incumbent officials/personnel are on 'holdover' status unless advised otherwise. In his place, Secretary Quisumbing appointed Dr. Socorro L. Sering, on a permanent status on March 2, 1988. In the meantime, the petitioner, in a letter dated April 2, 1987, wrote Secretary Quisumbing requesting reconsideration of the letter-order. The letter

was forwarded to the Reorganization Appeals Board (RAB). The motion for reconsideration remained unacted upon, hence on June 24, 1987, the petitioner filed the instant petition for certiorari, prohibition and mandamus with preliminary injunction. In a resolution dated September 19, 1988, the RAB recommended that action on the petitioner's letter- reconsideration be deferred pending resolution of the instant petition. In G.R. No. 78525, the petitioners are tourism employees who question the legality of Executive Order No. 120 and the consequent alleged illegal act of the public respondents in summarily terminating their services. The twenty-eight (28) petitioners were all permanent employees (with services ranging from 27 years to 3 years) of the Department of Tourism (DOT). All the petitioners had no pending administrative cases and some of them have received numerous citations for meritorious services. On January 20, 1987, the President issued Executive Order No. 120 reorganizing the Ministry of Tourism "structurally and functionally." Section 26 thereof decrees the abolition of Tourism Services and Bureau of Tourism Promotions while Section 29 provides that the incumbents whose positions are not included in the new staffing pattern or who are not reappointed shall be deemed separated from the service, but they shall receive retirement benefits and separation pay. On March 19, 1987, respondent Undersecretary Sostenes Campillo, Jr., issued a Memorandum which in effect stated that pursuant to Executive Order No. 120 the implementation of the reorganization program shall be effected starting March 19, 1987; that all positions are declared vacant; and that all employees are considered in a hold-over capacity. On April 13, 1987, respondent Campillo, Jr., in his capacity as acting secretary issued a memorandum notifying all employees of the DOT that thirty (30) days from said date, or on May 13, 1987, termination orders will be effected. On May 14 and May 28, 1987, the petitioners were served their termination papers. They now seek the issuance of a writ of mandamus to compel the public respondents to reinstate them to their respective positions and a writ of prohibition to enjoin said respondents from implementing Executive Order No. 120. They state that they are career civil servants who were summarily and unceremoniously separated from employment without due process. In G.R. No. 81197, the eighty-four (84) petitioners are personnel of the Office of the Press Secretary who question their dismissal from

the government service pursuant to what they allege is an unconstitutional reorganization law (Executive Order No. 297) and the likewise alleged unconstitutional implementing order issued by respondent, then Press Secretary Teodoro Benigno. On July 25, 1987, the President issued Executive Order No. 297 which reorganized the Office of the Press Secretary (OPS). Section 13 of the law provides for the merger of the Bureau of Broadcast and Radyo ng Bayan into the Bureau of Broadcast Services (BBS). On August 27, 1987, the then Press Secretary issued OPS Department Order No. 1 creating tile Reorganization Committee and Placement Committee to set guidelines in the implementation of the reorganization program. The Reorganization Committee was created to oversee and set the directions for the reorganization while the Placement Committee which was created in each Bureau was tasked to assist the appointing authority in the selection and placement of personnel. One of the criteria to be observed in the hiring process was the taking of oral and written examinations to be administered by OPS through the Development Academy of the Philippines (DAP) with a representative from the Civil Service Commission in attendance. It was further provided that those who will not take the examinations will automatically lose the percentage alloted to the examinations in the rating process. In the meantime, a new position structure and staffing pattern was prepared retaining only around 333 positions of the nearly 770 regular employees of BBS. The new staffing pattern was approved on October 5, 1987 and implemented on November 1, 1987. The affected employees whose positions were abolished appealed to the Press Secretary to withdraw the proposed staffing pattern and to create a committee from the BBS officials' rank to prepare a new staffing pattern. The request was denied and instead an order was issued that everybody must re-apply and undergo the oral and written examinations provided for in the OPS Department Order No. 1. The original (32) petitioners who were mostly permanent and regular civil service employees of the BBS with more than ten (10) years of government service refused to take the examinations. The then Press Secretary wrote the petitioners that their "services shall be considered only until December 31, 1987." On January 8, 1988, the thirty-two (32) petitioners filed the instant petition for certiorari, prohibition and mandamus with preliminary injunction and/or restraining order.

A supplemental petition was filed by thirty-six (36) First Intervenors and sixteen (1 6) Second Intervenors. The First Intervenors group was composed of permanent civil service employees who took the examination but were uniformly informed that "due to the limited number of positions" they were considered employees only until January 31, 1988. The Second Intervenors were temporary employees with most of them being in the government service for more than fifteen (15) years whose temporary appointments were extended only until July 31, 1987 "due to the ongoing reorganization." In G.R. No. 81495, petitioners Secretary of the Department of Science and Technology (DOST), and Director and members of the Reorganization Evaluation Committee of the Philippine Nuclear Research Institute (PNRI) ask for the annulment of the orders dated December 27, 1987 and January 15, 1988 of the Regional Trial Court, Branch 97, Quezon City which restrained the petitioners from dismissing the private respondents and from implementing the reorganization scheme of the PNRI under Executive Order No. 128 and granted the private respondent's application for a writ of preliminary injunction. The forty-one (41) private respondents were employees of the Philippine Atomic Energy Commission (PAEC). Some of them have been in the government service for more than twenty (20) years, others for more than ten (10) years and almost all of them are college graduates, holding permanent positions and are civil service eligibles. On January 30, 1987, the President issued Executive Order No. 128 reorganizing the DOST. Section 21 of the order provides for the reorganization of the PAEC into the PNRI. On April 24, 1987, the DOST Secretary issued Memorandum Circular No. 001 which created the Placement Committee. On May 5, 1987, Memorandum Circular No. 002 was issued which provided for guidelines on the evaluation and selection of officers and employees. In the meantime in April, 1987, the DOST new position structure and staffing pattern which reduced the number of positions from 6,029 to 5,568 was approved by the DOST Secretary. On September 25, 1987, the Department of Budget and Management likewise approved the new position structure and staffing pattern. On December 18, 1987, a list of employees to be retained under the new position structure of the PNRI was posted in the PNRI premises. Those excluded were placed in a manpower pool for possible

placements in other DOST agencies. Thereafter, appointments under the new staffing pattern were issued and subsequently submitted to the Civil Service Commission. On December 28, 1987, the private respondents whose positions were not included in the PNRI position structure and staffing pattern filed a complaint with the respondent trial court for "Injunction with Prayer for the Issuance of Writ of Preliminary Order" alleging that the termination of their services violated their right to security of tenure; that there is a time limit of one (1) year from February 25, 1986 to implement the reorganization (Article Ill, Section 2, Freedom Constitution); and that the Freedom Constitution has been superseded by the 1987 Constitution and is no longer operative. Acting on the complaint, the respondent court issued the questioned orders. In G.R. No. 81928, petitioner Jose L. Guerrero assails his termination as Director of the Science Promotion Institute (SPI) a regular line agency of the Department of Science and Technology (DOST) and seeks reinstatement and assignment to any position closest to his old position in terms of functions, duties, salary emoluments and privileges and without diminution of his rank, salary and privileges as of September 24, 1987. Section 35 (d) of Executive Order No. 128 provides for the abolition of SPI and in lieu thereof creates the Science Education Institute (SEI) and Science and Technology Information Institute (STII). It is also provided-therein that SPI's "appropriation fund, records, equipment, facilities, chases in action, rights, other assets, personnel as may be necessary and liabilities if any'" shall be transferred to SEI and STII. On September 24, 1987, the then Secretary designated Mr. Benjamin Damian as officer-in-charge of the newly created STII. After the new position structure and staffing pattern of DOST was approved by both the DOST Secretary and the Department of Budget and Management, the petitioner received a letter dated September 25, 1987 from the DOST Secretary which notified him that since the SPI was abolished by Executive Order No. 128, his position as Director no longer exists. The file his retirement application. In Secretary advised him to another letter dated September 30, 1987 from the Secretary, the petitioner was directed to turn over all property, equipment and funds in his custody to the Officer-in-Charge of STII. The petitioner had held the position since June, 1982.

On September 25, 19877 Damian entered the SPI and since then the petitioner has been kept out of his office and denied salaries, allowances and emoluments. On February 19, 1988, the petitioner filed the instant petition with preliminary mandatory injunction. He accuses the DOST Secretary of grave abuse of discretion in terminating his services and alleges that his termination was a violation of his right to security of tenure. He contends that the functions of the old office are Identical to the functions of the two new offices into which the old one has been split and, therefore, there is no true abolition in the legal sense. In G.R. No. 81998, the twenty-one (21) petitioners led by Rogelio Bustamante, Chief of the Legal Division of the Department of Agriculture (DAGR) filed on February 24, 1987 the instant petition for certiorari, prohibition and injunction with prayer for a restraining order and/or writ of preliminary injunction to enjoin the respondents from holding examinations for the petitioners and others similarly situated on February 26, 1988 and from proceeding with the reorganization of the Department of Agriculture. The petitioners are mostly division and section chiefs who are among the 1,500 regular and civil service officers and employees of the DAGR. Pursuant to Executive Order No. 116 issued on January 30, 1987 which provides for the reorganization of the DAGR, the then Secretary Carlos Dominguez issued Memorandum Circular dated February 10, 1988 requiring all provincial and municipal agricultural officers, as well as division chiefs to take an examination on February 26, 1988 to be given by Sycip Gorres Velayo (SGV) under the authority of respondent Civil Service Commission (CSC). The petitioners asked for a restraining order claiming that the proposed examinations were calculated and designed to have a basis for laying off career employees and officials in order to replace them with proteges of the respondent. They stated that Division Chiefs had already been ordered to work as "coordinators' or told to go on field trips while outsiders, proteges of the respondent, became OICs of the various Divisions. We did not issue any restraining order, hence the examinations were conducted on March 5, 11 and 30, 1988. On March 23, 1988, the petitioners filed a supplemental petition praying for a writ of preliminary injunction enjoining the public respondents from proceeding with the reorganization of their department and to desist from committing acts of harassment or

reprisals against the petitioners who were asked to explain in writing why they did not take the competitive examinations. In G.R. No. 86504, petitioner Rainerio Reyes, the then Secretary of the Department of Transportation and Communications (DOTC) seeks the setting aside of the resolution dated November 7, 1988 issued by the Civil Service Commission (CSC) which ordered the reappointment of respondents Matias T. Austria and Arcebido M. Gervacio to the positions of Chief of the National Telegraphic Transfer Service (NTTS) and Administrative Service Chief II of the Telecommunications Office (TELOF) respectively and declared the appointment of Aureliano de Leon as Administrative Service Chief II ineffective as wen as the CSC's resolution dated December 20, 1988 which denied the petitioner's motion for reconsideration. In a letter-complaint dated January 11, 1986 filed with the Sandiganbayan, a certain Mrs. Calixta Ondevilla, an employee of NTTS, charged Austria with violation of the Anti-Graft and Corrupt Practices Act. In another letter-complaint dated March 14,1986 filed with DOTC Minister Hernando Perez, Ondevilla charged Austria with various irregularities such as favoritism, oppression, abuse of authority and nepotism. Pursuant to the new reorganization plan of the Bureau of Telecommunications (BUTEL) the Acting Director issued various office orders relieving Austria as NTTS Chief and giving him other designations and at the same time designating Arcebido Gervacio as Acting Chief, NITS effective January 2, 1987. Aureliano de Leon who was holding the item of Administrative Officer III was designated Acting Chief, Human Resources and Administrative Department. Austria was found guilty of nepotism, grave insurbordination, grave misconduct and/or abuse of authority, neglect of duty and/or acts prejudicial to the interest of the service (falsification of documents) in a decision signed by the Assistant Secretary of the Telecommunication Office (TELOF). Petitioner DOTC Secretary, however, set aside the decision on grounds of denial of fair and impartial investigation and ordered continuation of a formal investigation upon motion for reconsideration of the Assistant Secretary of TELOF. In the meantime, pursuant to Executive Order Nos. 125 and 125-a (Executive Order No. 125 was issued by the President on January 30, 1987) the reorganization of the DOTC was undertaken. With respect to the BUTEL, now called TELOF, the highest position in the

Administrative Division was abolished and a new one was created namely Administrative Services Chief II, (Range 75). On the other hand, the item of NTTS Chief (Range 75) was retained in the staffing pattern. The TELOF Placement and Selection Committee, which included the head of the CSC Field Office considered and evaluated four candidates, including Gervacio and Austria for the top position in the Administrative Division while three candidates, also including Gervacio and Austria were considered for the position of NTTS Chief. The committee recommended De Leon and Gervacio for the top position and NTTS chief respectively. Petitioner DOTC Secretary then appointed the two (2) and their appointments were approved by the CSC through the head of the CSC Field Office. Austria was appointed Administrative Officer I of Region 1, Baguio City. Gervacio and Austria were not satisfied with their appointments and filed separate protests with the DOTC Reorganization Appeal Board (RAB) against Gervacio's appointment (opposed by Austria) as well as de Leon's appointment (opposed by Gervacio). 'The protests were dismissed. Gervacio and Austria then appealed the DOTC-RAB resolution to the CSC which reversed the said resolution. After their motions for reconsideration were denied, the DOTC Secretary filed the instant petition. On July 7, 1989, the CSC issued an order directing the DOST Secretary and the Assistant Secretary of the Telecommunications to immediately implement the CSC resolutions in view of our nonissuance of any restraining order to bar the implementation of the resolution. On September 5, 1989, we issued a temporary restraining order enjoining the CSC to cease and desist from enforcing the July 7, 1989 order. In G.R. No. 86547, petitioner Secretary Carlos Dominguez of the Department of Agriculture seeks the annulment of the orders of the Regional Trial Court, Branch 87 of Quezon City granting- (1) a series of temporary restraining orders and writs of preliminary injunction which enjoined the petitioner from carrying out the reorganization of the Department of Agriculture, and (2) several motions of the private respondents to admit additional petitioners. On January 19, 1987, the President issued Executive Order No. 116 "Renaming the Ministry of Agriculture and Food as Ministry of

Agriculture, Reorganizing its Units Integrating all Offices and Agencies whose Functions relate to Agriculture and Fishing into the Ministry and for other Purposes." Pursuant to this law, the petitioner formed a Reorganization Committee to work on the new staffing pattern of the Department which was later approved by the Department of Budget and Management. The newly approved staffing pattern was posted in every affected bureau and agency of the Department for all employees to be notified. The Department's reorganization entailed conversion of line bureaus into staff bureaus resulting in the reduction and/or abolition of positions in the Bureaus affected namely, Bureau of Fisheries and Aquatic Resources (BFAR), Bureau of Soils and Water Management (BSWM), Bureau of Plant Industry (BPI) and the Bureau of Animal Industry (BAI). Due to the aforesaid conversion, there was an increase in positions department-wide but there were significant reductions in positions of the staff bureau where most of the private respondents were employed. To evaluate the qualification of all personnel of the Department for possible appointments, a Placement Committee was formed and the petitioner issued Memorandum Circular No. 7 dated October 7, 1987 containing the guidelines to be followed in the reorganization process. All the private respondents were among those whose positions were affected by the reorganization. Thus, they were given the corresponding notices of termination. They were all permanent employees of the DAR, the Bureau of Plant Industry (BPI), Bureau of Animal Industry (BAI), Bureau of Fisheries and Aquatic Resources or Bureau of Soils and Water Management. Pending appeal to the Reorganization Appeals Board (RAB) the private respondents submitted to the petitioner a manifesto requesting deferment of the implementation of the reorganization. In view of their impending dismissal effective October 9, 1988, the first nine (9) private respondents, on October 5, 1988, filed with the respondent trial court a petition for prohibition and mandamus with prayer for a temporary restraining order. On October 7, 1988, the respondent trial court issued a temporary restraining order enjoining the petitioner from carrying out the announced dismissal of the private respondents and from appointing third persons to the positions in the new staffing pattern.

Later, the trial court ordered the inclusion of "additional petitioners" in the persons of the other private respondents (total number of private respondents is 519) the last batch of which totalled 35 whose services were to be terminated effective November 5, 1988 upon motions by the counsel of the original nine petitioners in the trial court. After the petitioners' motion for reconsideration of the respondent court's order regarding the "additional petitioners" and grant of the writ of preliminary injunction with respect to them was denied, the instant petition for certiorari and prohibition with prayer for a writ of preliminary injunction with urgent prayer for issuance of temporary restraining order was filed. In G.R. No. 88951, the Office of Muslim Affairs (OMA) seeks the review of the resolution dated January 27, 1989 of the Civil Service Commission (CSC) which ordered that the private respondents, except retirees or those who have opted to be phased out and received benefits as such, should be immediately reinstated to their positions or to positions of comparable or equivalent rank in the OMA without loss of seniority rights and with back salaries as well as the CSC's resolution dated June 2, 1 989 denying a motion for reconsideration. On January 30, 1987, the President issued Executive Order Nos. 122 as amended, and 122-A abolishing the Office of Muslim Affairs and Cultural Communities (OMACC) and the Philippine Pilgrimage Authority (PHILPA) and creating out of these offices the Office on Muslim Affairs (OMA) and the Bureau of Pilgrimage and Endowment (BPE). Later, on July 25, 1987, the President issued Executive Order No. 295 amending Executive Order No. 122. On June 1, 1987, petitioner Executive Director Jiamil Dianalan issued Office Order No. OG-87-21 creating the OMA Personnel Screening Committee to review, evaluate and recommend employees based on performance and merit. On August 24, 1987, Dianalan issued a memorandum to all officials and employees of OMA to inform them that under Executive Order No. 117, the President authorized extensions of sixty (60) days from the expiration of the earlier extension period within which incumbent employees of defendant OMACC may continue to hold office and receive their salaries in holdover capacities or until September 24, 1987 and that those not reappointed are ordered to desist from further holding office.

On September 24, 1987, Acting Assistant Executive Director Atty. Panumbalin M. Membin, OMA issued a memorandum advising all those not reappointed to desist from reporting to office. On October 2, 1987, the President issued "GUIDELINES ON THE IMPLEMENTATION OF REORGANIZATION EXECUTIVE ORDERS" requiring each agency to constitute a Reorganization Appeals Board (OMA-RAB) to hear complaints of affected employees. On October 10, 1987, the petitioner issued Office Order No. 09-87100 creating the OMA Reorganization Appeals Board (OMA-RAB) which was reconstituted on February 24,1988. On November 3, 1987, the petitioner issued Office Order No. 87-021 providing for a procedure for reviewing or reconsidering appeals or complaints. On April 27, 1988, the OMA-RAB issued a resolution adopting Executive Orders Nos. 122 and 122-A as amended and the documents related to the reorganization of OMA as basis in deciding appeals or complaints. On July 12, 1988, the OMA-RAB resolved to dismiss the appeal of the 206 private respondents stating that the non-appointment of the complainants who were former employees of the defunct OMA and PPA were in accordance with law. On July 16, 1988, the private respondents filed appeals for reappointment in the OMA with the CSC, alleging that their separation from service was in violation of law and their constitutional rights to due process and equal protection of the law and security of tenure. Acting on the appeals, the CSC issued the questioned resolutions. Hence, the instant petition. In G.R. No. 89427 petitioner Conrado L. Villazor filed this petition for mandamus to compel respondent Secretary of Health Alfredo R.A. Bengzon to reinstate him as Assistant Provincial Health Officer of Zambales. On May 1, 1985, the petitioner received a permanent appointment as Assistant Provincial Health Officer, range 85 from the then Minister of Health. By virtue of Order No. 267D dated November 7, 1986 the petitioner was assigned officer-in-charge of the San Marcelino District Hospital in San Marcelino, Zambales. On February 2, 1988, the petitioner was informed through a letter from the Regional Director of Regional Health Office No. III San

Fernando, Pampanga by authority of the Secretary of Health that after "a review of all our personnel" he shall not be appointed to any position in the new staffing pattern under Executive Order No. 119 (the reorganization law of the Department of Health). On February 16,1988, the DOH dismissed a protest and Dr. Arcellie Llamado was designated as officer-in-charge, San Marcelino District Hospital. Upon appeal to the Civil Service Commission, the DOH decision was reversed. The CSC ruled in favor of the petitioner. Despite the CSC ruling and a letter of the petitioner asking for the immediate issuance of his appointment, the DOH has not issued any appointment to the petitioner. Hence, the instant petition. II After the February 1986 political upheaval, the political leadership decided to proclaim the formation of a revolutionary government headed by President Corazon C. Aquino. On February 25, 1986, immediately after the President was sworn into office, she issued Proclamation No. 1 declaring as policy the reorganization of the government. The reorganization affected all branches of the Government as appointive public officials including the members of the Supreme Court as well as elective officials were included in its purview. On March 25, 1986, the President promulgated Proclamation No. 3 "DECLARING A NATIONAL POLICY TO IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION." Proclamation No. 3 reiterated the new policy of the government as embodied in the law's Preamble, to wit: WHEREAS, the direct mandate of the people as manifested by their extraordinary action demands the complete reorganization of the government, ... The implementing guidelines were spelled out in the succeeding provisions of the law, to wit: ARTICLE II Section 1 xxx xxx xxx The President shall give priority to measures to achieve the mandate of the people to:

a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous vestiges of the previous regime. ARTICLE III Section 1. In the reorganization of the government priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption. Section 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if such is made within a period of one year from February 25,1986. Section 3. Any public officer and employee separated from the service as a result of the organization effected under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing thereunder. Section 4. The records, equipment, buildings, facilities and other properties of all government offices shall be carefully preserved. In case any office or body is abolished or reorganized pursuant to this proclamation, its funds and properties shall be transferred to the offices or body to which its powers, functions and responsibilities substantially pertain. On May 28, 1986, the President issued Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Among others, the law prescribed as "grounds for the separation/replacement of personnel" (SECTION 3) the following: 1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; 2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned;

3) Gross incompetence or inefficiency in the discharge of functions; 4) Misuse of public office for partisan political purposes; 5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service. Thereafter, the President issued Executive Orders directing the reorganization of various different departments of the government which affected their employees, among them the petitioners in some of the instant cases as well as the respondents in the other cases: In G.R. No. 78053, Executive Order No. 117 reorganizing the Department of Education, Culture and Sports issued on January 30, 1987; In G.R. No. 78525, Executive Order No. 120 reorganizing the Department of Tourism issued on January 20,1987; In G.R. No. 81197 Executive Order No. 297 reorganizing the Office of the Press Secretary issued on July 25, 1987; In G.R. No. 81495 Executive Order No. 128 reorganizing the Department of Science and Technology issued on January 30,1987; In G.R. No. 81928 Executive Order No. 128 issued on January 30, 1987; In G.R. No. 81998 Executive Order No. 116 issued on January 30, 1987; In G.R. No. 86504 Executive Order No. 125 reorganizing the Department of Transportation and Communications issued on January 30, 1987; In G.R. No. 86547 Executive Order No. 116 reorganizing the Department of Agriculture issued on January 30, 1987; In G.R. No. 88951 Executive Order No. 122 abolishing the Office of Muslim Affairs and Cultural Communities and the Philippine Pilgrimage Authority issued on January 30, 1987; and in G.R. No. 89427 Executive Order No. 119 reorganizing the Department of Health issued on January 30, 1987. As stated in Dario v. Mison, et al. (G.R. No. 81954 and related cases, August 8, 1989, p. 23) there is no dispute over the authority to carry out a valid reorganization in any branch or agency of Government. Pursuant to the Provisional Constitution and the various Executive Orders issued by the President when she was the sole law- making authority, the different Departments of Government were authorized to carry on reorganization programs. From the very start, however, the nature and extent of the power to reorganize were circumscribed by the source of the power itself. The

grant of authority was accompanied by guidelines and limitations. It was never intended that department and agency heads would be vested with untrammelled and automatic authority to dismiss the millions of government workers on the stroke of a pen and with the same sweeping power determine under their sole discretion who would be appointed or reappointed to the vacant positions. Thus, under Proclamation No. 3, Article II, Section l(a), reorganization was mandated by the People to "eradicate unjust and oppressive structures." Where the fabric was sound or the new agency head could not devise anything better, it must be retained. The mandate was also intended to remove "all iniquitous vestiges of the previous regime." Under this mandate, the mass of lowly employees in the bottom rungs of the governmental hierarchy, ordinarily constant and apolitical, were not intended to be summarily dismissed unless basic reasons outweighed or overcame the rights to their jobs built up so laboriously over the years. Article III, Section 1 of the same Proclamation added another guideline - "priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption." The promotion of simplicity, economy, and efficiency is the usual standard which enables a delegation of powers in reorganization statutes to pass the test of validity. When the President set the standard of economy, efficiency, and the eradication of graft and corruption, she did not come up with novel standards to be followed by her alter egos in the implementation of the reorganization program. We have ample jurisprudence on the matter, in Urgello, et al. v. Osmena, Jr., 9 SCRA 317 [1963], this Court made it plain that the creation of new positions with increases in salaries and with the same duties as those abolished is inconsistent with the ostensible purpose of economy and efficiency. Similar rulings were made in Abanilla, et al. v. Ticao, et al., 17 SCRA 652 [1966]; Cruz, et al. v. Primicias, Jr., et al., 23 SCRA 998 [1968]; Briones v. Osmena, Jr., 104 Phil. 588 [1958]; and Ocampo, et al. v. Duque, 16 SCRA 962 [1966]. On the other hand, the bona fide rule was followed in Arao v. Luspo, 20 SCRA 722 [1967]; Manalang v. Quitoriano, 94 Phil. 903 [1954]; Llanto v. Dimaporo, 16 SCRA 599 [1966]; Facundo v. Pabalan, 4 SCRA 375 [1962]; and Maza v. Ochave, 20 SCRA 142 [1967]. There were ample precedents to guide the respondent public officers in these cases.

No specific causes for removal were given in the Provisional Constitution. The President, therefore, felt constrained to issue particulars to guide those who would implement the policy. We had occasion to pass upon this issue and stated: Although the Provisional Constitution did not require any ground or cause for removal as above pointed out, the Government, in an act of auto-limitation and to prevent indiscriminate dismissals of personnel in the Career Civil Service whose qualifications and performance meet the standards of public service of the New Government', issued Executive Order No. 17 dated 28 May 1986 (82 Official Gazette 2423 [2 June 1986]) which enumerated certain grounds for the separation or replacement of elective and appointive officials authorized under Article III (2) of the Provisional Constitution. .... (Radia v. Review Committee Under Executive Order No. 17, et al., 157 SCRA 749, 753 [1988]). Executive Order No. 17 was issued on May 28, 1986, long before the present Constitution was ratified and adopted, 'in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the career civil service ... and to ensure that only those found corrupt, inefficient, and undeserving are separated from the government service." (82 Official Gazette 2423, June 2,1986). The President's concern embodied in Executive Order No. 17 was also shown by that other great department of Government, namely Congress. The cause of those who have been reorganized out of office has been taken up by their elected representatives. On March 1, 1988, the Senate of the Philippines passed a unanimous resolution with two abstentions expressing the Senate's concern over the plight of government officials and employees who were dismissed without just cause. Significantly, Senator Santanina Rasul, chairperson of the Senate Committee on the Civil Service, divulged that reorganization has resulted in the creation of an even bigger and fatter bureaucracy. The Senate urged the suspension of the then on- going reorganization of government offices pending remedial legislation. (Manila Bulletin, March 2, 1988, p.i.).

Earlier, the House of Representatives has also introduced a bill for the setting up of clear-cut policies and guidelines on reorganization to protect the security of tenure of civil servants. (Manila Bulletin, October 5,1987, p. 14) These efforts led to the enactment on June 10, 1988 of Republic Act No. 6656 "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION." The law reiterated the established and valid causes for removals incident to a bona- fide reorganization and itemized some circumstances constituting evidence of bad faith in a non bona - fide reorganization. Section 2 of the law provides: SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished, or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in a number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; (d) where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof. Republic Act No. 6656 states the policy of the law and provides for the retroactivity of its provisions even in reorganizations already effected. It provides: SECTION 1. It is hereby declared the policy of the State to protect the security of tenure of civil service officers and employees in the reorganization of the various agencies of the National Government and of local governments, state colleges and universities expressly authorized by law, including governmentowned or controlled corporations with original charters, without sacrificing the need to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service pursuant to Article IX, B, Section 3 of the Constitution. xxx xxx xxx SECTION 11. The executive branch of the government shall implement reorganization schemes within a specified period of time authorized by law. In the case of the 1987 reorganization of the executive branch, all departments and agencies which are authorized by executive orders promulgated by the President to reorganize shall have ninety (90) days from the approval of this Act within which to implement their respective reorganization plans in accordance with the provisions of this Act. (Emphasis supplied) Significantly, Republic Act No. 6656 also repealed all laws, rules and regulations and part thereof inconsistent with its provisions. (See Section 13) The Solicitor General, in his consolidated memorandum, argues that traditional concepts of civil service law should not apply. He states that the government overhaul is a direct exercise by the sovereign people of police power. In what he calls "progressive reorganization," separations from the service may be effected without cause because "the mandated reorganization itself is the cause."

There is no dispute over the power to reorganize-whether traditional, progressive, or whatever adjective is appended to it. However, the essence of constitutional government is adherence to basic rules. The rule of law requires that no government official should feel free to do as he pleases using only his avowedly sincere intentions and conscience to guide him. The fundamental standards of fairness embodied in the bona fide rule cannot be disregarded. More particularly, the auto-limitations imposed by the President when she proclaimed the Provisional Constitution and issued executive orders as sole law maker and the standards and restrictions prescribed by the present Constitution and the Congress established under it, must be obeyed. Absent this compliance, we cannot say that a reorganization is bona-fide. The public respondents (who are petitioners in some cases) argue that they have followed standards. However, the standard they present is derived from the typical grant of rule-making authority found in all the questioned Executive Orders, to wit: The Minister shall issue such rules, regulations, and other issuances as may be necessary to ensure the effective implementation of the provisions of this Executive Order. The alleged standard - "ensure the effective implementation of the provisions of this Executive Order"- is no standard. Under the public respondents concept, their standard is a roving commission giving the executive officer unbridled discretion to do as he pleases as long as, in his belief, his act effectively implements the executive order. As earlier mentioned, the standards are found else where in the governing charters in sufficiently clear and ample language. The grant of quasi-legislative power to implement the reorganization is bound by these standards. Unfortunately, the public officials concerned have misread the instructions and decided to implement reorganization according to their full discretion in a manifestly invalid manner. Article XVIII, Section 16 of the 1987 Constitution reads: Sec. 16. Career civil service employees separated from the service not for cause but as a result of reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to

retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. To justify the challenged reorganization measures, the Solicitor General finds in the "not for cause" separations from the service and the "reorganization following the ratification of this Constitution" ample powers assumed by the public respondents and petitioner officials in these cases. The resolution in Jose v. Arroyo, G.R. No. 78435, (unsigned resolution dated August 11, 1987) is cited to justify the termination without cause of the services of the officers and employees involved in the instant cases. The Solicitor General argues that the usual invocation of the right to security of tenure is precluded by the constitutional provision. The Government relies on Jose v. Arroyo where we stated: The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution guaranteeing career civil service employees security of tenure overlooks the provision of Section 16, Article XVIII (Transitory Provisions) which explicitly authorize the removal of career civil service employees not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution. By virtue of said provision, the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of the Constitution and career civil service employees may be separated from the service without cause as a result of such organization. (Jose v. Arroyo, supra)

The above arguments have been laid to rest first in the case of Palma-Fernandez v. dela Paz, 160 SCRA 751 (1988), where we ruled: The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold-over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, et al. v. Hon. Benjamin B. Esguerra, et al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. (at p. 757) The Court was more emphatic in the seven (7) petitions collectively known as the Dario v. Mison cases (supra). First, the Arroyo v. Jose ruling is obiter dictum because Leonardo Jose's petition was "clearly premature, speculative, and purely anticipatory." There was no reorganization yet. Second, Arroyo v. Jose is an unsigned resolution where the nuances of the Court's pronouncements cannot possibly be ventilated as in a full-blown decision like Palma- Fernandez. And third, Palma-Fernandez is a later ruling which, in case of an inconsistency (actually more imagined than real), supersedes the earlier dictum. (Dario v. Mison, supra at pp. 46-49) We explained in these precedent-setting Dario V. Mison cases: As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first Proclamation No. 3-which had already been consummated-the second stage being that adverted to in the transitory provisions themselves-which is underway. Hence, when we spoke, in Arroyo of reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we cannot be said to have carried over reorganization

under the Freedom Constitution to its 1987 counterpart. Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra). As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stem as reorganization under the prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same cannot be said of the reorganization inferred under the new Constitution because precisely, the new Constitution seeks to usher in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to due process and noremoval-'except for cause provided by law' principles enshrined in the very same 1987 Constitution. (Article III, Sec. 1, and Art. IX (B), Sec. 2 (3) which may possibly justify removals 'not for cause,' there is no contradiction in terms here because, while the former Constitution left the axe to fall where it might, the present organic act requires that removals 'not for cause' must be a result of reorganization. As we observed, the Constitution does not 'provide' for automatic' vacancies. It must also pass the test of good faith-a test not obviously required under the revolutionary government formerly prevailing, but a test wellestablished in democratic societies and in this government under a democratic charter. And only recently, this Court promulgated the decision in Floreza v. Hon. Jaime Ongpin, et al., G.R. No. 81356 and the related case of Floreza v. Civil Service Commission, et al., G.R. No. 86156, February 26, 1990 where we declared the dismissal pursuant to a reorganization invalid and ordered the petitioner's reinstatement to his former position. A typical provision in all these challenged executive orders is the "hold-over" status of every single employee of the departments as a result of the implementation of the reorganization. One such provision would be section 24 of Executive Order No. 117 reorganizing the DECS, to wit:

SEC. 24. New Structure and Pattern. — Upon approval of this Executive Order, the officers (the term officer as used in this Executive Order is intended to be within the meaning of the term 'official' as used in the Freedom Constitution and the succeeding Constitution) and employees of the Ministry shall, in a hold-over capacity continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from the service pursuant to Executive Order No. 17 [1986]or Article III of the Freedom Constitution. (Emphasis supplied) Pursuant to the above provision, around 400,000 school teachers, janitors, clerks, principals, supervisors, administrators, and higher officials were placed on "hold- over status." When a public officer is placed on hold-over status, it means that his term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and has qualified. (See Topacio Nueno v. Angeles, 76 Phil. 12 [1946]). The petitioner in G.R. No. 78053 argues against the "holdover" feature of the challenged order in this manner: xxx xxx xxx ... To reduce four hundred thousand officers and employees most of them permanent, to holdover status preparatory to their eventual separation from the service many of them beyond middle age and too late to start a new career, is not only tyranny but cruelty of the first magnitude. Reorganizations can be accomplished without disruption of family life, so well respected and protected by the. 1986 (sic) Constitution when it says with honor and oxide, 'The State recognizes sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.' Moreover, this step is not in keeping with the mandate of the Freedom Constitution which tasks the President to make effective the guarantees of human rights against violations thereof. (Rollo, G.R. No. 78053, p. 5)

We view it, however, as a graphic illustration of the noncompliance with the bona-fide rule in reorganizations. In answer to questions posed during the oral arguments in these cases, the Solicitor General stated that there were persons other than Division Superintendent Francisco L. Mendoza who were not reappointed. As far as can be gathered from the records, however, it appears that out of 400,000 dismissed employees only one has chosen to come to this Court. Any others seem to have welcomed or accepted their forced retirement as they did not join the petitioners in these consolidated and other related cases. If everybody was going to be reappointed, except Mr. Mendoza and the relatively few unknown others who did not join in these reorganization cases and who would have retired if allowed to do so, what was the point in dismissing and then placing such a tremendous number of persons on hold-over status? An examination of the facts of these cases invariably shows that the bona-fide rule has been ignored or disobeyed. Except in the Office of the Press Secretary, there have been significant increases in the number of positions in affected Departments and agencies thus belying the claims of economy. Offices have been abolished but in their stead, offices performing substantially the same functions have been created. In some cases, e.g. the Science Promotions Institute in the Department of Science and Technology an office has been divided into two or more offices with a greater number of employees performing the same functions. Incumbents have been replaced by persons less qualified in terms of status, performance, and merit as in the Department of Tourism where a driver with 27 years government service, a messenger with 14 years, bookkeepers, and others with citations and honors have been replaced by appointees with lesser qualifications and seniority. It is a paramount principle in Public Officers' Law that the power to abolish public offices vested in the legislature is not absolute. It is subject to the limitations that it be exercised in good faith, should never be for personal or political reasons, and cannot, be implemented in a manner contrary to law. (Cruz v. Primicias, 23 SCRA 998 [1968]; Maza v. Ochave, 20 SCRA 142 [1967]; Abanilla, et al. v. Ticao, et al., 17 SCRA 652 [1966]; Ocampo, et al. v. Duque, et al., 16 SCRA 962 [1966]; Llanto v. Ali Dimaporo, et al., 16 SCRA 599 [1966]; Arao v. Luspo, 20 SCRA 722 [1967]; Guillergan, et al. v. Ganzon, et al., 17 SCRA 257 [1966]; Urgelio v. Osmena, Jr., 9 SCRA 317 [1963]; Alipio v. Rodriguez, 9 SCRA 752 [1963]; Briones, et al. v.

Osmena, Jr., et al., 104 Phil. 588 [1958]); and Gacho, et al. v. Osmena, Jr., etc., et al., 103 Phil. 837 [1958]). Speaking through Mr. Justice J.B.L. Reyes, the Court was very emphatic in Cruz v. Primicias, Jr., supra that an abolition which is not bona-fide but is merely a device to circumvent the constitutional security of tenure of civil service employees is null and void. These principles were reiterated in De la Llana v. Alba (112 SCRA 294 [1982]) where we sustained a bona-fide reorganization, to wit: Nothing is better settled in our laws than that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. (23 SCRA 998) reiterated such a doctrine. 'We find this point urged by respondents, to be without merit. No removal or separation of petitioners from the service is here involved but the validity of the abolition of their offices. This is a legal issue that is for the courts to decide. It is a wellknown rule also that valid abolition of offices is neither removal nor separation of the incumbents. And of course, if the abolition is void, the incumbent is deemed never to have ceased to hold office....' As well-settled as the rule that the abolition of an office does not amount to an illegal removal of its incumbent is the principle that, in order to be valid, the abolition must be made in good faith. (at pp. 321-322). As in the Dario v. Mison cases, we disregard the procedural roadblocks which the parties on either side have tried to erect against each other: The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain parties to sue, (This was raised by the Civil Service Commission in G.R. No. 86241. Failure to exhaust administrative remedies was raised in G.R. Nos. 81954 and 81917 by the Solicitor General) and other technical objections, for two reasons, '[b]ecause of the demands of public interest, including the need for stability in the public service', (Sarmiento III v.

Mison, No. 79974, December 17, 1987, 153 SCRA 549, 551-552) and because of the serious implications of these cases on the administration of the Philippine civil service and the rights of public servants. (G.R. No. 81954 and related cases, August 8, 1989, pp. 2324) III In G.R. No. 78053, it is apparent that the petitioner's termination as Schools Division Superintendent of Surigao City was pursuant to the public respondent's view that under Section 24 of Executive Order No. 117 all incumbent officials/personnel of DECS were on hold-over status unless advised otherwise. The dismissal of all employees and their being placed on holdover status is particularly objectionable in the DECS. There could have been no intention to get rid of hundreds of thousands of school teachers. The use of "reorganization" even under the concept advocated by the Solicitor General appears trivial if not unnecessary. Division Superintendents usually start as classroom teachers and move up to principals, district supervisors, and assistant superintendents usually over more than thirty years of service before appointment as Division heads. At each rung of the promotional ladder, there are qualifying examinations and rigid background checks. The big number of competitors insures some degree of safeguards against abuses. To use reorganization of the biggest Department in the government in order to avoid the hassles of bringing administrative charges against Mendoza and perhaps a few other alleged persona-non-gratas like him is precisely what this Court rejects when we apply the bona-fide rule. One does not burn down a house if his purpose is to roast alleged pests. The petitioner was appointed in a "PERMANENT STATUS" besides having a rating of 79% for the rating period of May 1986 to April 1987, which is considered "Very Satisfactory" under the "Rating Sheet for Key MEC Officials." There was grave abuse of discretion when the petitioner's services were terminated by a mere letter-order on the justification that the petitioner, together with the entire personnel of the DECS, was only in a hold-over capacity. If the petitioner is guilty of wrongdoing, it is an easy matter to Me charges against him instead of placing the entire DECS on hold-over status in order to run after him.

In G.R. No. 78525, the public respondents justify the termination of the petitioners as follows: 1) as regards seventeen of the petitioners, they were previously employed in the abolished Bureaus (Tourism Services and Bureau of Tourism Promotions). Therefore, the public respondents argue that since the positions of the seventeen petitioners were abolished, they can not claim impairment of their right to security of tenure; 2) as regards the remaining petitioners, the public respondents argue that although their positions were not abolished, their separation from the service without cause is also valid pursuant to Section 16, Article XVIII, 1987 Constitution and the case of Jose v. Arroyo, supra. The public respondents maintain that due process was observed since the petitioners were evaluated in accordance with the criteria in Section 27 of the Civil Service Act giving them examinations to determine their competence and/or having them interviewed by their superiors and/or civil service commissioners or personnel specialists and/or requiring them to submit self-evaluation reports; and/or referring to their personnel records. As we stated earlier, ritual invocation of the abolition of an office is not sufficient to justify the termination of the services of an officer or employee in such abolished office. Abolition should be exercised in good faith, should not be for personal or political reasons, and cannot be implemented in a manner contrary to law. "Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.' (Dario v. Mison cases, p. 50). If an executive department is bloated with unnecessary employees, there can be no objection to a law abolishing the useless or nonessential items. In the instant case, however, all items, including the essential ones, were declared vacant. There is absolutely no showing that the positions of tourism field coordinator, bus driver, bookkeeper, accounting clerk, librarian, nurse, telephone operator, messenger in fact, any of the items occupied by the petitioners-are unnecessary and must be chopped off. In the case of Rama v. Court of Appeals, (148 SCRA 496 [1987]), we ruled: ... It is an undeniable fact that the dismissed employees who were holding such positions as foremen, watchmen, and drivers, suffered the uncertainties of the unemployed when they were plucked out of their positions. That not all of them

testified as to the extent of damages they sustained on account of their separation from their government jobs, cannot be used as a defense by the petitioner. Suffice it to state that considering the positions they were holding, the dismissed employees concerned belong to a low-salaried group, who, if deprived of wages would generally incur considerable economic hardships. xxx xxx xxx xxx xxx xxx Apropos the practice of victorious politicians to remove government employees who did not support them in their campaign for office, this Court has said: 'There are altogether too many cases of this nature, wherein local elective officials, upon assumption to office, wield their new-found power indiscriminately by replacing employees with their own proteges regardless of the laws and regulations governing the civil service. Victory at the polls should not be taken as authority for the commission of such illegal acts. (Nemenzo v. Sabillano, L20977, September 7, 1968, 25 SCRA 1) The rule does not apply to local officials alone. It is even more true for national offices. It would be the height of naivete to presume that in the rapid filling up of several hundred vacated positions, no personal or political considerations would creep into the selection process. The civil service law was evolved as a reaction to the spoils system. The petitioners are employees of the Department of Tourism holding permanent positions. Most of them have served the government for extended periods, from twelve (12) years to twenty-seven (27) years. No one of them has a pending administrative charge. Many of them have received numerous citations, awards, and honors for meritorious services. The public respondents have given no individual reasons for each of the affected employees as to why they are being dismissed from their employment except to emphasize in a general manner the existence of near absolute power to cut off their means of livelihood. The lip service paid by the respondents to due process whereby supervisors who were themselves later dismissed, were ordered to give "evaluations" on the performance of the laid off personnel is no

substitute for more regular procedures in getting honest to goodness results. The advice sought from "Personnel Specialists" of the Civil Service Commissioners, who should have known better than to participate in a violation of the rules their agency espouses is only window-dressing for what this Court called in Cruz v. Primicias, supra as a "subterfuge resorted to for disguising an illegal removal of permanent civil service employees." The employees are terminated without being given reasons for their dismissal. Only the appointing authority knows why employees are no longer reappointed. The circumstances are different in G.R. No. 81197 filed by personnel in the Office of the Press Secretary. As earlier stated, out of 770 regular employees of the Bureau of Broadcast and Radyo Ng Bayan, only 333 employees were retained in the new and merged office of Bureau of Broadcast Services. The intent to abolish unnecessary items and to keep them abolished has not been satisfactorily refuted by the petitioners. Fifteen petitioners hold temporary appointments. There is no showing way these 15 employees should be exceptions to the established rule that persons holding temporary or casual appointments do not enjoy the security of tenure extended to permanent personnel. The Solicitor General in his Consolidated Memorandum filed on March 10, 1989 manifested: Subsequently, or on January 19, 1988, a Supplemental Petition was filed by all the above. In the meantime, during the pendency of the instant case before this Honorable Court, the OPS requested the Budget Office for a supplemental or additional plantilla, which has been recently approved on January 26, 1989. Also, the present status of all the 84 petitioners is as follows: (a) 61 petitioners have already availed of separation benefits. (b) 3 petitioners have already availed of separation benefits. (c) 1 petitioner is likely to apply for separation benefits after being cleared by COA of her property accountability. (d) 6 petitioners are not expected to avail of separation benefits for being contractual employees.

(e) 1 petitioner (Romulo Salcedo) has already been reinstated out of deference to a Resolution of the Civil Service Commission, whose jurisdiction OPS had doubted. At any rate, Salcedo passed the OPS exams/interviews, but could not previously be accommodated due to limited number of positions under new staffing pattern. (f) 1 petitioner is presently serving as volunteer in anticipation of a position under the requested supplemental plantilla (now approved). (g) 10 petitioners are performing duties in hold-over capacity likewise in anticipation of a position under the supplemental plantilla (5 of these 10 petitioners disclaim having authorized their inclusion as petitioners in the instant case). (h) 1 petitioner (Corazon Carluen) had accepted a position lower than the position of radio production announcer which she applied for but for which she was shown not to be qualified. On January 24 and 31, 1989 when the instant petition was scheduled for oral arguments before this Honorable Court, neither petitioners nor their counsel appeared, the case for all intents and purposes having become moot and academic. Thus, on the bases alone of aforesaid developments during the pendency of the instant petition, dismissal of the instant petition is warranted. In any event, the instant petition is without merit in the light of the progressive reorganization undertaken by the sovereign people in the aftermath of the EDSA Revolution. (Rollo of G.R. No. 81197, pp. 71-73) On February 13, 1990, we issued a resolution, to wit: For failure of Atty. Alfredo V. Zerrudo, Jr., counsel for petitioners in G.R. No. 81197 to comply with the resolutions of (a) April 12, 1988 which required among other things, the parties to file their respective memoranda, (b) September 6, 1988, requiring aforesaid counsel to show cause why no

disciplinary action should be taken against him for failure to file memorandum and to comply with the resolution of April 12, 1984 and (c) November 8, 1988 which imposed on Atty. Zerrudo, Jr., a fine and required him to comply with the resolution of September 6, 1988, the Court Resolved to (d) ORDER THE ARREST of aforesaid Atty. Alfredo V. Zerrudo. xxx xxx xxx Not only did the petitioners fail to appear during the hearings and fail to file the required memorandum but up to this time, we have not heard anything from them. Apparently, the petitioners have lost interest in prosecuting the instant case in view of the supervening events stated by the Solicitor General. In G.R. No. 81495, the petitioners raise the following arguments: (1) The 1987 Constitution, in its section 16, Article XVIII justifies the dismissal of career civil servants not for cause: (2) Executive Order No. 128 does not violate security of tenure but merely allows employees to continue on a "hold-over" capacity, (3) The ruling in Jose v. Arroyo supra states that a reorganization may continue even after the ratification of the Constitution and dismissal without cause as a result of such reorganization are valid. We have discussed earlier why these arguments are not well-taken. In the Mison cases, we categorically stated that section 16, Article XVIII of the 1987 Constitution does not sanction indiscriminate dismissals without cause. We have also discussed why the "hold-over" status of all employees/officers provided for in the executive orders reorganizing the various departments in government cannot be ordered and implemented during the effectivity of the 1987 Constitution (which was on February 2, 1987). Civil service eligibles can no longer be removed without cause as they already enjoy the constitutional right to security of tenure. This was the ruling in the Palma-Fernandez v. de la Paz decision and the Dario v. Mison cases which clarified and tempered the abbreviated language of the Jose v. Arroyo decision cited by the petitioners. In G.R. No. 81928, the issue involves the validity of the abolition of the office of the petitioner. The petitioner maintains that the abolition of the Science Promotion Institute (SPI) and the consequent creation of two offices namely the Science Education Institute (SEI) and the

Science and Technology Information Institute (STII) pursuant to Executive Order No. 128 was not effected in good faith. The petitioner contends that the SPI has not been abolished but merely split into two (2) offices whose combined functions are substantially Identical with the functions of the SPI. Moreover, the petitioner contends that the two newly created offices provide for thirteen (13) management positions which is more than the number of said position in the SPI. Section 4, Republic Act No. 770 which enumerates the functions of SPI reads: SEC. 4. The purposes of this Corporation (SFP, subsequently renamed and converted to SPI) shall be: a) To initiate, promote, stimulate, solicit, encourage and support basic and applied scientific research in the mathematical, physical, medical, biological, engineering and other sciences, by means of grants, loans and other forms of assistance to qualified persons and institutions applying for the same; b) To award scholarships and graduate fellowships in the mathematical, physical, medical, biological, engineering and other sciences; c) To foster interchange of scientific information among scientists here and abroad; d) To aid in the establishment of adequate scientific laboratories; and, e) To encourage, protect and aid in the organization of science clubs and societies in the schools and colleges of the Philippines. (Sec. 4, RA No. 770) Sections 26 and 27 of Executive Order No. 128 which enumerate the functions of the SEI. and STII respectively read: SEC. 26. Science Education Institute. — There is hereby created the Science Education Institute, which shall have the following functions: a) Undertake science education and training; b) Administer scholarships, awards and grants; c) Undertake science and technology manpower development;

d) Formulate plans and establish programs and projects for the promotion and development of science and technology education and training in coordination with the Ministry of Education, Culture and Sports, and other institutions of learning in the field of science and technology. ... (Sec. 26, EO No. 128) SEC. 27. Science and Technology Information Institute. — There is hereby created the Science and Technology Information Institute which shall have the following functions: a) Establish a science and technology databank and library; b) Disseminate science and technology information; and c) Undertake training on science and technology information ... (Sec. 27. EO 128). We find no substantial differences between the functions of the two newly created offices and those of SPI. Indeed, their functions are similar in the promotion, encouragement, and support of the development of science and technology. The public respondents' contention that the functions of two newly created offices are not substantially similar to those of SPI is untenable. Pursuant to section 2, Republic Act No. 6656 this circumstance ... where an office is abolished and another performing substantially the same functions is created ... " is considered as "evidence of bad faith in the removal made as a result of reorganization giving rise to a claim for reinstatement .. ." Moreover, there is merit to the petitioner's contention that there is an increase in the number of management positions from nine (9) of SPI to the thirteen (13) of the STII and SEI. This increase violates RA 6656 in that "... where there is a significant increase in the number of positions in the new staffing pattern ...", these circumstances " ... may be considered as evidence of bad faith .. ." The respondent contends that the petitioner was terminated as a result of the reorganization. The petitioner alleges that he was separated in view of his refusal to comply with the alleged anomalous demand of the respondent to turn over SPI funds to the DOST proper. Since vestiges of bad faith as defined by statute and this

Court surrounded the abolition of his office, the petitioner should be reinstated and be given an equivalent position in either the STII or SPI. In G.R. No. 81998, the Solicitor General in this consolidated Memorandum manifests: In the case, there is actually no reorganization involved. Petitioner Rogelio Bustamante, who appeared in his own behalf and for his copetitioners ADMITTED in open court during the oral argument on February 1, 1989 that not one of the petitioners was removed from his or her position. Otherwise stated as of the dates the original and supplemental positions were filed no employee has as yet been removed, replaced or reorganized out. It is respondents' submission that even if it is assumed that petitioners would eventually be removed from their positions as a result of the reorganization of the Department of Agriculture pursuant to Executive Order No. 116, still petitioners' grievance has no legal or constitutional mooring in the light of the pronouncement of this Honorable Court in Leonardo A. Jose v. Joker P. Arroyo, et al. ... We apply the principle earlier stated that the case of Jose v. Arroyo, supra has been superseded by the Palma-Fernandez v. de la Paz (supra) and the Dario v. Mison (supra) cases to the effect that after February 2, 1987 civil service eligibles in the government service enjoy the constitutional right to security of tenure. The petitioners, therefore, can not be removed by mere notices of termination, without due notice and hearing and not knowing the valid grounds for the termination of their services. In G.R. No. 86504, the petitioner who was then the Secretary of the Department of Transportation and Communications (DOTC) considered the respondents to be holding their positions in a holdover capacity pursuant to section 20 of Executive Order No. 125. Under this premise, the petitioner declared all positions of the department vacant including those of the respondents and thereafter extended new appointments as part of the reorganization of the department.

This is, therefore, another case where the hold-over procedure is used as a justification. The record shows that before reorganization, the respondents and Aureliano de Leon were officers of the Bureau of Telecommunications (BUTEL) holding the following items: (1) Respondent Austria was the Chief of the National Telegraphic Transfer Service (NTTS) (Range 75) since March 16, 1984; (2) Respondent Gervacio was Administrative Officer V (Chief of the Administrative Division) (Range 73) since September 1982; and (3) Aureliano de Leon was Administrative Officer III (Range 70). He was under Gervacio's supervision as Chief of the Supply Unit. BUTEL was retained under the reorganizational scheme of the department. The name of the agency was only changed to Telecommunications Officer (TELOF). The item of NTTS Chief was retained. As regards the position of Chief of the Administrative Division, the petitioner claims that the Administrative Officer V (Range 73) position was abolished and in its stead there was created the position of Administrative Chief II (Range 75). Evaluations to the new positions started after the effectivity of the 1987 Constitution. Parenthetically, the petitioner was incorrect in holding the Position of Austria as NITS Chief vacant. At the time Austria was transferred to another position, Austria already enjoyed the constitutional right to security of tenure under the new Constitution. Austria has been in the government service for forty-three (43) years and was nearing retirement (he was 63 years old) at the time be was transferred to another position lower in rank (Administrative Officer I Range 64) which the petitioner admits to be a demotion. Certainly, this is contrary to the resolution of the DOTC-RAB to the effect that "the Board resolves to direct the Telecommunications Office and the Department's Selection and Placement Committee to consider Mr. Austria in the evaluation of the candidates for the other Division Chief positions in the Telecommunications Office ..." (p. 104, Rollo). Hence, we find no plausible reason why he should be removed from his position or transferred to a position-lower in rank (Administrative Officer I) which the petitioner admits to be a demotion. As regards the position of Chief of the Administrative Division, Gervacio was already chief of the Division when it was abolished and then re-created with a salary range two points higher. We affirm the respondent Civil Service Commission's (CSC) ruling that Gervacio should be appointed as such and not Aureliano de Leon, to wit:

Gervacio, on the other hand, should be appointed Administrative Service Chief II. Although Aureliano de Leon meets the qualifications of the position, he was merely an Administrative Officer III before the reorganization very much lower than the position held by Austria and Gervacio. Gervacio not only meets the qualification standards for the position but also has retention score higher than de Leon who was merely his supervisee before the reorganization of TELECOM. Moreover, his legal profession/expertise which is not possessed by de Leon is a great asset of Gervacio in the performance of the functions and duties of, as well as in meeting the challenges attendant to the Administrative Service Chief II. Gervacio, therefore, has more advantages than de Leon in point of service, qualification, competence, training and years of government experience in the job. (Rollo of G.R. No. 86504, p. 109) Section 2, Republic Act -No. 6656 provides that among the circumstances which may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise to a claim for reinstatement or reappointment by an aggrieved party is ... (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit .. ." (Emphasis supplied) The rule is that "the appointing person enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the duties and assume the responsibilities of the position to be filled ... Unless the law speaks in mandatory and peremptory tone, there should be full recognition of the wide scope of such discretionary authority." (Central Bank of the Philippines, et al. v. Civil Service Commission, et al. G.R. Nos. 80455-56, April 10, 1989). In this case, an incumbent was dismissed and his subordinate was appointed to his former office, in the course of the reorganization program. Congress has stated the rule. We apply it. G.R. No. 86547 is similar to G.R. No. 78525 in that: (1) the petitioner in G.R. No. 86547 (Secretary of Agriculture) and the respondent in G.R. No. 78525 (the Secretary of Tourism) terminated the services of the employees in their respective departments (respondents in G.R.

No. 86547 and petitioners in G.R. No. 78525) for either of the two reasons: (a) Abolition of the employees' positions or offices, and (b) As regards the employees whose positions were not abolished, their non-appointment is sanctioned by the Executive Order reorganizing the department and which was recognized in the Jose v. Arroyo case; (2) The affected employees were mostly from the low salaried groups like clerks, fishery aide, secretary, liaison officer, carpenter, driver, security guard, bookkeeper, information writer, and accounting clerks; (3) Some of the affected employees perform necessary jobs, in the instant case like Soil Technologist, Fishery Agent, Agronomist and Fishery Biologist; and (4) The affected employees were terminated in their employment by mere notices of termination. Under the circumstances, we find no need to discuss the various arguments in the petition. We apply our findings and conclusions in G.R. No. 78525 to the instant case. In G.R. No. 88951, the petitioner assails the resolutions of the Civil Service Commission (CSC) on the following grounds: 1) The termination of services of the private respondents was brought about by the abolition of the offices of OMACC and PHILPA where they were employed pursuant to Executive Order No. 122; 2) The private respondents cannot claim security of tenure pursuant to section 16, Article XVIII of the 1987 Constitution which is considered a "progressive" type of reorganization and to the ruling in the case of Jose v. Arroyo (supra); and 3) The petitioner acted in good faith by observing all presidential issuances, orders and memoranda on reorganization. There is no need to discuss the merits of the first two grounds. They have been sufficiently discussed earlier. But, was the reorganization of the Department done in bad faith? After conducting hearings, the CSC stated the following: Memorandum Circular No. 10 dated September 2, 1986 of the CSC was issued to 'effectively implement the reorganization in government offices particularly on the selection and placement of personnel and in order that the best qualified and most competent personnel in the career service are retained, .. .'This Circular prescribes that 'the officials and employees shall be compared on the basis of the status of their appointment, competence to perform their duties and moral

fitness to discharge their responsibilities and, those who squarely meet the qualification requirements for the position in terms of education, training and experience shall be preferred .. .'The records do not show that appellants were evaluated for retention purposes in accordance with the guidelines on reorganization. Moreover, the Unnumbered Memorandum of the President dated October 2, 1987 containing guidelines on the implementation of the Reorganization Executive Orders provides that the ongoing process of government reorganization should be conducted 'in a manner ... that is sensitive to the dislocating consequences arising from specific organization ... and that the entire process of reorganization must be carried out in the most humane manner possible. Appellants were unceremoniously terminated by a memorandum order of a mere Acting Assistant Executive Director even before the position structure and staffing pattern of the OMA were approved and prescribed by the authorities as required by EO 122-A. Even in reorganization of government agencies, career service employees are entitled to security of tenure. The instant case involves government reorganization by way of abolishing one agency and replacing it with another. Such being the case, the guidelines on placement of personnel in reorganizing agencies must be complied with. Regarding those who have retired or were phased out and have already received their separation benefits, they are now estopped or deemed to have lost their light, if any, to re-appointment. On the claim of the respondent that some appellants are already employed in other government offices, the records are bereft of evidence to support the said allegation. Likewise, from the records, the following findings have been established:

1. The acting Assistant Executive Director of the OMA has no power to terminate the services of the former OMACC/PHILPA personnel; 2. New employees who are not civil service eligibles have been appointed to positions in the new staffing pattern of OMA; CSC approval of these appointments is subject to the result of reorganization appeals; 3. The positions involved are not confidential positions and hence, not subject to the trust and confidence of the appointing authority; 4. There is no substantial change in the mandate of the new office, which is the OMA. Executive Order Nos. 6 and 122-A clearly delineates the functions and responsibilities of OMA as envisioned by Executive Order No. 6 and 122-A of President Corazon C. Aquino; 5. The incumbents of OMACC and PHILPA are entitled to security of tenure and therefore to reappointment in the newly created agencies such as Office on Muslim Affairs, Office of Northern Cultural Communities and Office of Southern Cultural Communities; and 6. OMA did not observe the transparency requirement by treating the OMA Plantilla of Personnel and staffing pattern confidential. (Rollo, G.R. No. 88951, pp. 58-60) These findings show that contrary to the petitioner's allegation, the termination of the services of the private respondents was not done in good faith. In G.R. No. 89427, the Solicitor General, instead of filing a Comment to the Petition, filed a Manifestation on December 23, 1989 stating therein that he was informed by respondent Secretary of Health Alfredo R.A. Bengzon "that the papers for the reinstatement of Dr. Villazor are now undergoing process in the Department and said petitioner will be reinstated to his position as Assistant Provincial Health Officer.' The Solicitor General, therefore, manifests that the instant petition should be dismissed for being academic. This manifestation was opposed by the petitioner who claims that the processing of his papers for reinstatement is not a reinstatement but

simply a process and until the petitioner is actually reinstated the instant case cannot be purely academic. Considering the manifestation and the opposition thereto, we rule that the petition has indeed become academic. No useful purpose can be served by discussing the issues as to whether or not the petitioner should be reinstated when the public respondent by assuring this Court that the petitioner shall be restored to his former position has recognized the petitioner's right to be given back the position earlier taken away from him. IV One of the causes of instability constituting a clear deterrent to efficiency and honesty in Government is the widespread and incessant reorganization of executive departments and offices, the abolition of all positions from the highest to the lowest and the subsequent restoration and filling up of all the abolished items and new ones that have been created. Security of tenure, together with the merit and fitness rule, is a basic feature of the civil service scheme we have adopted in the Philippines. If established principles protecting security of tenure are to be disregarded or waived, this can be done only on the basis of clear constitutional grounds. It is significant that in the charters or legislative authority for the exercise of power-the Provisional Constitution of 1986, Executive Order No. 17, and Republic Act No. 6656- any reorganization in Government must follow the bona-fide rule. There is no basis in the above laws for indiscriminate dismissals. The executive implementors of policy are required to abide by the intent and purpose stated in the grant of power, to follow the guidelines set out for them and, in the words of the President "ensure that only those found corrupt, inefficient, and undeserving are separated from the government service." We are constrained to set aside the reorganizations embodied in these consolidated petitions because the heads of departments and agencies concerned have chosen to rely on their own concepts of unlimited discretion and "progressive" Ideas on reorganization instead of showing that they have faithfully complied with the clear letter and spirit of the two Constitutions and the statutes governing reorganization. The auto-limitations imposed by the President on herself have not been followed by the alter egos. The members of Congress have

spoken out on how any valid reorganization should be conducted. Their voice should be heeded. The Damocles sword of reorganization hanging over the heads of public servants with every change of administration and sometimes with the change of agency heads does not serve in any way the restoration of democracy, the eradication of graft and corruption, and the rebuilding of confidence in the government if the bona-fide rule and the basic guidelines are not followed. The justification implicit in all these purges, which is to rid the government of the iniquitous vestiges of the past regime or of any regime for that matter is conceded. If the purges were limited to policy making officials, administrators, commissioners, special assistants, directors and other high-ranking personnel there may be some legal basis for their dismissal on a more or less summary inquiry into their shortcomings. However, we fail to see how drivers, messengers, clerks and lower-level employees like most of the petitioners who have been working at ordinary jobs for decades could in any way be iniquitous vestiges of any regime. These low ranking employees, who had nothing to do with martial law or hidden wealth, suffer the most from indiscriminate firings. The issues are not limited to the employees or the departments and/or agencies of the government now before us. For any one who is affected, a termination notice is the equivalent of capital punishment. A driver who has worked 27 years in the government, a budget examiner for 25 years, a messenger for 14 years and many of the other petitioners would find it difficult to find new employment after giving the best years of their humble lives to the government service. And even for those who are re- appointed, the damage to the civil service has been done. Instead of amassing credits based on merit or fitness, these employees will be thinking in terms of patronage, as to who might be of help come the next reorganization. We stressed in the case of Meram v. Edralin (154 SCRA 238 [1987]): The principles governing the integrity of the civil service are of universal validity. As stated in the case of Hanley v. Murphy (255 P. 2d. 1, 4): ... The civil service system rests on the principle of application of the merit system instead of the spoils system in the matter of appointment and tenure of office. (Barry v. Jackson, 30 Cal. App.

165, 169, 157 P. 828) To that end the charter establishes a classified civil service system, with exclusive power in the civil service commission to provide qualified personnel, for the various municipal departments and to classify or reclassify positions according to prescribed duties. ... Furthermore, civil service laws are not enacted to penalize anyone. They are designated to eradicate the system of appointment to public office based on political considerations and to eliminate as far as practicable the element of partisanship and personal favoritism in making appointments. These laws intend to establish a merit system of fitness and efficiency as the basis of appointment; to secure more competent employees, and thereby promote better government. (See Gervais v. New Orleans Police Department, 77 So 2d, 393; Civil Service Board of City of Phoenix v. Warren, 244 P 2d 11 57 citing State ex rel. Kos v. Adamson, 226 Minn. 177, 32 N. W. 2d 281, 284). Only a scrupulous adherence to the bona-fide rule will prevent the erosion of the fragile foundations of the Philippine civil service. The development of a truly career and non-partisan civil service is a must in sound developmental planning. Its achievement will not be helped in any way by the kind of reorganization challenged in these petitions. The wounds inflicted by indiscriminate dismissals of all employees, even on those later reappointed to their former positions, win take a long time to heal. If a person is dismissed from his job, he should be informed of the reason. The reason should be in the Civil Service Law or, at least, in the law authorizing the removal. The reason must have a reasonable relationship to the employee's merit and fitness for the job. He must be given, before he is fired, an opportunity to show that the cause for removal does not apply to Mm. Elementary principles of fairness and compassion are essential. Only then can the reconciliation and unity so earnestly sought today be achieved. WHEREFORE, PREMISES CONSIDERED, the Court hereby renders judgment as follows:

1) In G.R. No. 78053, the petition is GRANTED. The LETTER-ORDER dated MARCH 19, 1987 issued by the public respondent which terminated the services of the petitioner is SET ASIDE. The successor of the public respondent, the former Lourdes R. Quisumbing as Secretary of Education, Culture and Sports, is ordered to restore the petitioner to his position as Schools Division Superintendent of Surigao City without loss; of seniority rights and with back salaries reckoned from the date of his termination. 2) In G.R. No. 78625, the petition is GRANTED. All office orders and memoranda issued, pursuant to Executive Order No. 20 are declared null and void. The public respondents or their successors are ordered to immediately restore the petitioners to their positions without loss of seniority rights and with back salaries computed under the new staffing pattern from the dates of their invalid terminations at rates not lower than their former salaries. 3) In G.R. No. 81197 the petition is DISMISSED for being MOOT and ACADEMIC and for the failure of petitioners to prosecute their case. 4) In G.R. No. 81495, the petition is DISMISSED. Except in the cases of those who have retired or opted to be phased out and who have received their separation and retirement benefits, the petitioners are ordered to retain the private respondentsemployees in the reorganized department under the new staffing pattern with positions and salaries comparable or equivalent to their former positions but not lower than their former ranks and salaries. 5) In G.R. No. 81928, the petition is GRANTED. The order dated September 25, 1981 issued by the public respondent which terminated the petitioner's employment is SET ASIDE. The public respondent or his successor is ordered to reinstate and assign the petitioner to any position closest to his old position in either the STII or SEI in terms of functions, duties, salary emoluments and privileges,

and without demotion in his rank, salary and privileges as of September 24, 1987 when the invalid termination of services was effected. 6) In G.R. No. 81998, the petition is GRANTED. The public respondents or their successors are ordered to return the private respondents to their positions with compensation based on comparable or equivalent rates under the new staffing pattern but not lower than their former salaries. 7) In G.R. No. 86504, the petition is DISMISSED. The questioned resolutions of the Civil Service Commission are AFFIRMED. The temporary restraining order issued on September 5, 1989 is lifted. 8) In G.R. No. 86547, the petition is DISMISSED. Except for those who retired or opted to be phased out and who have received their separation and retirement benefits, the petitioner or his successor is ordered to return the private respondents to their former positions or to positions of comparable rank in the reorganized department without loss of seniority rights. 9) In G.R. No. 88951, the petition is DISMISSED. The questioned resolutions of the Civil Service Commission are AFFIRMED. 10) In G.R. No. 89427 the petition is DISMISSED for being MOOT and ACADEMIC. SO ORDERED. Cruz, Paras, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Padilla, J., took no part. Griño-Aquino, J., is on leave.

Separate Opinions FERNAN, C.J., Separate Concurring & Dissenting: I write this separate opinion upon the sad realization that in the final analysis, we may have unwittingly frustrated our people's unmistakable clamor for a complete reorganization of the

government. 1 For in ruling as it did in these consolidated cases (As in the Dario cases, G.R. No. 81954, August 8, 1989), the majority has in no uncertain terms set to naught the reorganization efforts not only in the various departments, agencies and offices involved herein, but in the entire bureaucracy. The majority would insist on distinguishing the reorganization process effected under the Freedom Constitution from that which may be undertaken under the 1987 Constitution, with the self-defeating proviso that in the latter case, "civil service eligibles can no longer be removed without cause as they already enjoy the constitutional right to security of tenure. 2 Such fragmented view does not sit well with the law. It does not take into account the various reorganization executive orders issued by the President prior to the ratification of the 1987 Constitution precisely to ensure the continuity of the reorganization process commenced under the Freedom Constitution and carried over to the 1987 Constitution, or the recognition by the latter constitution itself of the "reorganization following the ratification of this Constitution 3 which, to my mind, cannot but mean the same reorganization contemplated under the Freedom Constitution. Otherwise, the 1987 Constitution would have provided for an automatic hold-over clause as did the 1935 and 1973 Constitutions. Such clause was, however, deemed no longer necessary for the same has been provided under the Freedom Constitution and the various reorganization executive orders. Nor does the interpretation insisted upon by the majority jibe with reality. The reorganization of a department with its numerous bureaus, offices and sections is a major undertaking. It entails intensive management study and audit, personnel evaluation, formulation of new position structures and staffing patterns, budget allocation, etc., which steps necessarily take time to accomplish. With the Court's pronouncement in these cases and the Dario cases, supra, cutting short the reorganization process mandated by the people in the Freedom Constitution to February 2,1987, it is indeed doubtful whether any government department had fully implemented its reorganization program, that is, if it had at all formulated one, considering time constraints. But by herein maintaining the basis of my dissent in the said Dario Cases, supra, that the reorganization pursuant to Proclamation No. 3 continues even after the ratification of the 1987 Constitution, I find myself concurring in the result obtained in G.R. No. 78053.

Therein petitioner Francisco L. Mendoza was Schools Division Superintendent in the then Ministry (now Department) of Education, Culture and Sports, with official station at Surigao City. Pursuant to the government reorganization decreed under Art. III of the Freedom Constitution, he was appointed to the same position with the same place of assignment effective June 4,1986. Sometime during the last week of March, 1987, he received, through the Regional Director, Region X, a letter order dated March 19, 1987 signed by respondent Secretary of Education, Culture and Sports Lourdes R. Quisumbing, informing him of his separation from the service effective April 15, 1987. 4 Cited as basis for said personnel action was Executive Order No. 117 approved by President Aquino on January 30, 1987. The arbitrariness in this case is obvious. Even before Executive Order No. 117, the law relied upon by respondent, was enacted on January 30, 1987, the government reorganization mandated under the Freedom Constitution was already being implemented. In fact, as aforesaid, said executive order as well as the other reorganization executive orders were intended to prolong or extend the period of implementing the reorganization program. Simply put, Executive Order No. 117 was a mere continuation of the government reorganization being implemented at the time of its enactment. Upon these considerations, there can be no plausible explanation why in June, 1986, when the government reorganization was already being implemented, petitioner was deemed qualified to remain in the service, as evidenced by the issuance of an appointment (actually a re-appointment) to him on a permanent status as Schools Division Superintendent, yet barely ten (10) months after, he was suddenly found unfit to continue in office. The questioned personnel action becomes even more perplexing when taken in conjunction with the performance rating of "Very Satisfactory" given to petitioner during the period May, 1986 to April 1987, the very month he was considered separated from the service. 5 I cannot, however, reconcile myself with the alacrity by which the majority would attribute bad faith to the reorganization undertaken by some respondents (particularly the Department of Tourism in G.R. No. 78525) based on standards established by a subsequent law of doubtful constitutionality. 6 The principle is that good faith is presumed while bad faith must be proved. The majority would reverse the rule despite a showing, unrebutted by petitioners in G.R. No. 78525, that all personnel actions were taken on the basis of

interviews, evaluation of supervisors, performance and self-appraisal of the employees, as well as recommendations of Civil Service Commissioners, who were chided for not knowing any better "than to participate in a violation of the rules of their agency." 7 Indeed, one is compelled to ask: if you can't rely on the advice of experts, whom can you depend on? The security-of-tenure argument accorded merit by the majority would hold water under ordinary circumstances, but not under the exceptional factual milieu obtaining in the cases at bar. The removal from office of petitioners, respondents in some cases, was the result of the reorganization of the various executive departments undertaken immediately after the installation of the Aquino government, at which time, the people's clamor to promote efficiency and effectiveness in the delivery of public service, rebuild confidence in the entire governmental system and eradicate graft and corruption therein was at its highest. The need was so grave and serious, so basic and urgent, that nothing less than extra-ordinary measures were called for. In the balancing of interests, as between the very essence of a government as a machinery for the common good and the security of tenure guaranteed by the Constitution to those in government service, one must prevail. Since in our form of government, public offices are public trusts, and the officers are servants of the people and not their rulers, the choice is evident. There is no gainsaying the initial difficulty facing those who were displaced by reason of the sweeping governmental reorganization. The government itself however, has adopted such measures as to "soften the impact" by providing, among others, in its Guidelines on the Implementation of Reorganization Executive Orders that in the event of termination, the employees shall: a) be included in a consolidated list compiled by the Department of Budget and Management. All departments who are recruiting shall give preference to the employees in the fist; and b) continue to receive salary and benefits until December 31, 1987; and c) be guaranteed the release of separation benefits, within 45 days from termination and in no case later than February 15, 1988. 8

We have also seen in these cases instances where the separated employees were re- hired when items suited to their qualifications were available. 9 The traditional misconception on the role of the government as a haven of refuge for the unemployed, the unqualified and the unskilled must cease. If the value reorientation of our people could be effected only through drastic and harsh measures, as the recent government reorganization and streamlining appear to be, so be it. The present government cannot and should not be burdened with excess personnel without special talents whose indiscriminate recruitment into the government service was done under the whim and caprice of a one-man ruler. Melencio-Herrera, J. , dissenting. I reiterate the grounds of my dissent in the Mison and companion cases. Narvasa and Feliciano, JJ., concur.

Separate Opinions FERNAN, C.J., Separate Concurring & Dissenting: I write this separate opinion upon the sad realization that in the final analysis, we may have unwittingly frustrated our people's unmistakable clamor for a complete reorganization of the government. 1 For in ruling as it did in these consolidated cases (As in the Dario cases, G.R. No. 81954, August 8, 1989), the majority has in no uncertain terms set to naught the reorganization efforts not only in the various departments, agencies and offices involved herein, but in the entire bureaucracy. The majority would insist on distinguishing the reorganization process effected under the Freedom Constitution from that which may be undertaken under the 1987 Constitution, with the self-defeating proviso that in the latter case, "civil service eligibles can no longer be removed without cause as they already enjoy the constitutional right to security of tenure. 2 Such fragmented view does not sit well with the law. It does not take into account the various reorganization executive orders issued by the President prior to the ratification of the 1987 Constitution precisely to ensure the continuity of the reorganization process commenced under the Freedom Constitution

and carried over to the 1987 Constitution, or the recognition by the latter constitution itself of the "reorganization following the ratification of this Constitution 3 which, to my mind, cannot but mean the same reorganization contemplated under the Freedom Constitution. Otherwise, the 1987 Constitution would have provided for an automatic hold-over clause as did the 1935 and 1973 Constitutions. Such clause was, however, deemed no longer necessary for the same has been provided under the Freedom Constitution and the various reorganization executive orders. Nor does the interpretation insisted upon by the majority jibe with reality. The reorganization of a department with its numerous bureaus, offices and sections is a major undertaking. It entails intensive management study and audit, personnel evaluation, formulation of new position structures and staffing patterns, budget allocation, etc., which steps necessarily take time to accomplish. With the Court's pronouncement in these cases and the Dario cases, supra, cutting short the reorganization process mandated by the people in the Freedom Constitution to February 2,1987, it is indeed doubtful whether any government department had fully implemented its reorganization program, that is, if it had at all formulated one, considering time constraints. But by herein maintaining the basis of my dissent in the said Dario Cases, supra, that the reorganization pursuant to Proclamation No. 3 continues even after the ratification of the 1987 Constitution, I find myself concurring in the result obtained in G.R. No. 78053. Therein petitioner Francisco L. Mendoza was Schools Division Superintendent in the then Ministry (now Department) of Education, Culture and Sports, with official station at Surigao City. Pursuant to the government reorganization decreed under Art. III of the Freedom Constitution, he was appointed to the same position with the same place of assignment effective June 4,1986. Sometime during the last week of March, 1987, he received, through the Regional Director, Region X, a letter order dated March 19, 1987 signed by respondent Secretary of Education, Culture and Sports Lourdes R. Quisumbing, informing him of his separation from the service effective April 15, 1987. 4 Cited as basis for said personnel action was Executive Order No. 117 approved by President Aquino on January 30, 1987. The arbitrariness in this case is obvious. Even before Executive Order No. 117, the law relied upon by respondent, was enacted on January 30, 1987, the government reorganization mandated under

the Freedom Constitution was already being implemented. In fact, as aforesaid, said executive order as well as the other reorganization executive orders were intended to prolong or extend the period of implementing the reorganization program. Simply put, Executive Order No. 117 was a mere continuation of the government reorganization being implemented at the time of its enactment. Upon these considerations, there can be no plausible explanation why in June, 1986, when the government reorganization was already being implemented, petitioner was deemed qualified to remain in the service, as evidenced by the issuance of an appointment (actually a re-appointment) to him on a permanent status as Schools Division Superintendent, yet barely ten (10) months after, he was suddenly found unfit to continue in office. The questioned personnel action becomes even more perplexing when taken in conjunction with the performance rating of "Very Satisfactory" given to petitioner during the period May, 1986 to April 1987, the very month he was considered separated from the service. 5 I cannot, however, reconcile myself with the alacrity by which the majority would attribute bad faith to the reorganization undertaken by some respondents (particularly the Department of Tourism in G.R. No. 78525) based on standards established by a subsequent law of doubtful constitutionality. 6 The principle is that good faith is presumed while bad faith must be proved. The majority would reverse the rule despite a showing, unrebutted by petitioners in G.R. No. 78525, that all personnel actions were taken on the basis of interviews, evaluation of supervisors, performance and self-appraisal of the employees, as well as recommendations of Civil Service Commissioners, who were chided for not knowing any better "than to participate in a violation of the rules of their agency." 7 Indeed, one is compelled to ask: if you can't rely on the advice of experts, whom can you depend on? The security-of-tenure argument accorded merit by the majority would hold water under ordinary circumstances, but not under the exceptional factual milieu obtaining in the cases at bar. The removal from office of petitioners, respondents in some cases, was the result of the reorganization of the various executive departments undertaken immediately after the installation of the Aquino government, at which time, the people's clamor to promote efficiency and effectiveness in the delivery of public service, rebuild confidence in the entire governmental system and eradicate graft and corruption

therein was at its highest. The need was so grave and serious, so basic and urgent, that nothing less than extra-ordinary measures were called for. In the balancing of interests, as between the very essence of a government as a machinery for the common good and the security of tenure guaranteed by the Constitution to those in government service, one must prevail. Since in our form of government, public offices are public trusts, and the officers are servants of the people and not their rulers, the choice is evident. There is no gainsaying the initial difficulty facing those who were displaced by reason of the sweeping governmental reorganization. The government itself however, has adopted such measures as to "soften the impact" by providing, among others, in its Guidelines on the Implementation of Reorganization Executive Orders that in the event of termination, the employees shall: a) be included in a consolidated list compiled by the Department of Budget and Management. All departments who are recruiting shall give preference to the employees in the fist; and b) continue to receive salary and benefits until December 31, 1987; and c) be guaranteed the release of separation benefits, within 45 days from termination and in no case later than February 15, 1988. 8 We have also seen in these cases instances where the separated employees were re- hired when items suited to their qualifications were available. 9 The traditional misconception on the role of the government as a haven of refuge for the unemployed, the unqualified and the unskilled must cease. If the value reorientation of our people could be effected only through drastic and harsh measures, as the recent government reorganization and streamlining appear to be, so be it. The present government cannot and should not be burdened with excess personnel without special talents whose indiscriminate recruitment into the government service was done under the whim and caprice of a one-man ruler. Melencio-Herrera, J., dissenting. I reiterate the grounds of my dissent in the Mison and companion cases. Narvasa and Feliciano, JJ., concur.

Footnotes 1 Preamble and Article II, Section I (a), Proclamation No. 3, March 25,1986. 2 p. 50, Decision. 3 Section 16, Art. XVIII. 4 Exh. "B", Petition, p. 12, Rollo in G.R. No. 78053. 5 Exh. "C', Reply, p. 85, Rollo in G.R. No. 78053. 6 R.A. 6656. 7 p. 47, Decision. 8 par. 3. 9 e.g. G.R. No. 81197 Dolores Garcia, et al. vs. Hon. Teodoro C. Benigno, et al. and G.R. No. 89427 Conrado Villasor vs. Hon. Alfredo R.A. Bengzon.

Notes:

The Provincial Government of Camarines Norte vs. Gonzales EN BANC G.R. No. 185740 July 23, 2013 DECISION BRION, J.: We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines Norte’s provincial administrator, or to an equivalent position. Factual Antecedents Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in writing why no administrative charges should be filed against her for gross insubordination/gross discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her, and recommended to Governor Pimentel that she be held administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and dismissed Gonzales.5 Proceedings before the Civil Service Commission Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending her for six months. This decision was appealed by Governor Pimentel, which the CSC denied in its Resolution No. 001952.7 Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed that she had already served her six-month suspension and asked to be reinstated. The CSC issued Resolution No. 002245,8 which directed Gonzales’ reinstatement. Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her services the next day for lack of

confidence. He then wrote a letter9 to the CSC reporting his compliance with its order, and Gonzales’ subsequent dismissal as a confidential employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where the CSC ruled that the provincial administrator position is highly confidential and is coterminous in nature. The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement as provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. RA 7160) made the provincial administrator position coterminous and highly confidential in nature, this conversion cannot operate to prejudice officials who were already issued permanent appointments as administrators prior to the new law’s effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent appointment as provincial administrator and is entitled to continue holding this office despite its subsequent classification as a coterminous position. The conversion of the provincial administrator position from a career to a non-career service should not jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and confidence is not among the grounds for a permanent appointee’s dismissal or discipline under existing laws. In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the provincial administrator position, or to an equivalent position.Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution No. 061988. The Appellate Court’s Ruling The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an equivalent position.14 Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his position once he assumes a position in the civil service under a completed appointment. This legal right is protected both by statute and the Constitution, and he cannot be removed from office without cause and previous notice and

hearing. Appointees cannot be removed at the mere will of those vested with the power of removal, or without any cause. The CA then enumerated the list of valid causes for a public officer’s removal under Section 46,16 Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was not in the list. Thus, the CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated her security of tenure, and that she has the right to be reinstated with payment of backwages. The CA further held that Gonzales’ dismissal was illegal because it was done without due process. The proceedings under Administrative Case No. 001 cannot be the basis for complying with the requirements of due process because they are separate and distinct from the proceedings in the present controversy. Thus, Gonzales was illegally terminated when she was dismissed for lack of confidence, without any hearing, the day after she was reinstated. Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has long been final and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245, and hence, it is no longer alterable. The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18 dated December 2, 2008. The Present Petition In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer enjoyed security of tenure to the position she held prior to RA 7160’s enactment. In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a career service position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial administrator as a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the Administrative Code. This classification, established by law and jurisprudence, cannot be altered by the mere implementing rules and regulations of RA 7160. And assuming arguendo that the provincial administrator position has indeed become a primarily confidential position, this reclassification should not apply retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s effectivity.

Issues The parties’ arguments, properly joined, present to us the following issues: 1) Whether Congress has re-classified the provincial administrator position from a career service to a primarily confidential, non-career service position; and 2) Whether Gonzales has security of tenure over her position as provincial administrator of the Province of Camarines Norte. The Court’s Ruling We find the petition meritorious. Congress has reclassified the provincial administrator position as a primarily confidential, non-career position We support the CSC’s conclusion that the provincial administrator position has been classified into a primarily confidential, non-career position when Congress, through RA 7160, made substantial changes to it. First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial administrator position among the listing of mandatory provincial officials,24 but empowered the Sangguniang Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation of the provincial administrator position under the old LGC used to be a prerogative of the Sangguniang Panlalawigan. Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the requirement of civil service eligibility for a provincial administrator, together with the educational requirements, it shortened the six-year work experience requirement to five years.28 It also mandated the additional requirements of residence in the local government concerned, and imposed a good moral character requirement. Third, RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying it as a noncareer service position that is primarily confidential. Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position which required qualification in an appropriate examination prior to appointment. Laurel placed the provincial administrator position under the second

major level of positions in the career service under Section 7 of Presidential Decree No. 807. This provision reads: Section 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: xxxx 2. The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level. Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing provincial administration by identifying the incumbent with the provincial governor to ensure the alignment of the governor’s direction for the province with what the provincial administrator would implement. In contrast with the general direction provided by the provincial governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160 now mandates constant interaction between the provincial administrator and the provincial governor, to wit: (b) The administrator shall take charge of the office of the administrator and shall: (1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement the same particularly those which have to do with the management and administration-related programs and projects which the governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code; (2) In addition to the foregoing duties and functions, the administrator shall: (i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision, direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of the local government unit; xxxx (4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters relative to the management and administration of the local government unit. [emphases and italics ours]

As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate relationship with the office of the governor (its appointing authority) to effectively develop, implement and administer the different programs of the province. The administrator’s functions are to recommend to the Sanggunian and to advise the governor on all matters regarding the management and administration of the province, thus requiring that its occupant enjoy the governor’s full trust and confidence. To emphasize the close relations that the provincial administrators’ functions have with the office of the governor, RA 7160 even made the provincial administrator position coterminous with its appointing authority.30 This provision, along with the interrelations between the provincial administrator and governor under Section 480, renders clear the intent of Congress to make the provincial administrator position primarily confidential under the non-career service category of the civil service. Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative power that does not violate Gonzales’ security of tenure Having established that Congress has changed the nature of the provincial administrator position to a primarily confidential employee, the next question to address would be its impact on Gonzales’ security of tenure. According to the petitioner, Gonzales lost her security of tenure when the provincial administrator position became a primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the position should not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium to Gonzales’ original permanent appointment under the old LGC. They posit that Gonzales acquired a vested legal right over her position from the moment she assumed her duties as provincial administrator. Thus, she cannot be removed from office except for cause and after due hearing; otherwise such removal would amount to a violation of her security of tenure. The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between the nature of the position and an employee’s right to hold a position. These two concepts are different. The nature of a position may change by law according to the dictates of Congress. The right to hold a position, on the other

hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to the nature of the position. Congress has the power and prerogative to introduce substantial changes in the provincial administrator position and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative power to create public offices is the power to abolish and modify them to meet the demands of society;31 Congress can change the qualifications for and shorten the term of existing statutory offices. When done in good faith, these acts would not violate a public officer’s security of tenure, even if they result in his removal from office or the shortening of his term.32 Modifications in public office, such as changes in qualifications or shortening of its tenure, are made in good faith so long as they are aimed at the office and not at the incumbent.33 In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board members at the time RA 546 took effect, filed a special civil action for quo warranto against their replacements, arguing that their term of office under the old law had not yet expired, and neither had they abandoned or been removed from office for cause. We dismissed their petition, and held that Congress may, by law, terminate the term of a public office at any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio were removed for cause or had abandoned their office is immaterial. More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent appointee to the Executive Director II position, which was not part of the career executive service at the time of her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1, classified the Executive Director II position to be within the career executive service. Since Dimayuga was not a career executive service officer, her initially permanent appointment to the position became temporary; thus, she could be removed from office at any time. In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but significantly modified many of its aspects. It is now a primarily confidential position under the non-

career service tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she was not the only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was part of the reform measures that RA 7160 introduced to further empower local governments and decentralize the delivery of public service. Section 3(b) of RA 7160 provides as one of its operative principles that: (b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities. Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA 7160 is immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales’ termination violated her right to security of tenure, the nature of the position she occupied at the time of her removal should be considered, and not merely the nature of her appointment at the time she entered government service. In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of tenure protects the permanent appointment of a public officer, despite subsequent changes in the nature of his position. Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a permanent employee remains a permanent employee unless he is validly terminated," and from there attempts to draw an analogy between Gabriel and the case at hand. The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue in Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed government employee, who was later ordered reinstated. From this sentence alone can be discerned that the issues involved related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabrielwas there any mention of a change in the nature of the position held by the public officer involved. Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that

the reason for his eventual appointment as a casual employee, which led to his termination from service, was due to a pending protest he filed before the CSC – indicating that there was no ground for him to not receive the appointment earlier promised. In contrast, the issue of Gonzales is whether the appointing authority’s lack of trust and confidence in the appointee was sufficient cause for the termination of employment of a primarily confidential employee. And third, there was a change in the position held by the public officer in Gabriel. He was a permanent employee who was extended a different appointment, which was casual in nature, because of a protest that he earlier filed. In contrast, the current case involves a public officer who held the same position whose nature changed because of the passage of RA 7160. The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support its contention that permanent appointees could expect protection for their tenure and appointments in the event that the Court determines that the position is actually confidential in nature: The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.38 The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate secretaries in government-owned and – controlled corporations cannot expect protection for their tenure and appointments upon the reclassification of their position to a primarily confidential position. There, the Court emphasized that these officers cannot rely on the statutes providing for their permanent

appointments, if and when the Court determines these to be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent, we even pointed out that there is no vested right to public office, nor is public service a property right. Thus: Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, as public service is not a property right. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in government, except those created by the constitution, may be abolished, altered, or created anytime by statute. And any issues on the classification for a position in government may be brought to and determined by the courts.40 (emphases and italics ours) Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator position on a permanent capacity In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the dissenting opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the termination of government employees affected by the implementation of RA 7160. According to the dissenting opinion, EO 503 is an obvious indication of the executive department’s intent to protect and uphold both the national government and the local government employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an administrator) to prove its point: 8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their positions. At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their permanent appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the local government affected by RA 7160’s enactment. The title of EO 503 clearly provides for its scope of application, to wit: Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies whose Functions are to

be Devolved to the Local Government Units and for other Related Purposes. [underscore, italics and emphases ours] A reading of EO 503’s whereas clauses confirms that it applies only to national government employees whose functions are to be devolved to local governments: WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services and facilities from the national government agencies (NGAs) concerned to the local government units (LGUs); WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services and facilities; WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel concerned and assets to the LGUs. [underscores, italics and emphases ours] Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is clearly not a national government position whose functions are to be devolved to the local governments. The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government employees only. According to the dissent, the phrase "and for related purposes" in EO 503’s title could encompass personnel not necessarily employed by national government agencies but by local government units such as the administrator, the legal officer and the information officer, as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial administrator would automatically become coterminous with that of the appointing authority upon RA 7160’s effectivity. This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide for. The phrase "and for other related purposes" can only add to EO 503 matters related to the devolution of personnel, basic services and facilities to local government units. The impact of the change in a local government position’s nature is clearly different from the implementation of devolution and its

ancillary effects: the former involves a change in a local government position’s functions and concept of tenure, while the latter involves (among other things) the transfer of national government employees to local government units. This difference is highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160. In contrast, the change in the nature of the provincial administrator position may be gleaned from Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for other related purposes" in EO 503’s title be understood to encompass the consequences of the change in the local government position’s nature. Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President’s ordinance powers to provide for rules that are general or permanent in character for the purpose of implementing the President’s constitutional or statutory powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the personnel of national agencies whose functions shall be devolved to them.42 This is reflected in EO 503’s title and whereas clauses, and its limited application as discussed earlier. Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the Executive usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the clear language and intent of RA 7160 to make the position coterminous, is an act outside the President’s legitimate powers. The power to create, abolish and modify public offices is lodged with Congress.43 The President cannot, through an Executive Order, grant permanent status to incumbents, when Congress by law has declared that the positions they occupy are now confidential. Such act would amount to the President’s amendment of an act of Congress – an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of powers, a constitutionally enshrined principle that the Court has the duty to uphold.44 The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal presumption of validity.

Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands. The EO’s validity, however, is not in question in the present case. What is at issue is a proper interpretation of its application giving due respect to the principle of separation of powers, and the dissenting opinion’s interpretation does violence to this principle. Gonzales has security of tenure, but only as a primarily confidential employee To be sure, both career and non-career service employees have a right to security of tenure.1âwphi1 All permanent officers and employees in the civil service, regardless of whether they belong to the career or non-career service category, are entitled to this guaranty; they cannot be removed from office except for cause provided by law and after procedural due process.45 The concept of security of tenure, however, labors under a variation for primarily confidential employees due to the basic concept of a "primarily confidential" position. Serving at the confidence of the appointing authority, the primarily confidential employee’s term of office expires when the appointing authority loses trust in the employee. When this happens, the confidential employee is not "removed" or "dismissed" from office; his term merely "expires"46 and the loss of trust and confidence is the "just cause" provided by law that results in the termination of employment. In the present case where the trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion when he decided that he could no longer entrust his confidence in Gonzales. Security of tenure in public office simply means that a public officer or employee shall not be suspended or dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right to public office despite a change in the nature of the office held. In other words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’ right to security of tenure when she was removed without sufficient just cause from her position, but the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her services were subsequently terminated under the law prevailing at the time of the termination of her service; i.e., she was then already occupying a position that was primarily confidential and had to be dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus, Gonzales’ termination for lack of

confidence was lawful. She could no longer be reinstated as provincial administrator of Camarines Norte or to any other comparable position. This conclusion, however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and future employment in government service. WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CAG.R. SP No. 97425. SO ORDERED. ARTURO D. BRION Associate Justice WE CONCUR: I join J. Del Castillo MARIA LOURDES P. A. SERENO Chief Justice ANTONIO T. CARPIO Associate Justice I join the opinion of J.M. Del Castillo PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice LUCAS P. BERSAMIN Associate Justice Please see concurring and dissenting opinion. MARIANO C. DEL CASTILLO Associate Justice I join the concurring and dissenting opinion of J. Del Castillo ROBERTO A. ABAD Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE PORTUGAL PEREZ Associate Justice JOSE CATRAL MENDOZA Associate Justice

BIENVENIDO L. REYES Associate Justice ESTELA M. PERLAS-BERNABE Associate Justice MARVIC MARIO VICTOR F. LEONEN Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. MARIA LOURDES P. A. SERENO Chief Justice Footnotes 1

Rollo, pp. 18-27; under Rule 45 of the Rule of Court. Id. at 32-44; penned by Associate Justice Marlene Gonzales-Sison, and concurred in by Associate Justices Amelita G. Tolentino and Lucenito N. Tagle. 3 Id. at 50-51. 4 Id. at 32-33. 5 Id. at 59-65. 6 Id. at 66-77. 7 Id. at 33. 8 Id. at 78-81. 9 Id. at 83-84. 10 Reyes, Carmencita O., Re: Appointment; Provincial Administrator. 11 Rollo, pp. 85-88. 12 Id. at 90. 13 Id. at 90-97. 14 Id. at 32-44. 15 G.R. No. 92403, April 22, 1992, 208 SCRA 240. 16 SECTION 46. Discipline: General Provisions. — (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: (1) Dishonesty; 2

(2) Oppression; (3) Neglect of duty; (4) Misconduct; (5) Disgraceful and immoral conduct; (6) Being notoriously undesirable; (7) Discourtesy in the course of official duties; (8) Inefficiency and incompetence in the performance of official duties; (9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws; (10) Conviction of a crime involving moral turpitude; (11) Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children; (12) Violation of existing Civil Service Law and rules or reasonable office regulations; (13) Falsification of official document; (14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent unauthorized absences from duty during regular office hours; (15) Habitual drunkenness; (16) Gambling prohibited by law; (17) Refusal to perform official duty or render overtime service; (18) Disgraceful, immoral or dishonest conduct prior to entering the service; (19) Physical or mental incapacity or disability due to immoral or vicious habits; (20) Borrowing money by superior officers from subordinates or lending by subordinates to superior officers;

(21) Lending money at usurious rates of interest; (22) Willful failure to pay just debts or willful failure to pay taxes due to the government; (23) Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations; (24) Pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations; (25) Insubordination; (26) Engaging directly or indirectly in partisan political activities by one holding a nonpolitical office; (27) Conduct prejudicial to the best interest of the service; (28) Lobbying for personal interest or gain in legislative halls or offices without authority; (29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority; (30) Nepotism as defined in Section 60 of this Title. 17 Rollo, pp. 45-49. 18 Supra note 3. 19 Id. at 122-132. 20 Id. at 151-170. 21 Section 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major level as follows: 1. The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

2. The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and 3. The third level shall cover positions in the Career Executive Service. (b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in the lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board. (c) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the examination for that level. 22 G.R. No. 71562, October 28, 1991, 203 SCRA 195. 23 SECTION 7. Career Service.—The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the noncareer service; and (7) Permanent laborers, whether skilled, semiskilled, or unskilled. 24 Section 199. Officials of the Provincial Government. (1) There shall be in each province a governor, a vice-governor, members of the sangguniang panlalawigan, a provincial secretary, a provincial treasurer, a provincial assessor, a provincial budget officer, a provincial engineer, a provincial agriculturist and a provincial planning and development coordinator. 25 Section 199. x x x xxxx (3) The sangguniang panlalawigan may maintain existing offices not mentioned in paragraph (1) of [this] section, or create such other offices as may be necessary to carry out the purposes of the provincial government, or may consolidate the functions of any one of such offices with those of another in the interest of efficiency and economy. 26 Section 463. Officials of the Provincial Government.

(a) There shall be in each province a governor, a vice-governor, members of the sangguniang panlalawigan, a secretary to the sangguniang panlalawigan, a provincial treasurer, a provincial assessor, x x x a provincial planning and development coordinator, a provincial legal officer, a provincial administrator. [italics and emphasis ours] 27 Section 480. Qualifications, Terms, Powers and Duties. (a) No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or its equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of the municipal administrator. 28 Citing the Manual of Position Descriptions, the Court in Laurel V v. Civil Service Commission, supra note 22, at 204, noted that the provincial administrator position has the following requirements: Education: Bachelor's degree preferably in Law/Public or Business Administration. Experience: Six years of progressively responsible experience in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less familiar level of administrative proficiency. Eligibility: RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor. 29 Reyes, Carmencita O., Re: Appointment; Provincial Administrator. 30 Section 480, RA 7160; Article 119 of the Implementing Rules and Regulations of RA 7160 provides:

ARTICLE 119. Appointment of Appointive Local Officials. — (a) Unless otherwise provided in this Rule, heads of offices and departments in the LGUs shall be appointed by the local chief executive concerned with the concurrence of a majority of all the members of the sanggunian, subject to civil service laws, rules and regulations. (b) The sanggunian concerned shall act on the appointment within fifteen (15) days from the date of its submission; otherwise, the same shall be deemed confirmed. (c) The term of office of the local administrator, local legal officer, and local information officer is coterminous with that of their appointing authority. 31 The creation and abolition of public offices are primarily legislative functions. It is acknowledged that Congress may abolish any office it creates without impairing the officer's right to continue in the position held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees (Canonizado v. Hon. Aguirre, 380 Phil. 280, 286 [2000]). See also The Law on Public Officers and Election Law, Hector S. de Leon, p. 336. 32 See Salcedo and Ignacio v. Carpio and Carreon, 89 Phil. 254 (1951); and Eraña v. Vergel de Dios, 85 Phil. 17 (1949). 33 The Law on Public Officers and Election Law, Hector S. de Leon, p. 336. 34 Supra note 32. 35 424 Phil. 707 (2002). 36 G.R. No. 87420, September 17, 1990, 189 SCRA 672, 676. 37 570 Phil. 89 (2008). 38 Id. at 113. 39 Supra note 37. 40 Id. at 113-114; citations omitted. 41 Section 2, Chapter 2, Title I of the Administrative Code.

42

(i) The devolution contemplated in this Code shall include the transfer to local government units of the records, equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions, and responsibilities. Personnel of said national agencies or offices shall be absorbed by the local government units to which they belong or in whose areas they are assigned to the extent that it is administratively viable as determined by the said oversight committee: Provided, That the rights accorded to such personnel pursuant to civil service law, rules and regulations shall not be impaired: Provided, further, That regional directors who are career executive service officers and other officers of similar rank in the said regional offices who cannot be absorbed by the local government unit shall be retained by the national government, without any diminution of rank, salary or tenure. 43 Canonizado v. Hon. Aguirre, supra note 31. 44 But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. x x x In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. (Angara v. Electoral Commission, 63 Phil. 139, 157 [1936].) 45 Jocom v. Judge Regalado, 278 Phil. 83, 94 (1991), citing Tapales v. President and Board of Regents of the University of the Philippines, 117 Phil. 561 (1963). 46 Ingles v. Mutuc, 135 Phil. 177, 182 (1968)

Notes:

Fernandez vs. Sto. Tomas EN BANC G.R. No. 116418 March 7, 1995 FELICIANO, J.: In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a Temporary Restraining Order, petitioners Salvador C. Fernandez and Anicia M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission ("Commission") and the authority of the Commission to issue the same. Petitioner Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA") while petitioner de Lima was serving as Director of the Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service Commission in Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No. 94-3710 signed by public respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the Commission, was issued on 7 June 1994.1 Resolution No. 94-3710 needs to be quoted in full: RESOLUTION NO. 94-3710 WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". . . as an independent constitutional body, the Commission may effect changes in the organization as the need arises;" WHEREAS, the Commission finds it imperative to effect changes in the organization to streamline its operations and improve delivery of public service; WHEREAS, the Commission finds it necessary to immediately effect changes in the organization of the Central Offices in view of the need to implement new programs in lieu of those functions which were transferred to the Regional Offices; WHEREFORE, foregoing premises considered, the Commission hereby RESOLVES to effect the following changes in its organization, specifically in the Central Offices: 1. The OCSS [Office of Career Systems and Standards], OPIA [Office of Personnel Inspection and Audit] and OPR [Office of Personnel Relations]

are merged to form the Research and Development Office (RDO). 2. The Office for Human Resource Development (OHRD) is renamed Human Resource Development Office (HRDO). 3. The following functions and the personnel assigned to the unit performing said functions are hereby transferred to HRDO: a. Administration of the Honor and Awards program under OCSS; b. Registration and Accreditation of Unions under OPR; and c. Accreditation of Agencies to take final action on appointments under OPIA. 4. The Office for Central Personnel Records (OCPR) is renamed Management Information Office (MIO). 5. The Information technology functions of OPM and the personnel assigned to the unit are transferred to MIO. 6. The following functions of OPM and the personnel assigned to the unit performing said functions are hereby transferred to the Office of the Executive Director: a. Financial Audit and Evaluation; b. Internal Management and Improvement; c. Research and Statistics; and d. Planning and Programming. 7. The library service and its personnel under OCPR are transferred to the Central Administrative Office. 8. The budget allocated for the various functions shall be transferred to the Offices where the functions are transferred. Records, fixtures and equipment that go with the functions shall be moved to where the functions are transferred. Annex A contains the manning list for all the offices, except the OCES.

The changes in the organization and in operations shall take place before end of July 1994. Done in Quezon City, July 07, 1994. (Signed) Patricia A. Sto. Tomas Chairman (Signed) Did not participate Ramon P. Ereneta, Jr., Thelma P. Gaminde Commissioner Commissioner Attested by: (Signed) Carmencita Giselle B. Dayson Board Secretary V 2 During the general assembly of officers and employees of the Commission held in the morning of 28 July 1994, Chairman Sto. Tomas, when apprised of objections of petitioners, expressed the determination of the Commission to implement Resolution No. 943710 unless restrained by higher authority. Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Court required public respondents to file a Comment on the Petition. On 21 September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order, alleging that petitioners had received Office Orders from the Commission assigning petitioner Fernandez to Region V at Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga and praying that public respondents be restrained from enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994, granted this Motion and issued the Temporary Restraining Order prayed for by petitioners. The Commission filed its own Comment, dated 12 September 1994, on the Petition and then moved to lift the Temporary Restraining Order. The Office of the Solicitor General filed a separate Comment dated 28 November 1994, defending the validity of Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separate Replies to these Comments. The Commission in turn filed a Rejoinder (denominated "Comment [on] the Reply"). The principal issues raised in this Petition are the following: (1) Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of Career

Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office]; and (2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure. I. The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and organization of the Commission in the following terms: Sec. 16. Offices in the Commission — The Commission shall have the following offices: (1) The Office of the Executive Director — . . . (2) The Merit System Protection Board — . . . (3) The Office of Legal Affairs — . . . (4) The Office of Planning and Management — . . . (5) The Central Administrative Office — . . . (6) The Office of Central Personnel Records — . . . (7) The Office of Position Classification and Compensation — . . . (8) The Office of Recruitment, Examination and Placement — . . . (9) The Office of Career Systems and Standards shall provide leadership and assistance in the formulation and evaluation of personnel systems and standards relative to performance appraisal, merit promotion and employee incentive benefits and awards. (10) The Office of Human Resource Development —... (11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for the effective conduct of inspection and audit of personnel and personnel management programs and the exercise of delegated authority; provide technical and advisory services to Civil Service Regional Offices and government agencies in the implementation of their personnel programs and evaluation systems.

(12) The Office of Personnel Relations shall provide leadership and assistance in the development and implementation of policies, standards, rules and regulations governing corporate officials and employees in the areas of recruitment, examination, placement, career development, merit and awards systems, position classification and compensation, performance appraisal, employee welfare and benefits, discipline and other aspects of personnel management on the basis of comparable industry practices. (13) The Office of the Corporate Affairs — . . . (14) The Office of Retirement Administration — . . . (15) The Regional and Field Offices. — . . . (Emphases in the original) Immediately after the foregoing listing of offices of the Commission and their respective functions, the 1987 Revised Administrative Code goes on to provide as follows: Sec. 17. Organizational Structure. — Each office of the Commission shall be headed by a Director with at least one (1) Assistant Director, and may have such divisions as are necessary to carry out their respective functions. As an independent constitutional body, the Commission may effect chances in the organization as the need arises. xxx xxx xxx 3 (Emphasis supplied) Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and OPR, and as well each of the other Offices listed in Section 16 above, consist of aggregations of Divisions, each of which Divisions is in turn a grouping of Sections. Each Section, Division and Office comprises a group of positions within the agency called the Civil Service Commission, each group being entrusted with a more or less definable function or functions. These functions are related to one another, each of them being embraced by a common or general subject matter. Clearly, each Office is an internal department or organizational unit within the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the other Offices within the Commission constitute administrative subdivisions of the CSC. Put a

little differently, these offices relate to the internal structure of the Commission. What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No. 94-3710 shows that thereby the Commission re-arranged some of the administrative units (i.e., Offices) within the Commission and, among other things, merged three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the "Research and Development Office (RDO)." The same Resolution renamed some of the Offices of the Commission, e.g., the Office for Human Resource Development (OHRD) was renamed Human Resource Development Office (HRDO); the Office for Central Personnel Records (OCPR) was renamed Management Information Office (MIO). The Commission also re-allocated certain functions moving some functions from one Office to another; e.g., the information technology function of OPM (Office of Planning and Management) was transferred to the newly named Management Information Office (MIO). This re-allocation or re-assignment of some functions carried with it the transfer of the budget earmarked for such function to the Office where the function was transferred. Moreover, the personnel, records, fixtures and equipment that were devoted to the carrying out of such functions were moved to the Offices to where the functions were transferred. The objectives sought by the Commission in enacting Resolution No. 94-3710 were described in that Resolution in broad terms as "effect[ing] changes in the organization to streamline [the Commission's] operations and improve delivery of service." These changes in internal organization were rendered necessary by, on the one hand, the decentralization and devolution of the Commission's functions effected by the creation of fourteen (14) Regional Offices and ninety-five (95) Field Offices of the Commission throughout the country, to the end that the Commission and its staff may be brought closer physically to the government employees that they are mandated to serve. In the past, its functions had been centralized in the Head Office of the Commission in Metropolitan Manila and Civil Service employees all over the country were compelled to come to Manila for the carrying out of personnel transactions. Upon the other hand, the dispersal of the functions of the Commission to the Regional Offices and the Field Offices attached to various governmental agencies throughout the country makes possible the

implementation of new programs of the Commission at its Central Office in Metropolitan Manila. The Commission's Office Order assigning petitioner de Lima to the CSC Regional Office No. 3 was precipitated by the incumbent Regional Director filing an application for retirement, thus generating a need to find a replacement for him. Petitioner de Lima was being assigned to that Regional Office while the incumbent Regional Director was still there to facilitate her take over of the duties and functions of the incumbent Director. Petitioner de Lima's prior experience as a labor lawyer was also a factor in her assignment to Regional Office No. 3 where public sector unions have been very active. Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had, upon the other hand, been necessitated by the fact that the then incumbent Director in Region V was under investigation and needed to be transferred immediately to the Central Office. Petitioner Fernandez was deemed the most likely designee for Director of Regional Office No. 5 considering that the functions previously assigned to him had been substantially devolved to the Regional Offices such that his reassignment to a Regional Office would result in the least disruption of the operations of the Central Office.4 It thus appears to the Court that the Commission was moved by quite legitimate considerations of administrative efficiency and convenience in promulgating and implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C. Fernandez to the Regional Office of the Commission in Region V in Legaspi City and petitioner Anicia M. de Lima to the Commission's Regional Office in Region III in San Fernando, Pampanga. It is also clear to the Court that the changes introduced and formalized through Resolution No. 94-3710 — re-naming of existing Offices; rearrangement of the groupings of Divisions and Sections composing particular Offices; re-allocation of existing functions (and related personnel; budget, etc.) among the re-arranged Offices — are precisely the kind of internal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative Code), quoted above, as "chances in the organization" of the Commission. Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something which may be done only by the same legislative authority which had created those public offices in the first place.

The Court is unable, in the circumstances of this case, to accept this argument. The term "public office" is frequently used to refer to 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 government, to be exercised by that individual for the benefit of the public.5 We consider that Resolution No. 943710 has not abolished any public office as that term is used in the law of public officers.6 It is essential to note that none of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public employment between the Commission and any of its officers and employees. We find it very difficult to suppose that the 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, meant to freeze those Offices and to cast in concrete, as it were, the internal organization of the commission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," as the need [for such changes] arises." 7 Assuming, for purposes of argument merely, that legislative authority was necessary to carry out the kinds off changes contemplated in Resolution No. 94-3710 (and the Court is not saying that such authority is necessary), such legislative authority was validly delegated to the Commission by Section 17 earlier quoted. The legislative standards to be observed and respected in the exercise of such delegated authority are set out not only in Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code which required the Civil Service Commission as the central personnel agency of the Government [to] establish a career service, adopt measures to promote — efficiency — [and] responsiveness . . . in the civil service . . . and that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed. (Emphasis supplied)

II. We turn to the second claim of petitioners that their right to security of tenure was breached by the respondents in promulgating Resolution No. 94-3710 and ordering petitioners' assignment to the Commission's Regional Offices in Regions III and V. Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or employee of the Civil Service shall be removed or suspended except for cause provided by law." Petitioners in effect contend that they were unlawfully removed from their positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and that they cannot, without their consent, be moved out to the Regional Offices of the Commission. We note, firstly, that appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. Thus, a person may be appointed to the position of Director III or Director IV; or to the position of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II; and so forth. In the instant case, petitioners were each appointed to the position of Director IV, without specification of any particular office or station. The same is true with respect to the other persons holding the same position or rank of Director IV of the Commission. Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service: Sec. 26. Personnel Actions. — . . . xxx xxx xxx As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be known as personnel action. Such action shall include appointment through certification, promotion, transfer, re-instatement, reemployment, detail, reassignment, demotion, and separation. All personnel actions shall be in accordance with such rules, standards, and regulations as may be promulgated by the Commission. xxx xxx xxx

(7) Reassignment. An employee may be reassigned from one organizational unit to another in the same agency, Provided, That such reassignment shall not involve a reduction in rank status and salary. (Emphasis supplied) It follows that the reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR, respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan Manila and their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been effected with express statutory authority and did not constitute removals without lawful cause. It also follows that such reassignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other words, acquired a vested right to serve at the Commission's Head Office. Secondly, the above conclusion is compelled not only by the statutory provisions relevant in the instant case, but also by a long line of cases decided by this Court in respect of different agencies or offices of government. In one of the more recent of these cases, Department of Education Culture and Sports, etc., et al. v. Court of Appeals, et al.,8 this Court held that a person who had been appointed as "Secondary School Principal II" in the Division of City Schools, District II, Quezon City, National Capital Region, and who had been stationed as High School Principal in the Carlos Albert High School in Quezon for a number of years, could lawfully be reassigned or transferred to the Manuel Roxas High School, also in Quezon City, without demotion in rank or diminution of salry. This Court held: The aforequoted provision of Republic Act No. 4670 particularly Section 6 thereof which provides that except for cause and in the exigencies of the service no teacher shall be transferred without his consent from one station to another, finds no application in the case at bar as this is predicated upon the theory that the teacher concerned is

appointed — not merely assigned — to a particular station. Thus: The rule pursued by plaintiff only goes so far as the appointed indicates a specification. Otherwise, the constitutionally ordained security of tenure cannot shield her. In appointments of this nature, this Court has consistently rejected the officer's demand to remain — even as public service dictates that a transfer be made — in a particular station. Judicial attitude toward transfers of this nature is expressed in the following statement in Ibañez, et al. vs. Commission on Elections, et al. (G.R. No. L-26558, April 27, 1967; 19 SCRA 1002 [1967]); That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service System, is not open to debate. The mantle of its protection extends not only against removals without cause but also against unconsented transfer which, as repeatedly enunciatEd, are tantamount to removals which are within the ambit of the fundamental guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon the nature of the appointment (Hojilla vs. Marino, 121 Phil. 280 [1965].) Such that the rule which proscribes transfers without consent as

anathema to the security of tenure is predicated upon the theory that the officer involved is appointed — not merely assigned — to a particular station (Miclat v. Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon. Valencia, et al., 118 Phil. 728 [1963]). [Brillantes v. Guevarra, 27 SCRA 138 (1969)] The appointment of Navarro as principal does not refer to any particular station or school. As such, she could be assigned to any station and she is not entitled to stay permanently at any specific school. (Bongbong v. Parado, 57 SCRA 623) When she was assigned to the Carlos Albert High School, it could not have been with the intention to let her stay in said school permanently. Otherwise, her appointment would have so stated. Consequently, she may be assigned to any station or school in Quezon City as the exigencies of public service require even without consent. As this Court ruled in Brillantes v. Guevarra, 27 SCRA 138, 143 — Plaintiff's confident stride falters. She took too loose a view of the applicable jurisprudence. Her refuge behind the mantle of security of tenure guaranteed by the Constitution is not impenetrable. She proceeds upon the assumption that she occupies her station in Sinalang Elementary School by appointment. But her first appointment as Principal merely reads thus: "You are hereby appointed a Principal (Elementary School) in the Bureau of Public Schools, Department of Education", without mentioning her station. She cannot therefore claim

security of tenure as Principal of Sinalang Elementary School or any particular station. She may be assigned to any station as exigency of public service requires, even without her consent. She thus has no right of choice.9 (Emphasis supplied; citation omitted) In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et a1., 10 the Court addressed appointments of petitioners as "Mediators-Arbiters in the National Capital Region" in dismissing a challenge on certiorari to resolutions of the CSC and orders of the Secretary of Labor. The Court said: Petitioners were appointed as Mediator Arbiters in the National Capital Region. They were not, however, appointed to a specific station or particular unit of the Department of Labor in the National Capital Region (DOLE-NCR). Consequently, they can always be reassigned from one organizational unit to another of the same agency where, in the opinion of respondent Secretary, their services may be used more effectively. As such they can neither claim a vested right to the station to which they were assigned nor to security of tenure thereat. As correctly observed by the Solicitor General, petitioners' reassignment is not a transfer for they were not removed from their position as medarbiters. They were not given new appointments to new positions. It indubitably follows, therefore, that Memorandum Order No. 4 ordering their reassignment in the interest of the service is legally in order.11 (Emphases supplied) In Quisumbing v. Gumban, 12 the Court, dealing with an appointment in the Bureau of Public Schools of the Department of Education, Culture and Sports, ruled as follows: After a careful scrutiny of the records, it is to be underscored that the appointment of private respondent Yap is simply that of a District

Supervisor of the Bureau of Public Schools which does not indicate a specific station (Rollo, p. 13). A such, she could be assigned to any station and she is no entitled to stay permanently at any specific station (Bongbong v. Parado, 57 SCRA 623 [1974]; Department of Education, Culture and Sports v. Court of Appeals [G.R. 81032, March 22, 1990] citing Brillantes v. Guevarra [27 SCRA 138 [1969]). 13

Again, in Ibañez v. Commission on Elections, 14 the Court had before it petitioners' appointments as "Election Registrars in the Commission of Elections," without any intimation to what city, municipality or municipal district they had been appointed as such. 15 The Court held that since petitioners "were not appointed to, and consequently not entitled to any security of tenure or permanence in, any specific station," "on general principles, they [could] be transferred as the exigencies of the service required," and that they had no right to complain against any change in assignment. The Court further held that assignment to a particular station after issuance of the appointment was not necessary to complete such appointment: . . . . We cannot subscribe to the theory that an assignment to a particular station, in the light of the terms of the appointments in question, was necessary to complete the said appointments. The approval thereof by the Commissioner of Civil Service gave those appointments the stamp of finality. With the view that the respondent Commission then took of its power in the premises and the demand of the mission it set out to accomplish with the appointments it extended, said appointments were definitely meant to be complete as then issued. The subsequent assignment of the appointees thereunder that the said respondent Commission held in reserve to be exercised as the needs of each locality justified did not in any way detract from the perfection attained by the appointments beforehand. And the respective appointees were entitled only to such security of tenure as the appointment papers concerned actually conferred — not in that of any place to

which they may have been subsequently assigned. . . . As things stand, in default of any particular station stated in their respective appointments, no security of tenure can be asserted by the petitioners on the basis of the mere assignments which were given to them. A contrary rule will erase altogether the demarcation line we have repeatedly drawn between appointment and assignment as two distinct concepts in the law of public officers. 16 (Emphases supplied) The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare Office Incharge, Division of Urban, Rural and Community Administration, Social Welfare Administration." She was assigned as Social Welfare Incharge of the Mountain Province, by an office order of the Administrator, Social Welfare Administration. After a little more than a year; petitioner was assigned elsewhere and respondent Ganaden transferred to petitioner's first station in Baguio City. The Court ruled that petitioner was not entitled to remain in her first station, In Jaro v. Hon. Valencia, et al., 18 petitioner Dr. Jaro had been appointed "Physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals." He was first assigned to the Municipal Maternity and Charity Clinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and then to Catil, Davao. He was later assigned to the Municipality of Padada, also of Davao Province. He resisted his last assignment and brought mandamus against the Secretary of Health to compel the latter to return him to his station in Catil, Davao as Municipal Health Officer thereof. The Court, applying Miclat v. Ganaden dismissed this Petition holding that his appointment not being to any specific station but as a physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals, he could be transferred or assigned to any station where, in the opinion of the Secretary of Health, his services may be utilized more effectively. 19 Also noteworthy is Sta. Maria v. Lopez 20 which involved the appointment of petitioner Sta. Maria as "Dean, College of Education, University of the Philippines." Dean Sta. Maria was transferred by the President of the University of the Philippines to the Office of the President, U.P., without demotion in rank or salary, thereby acceding to the demands of student activists who were boycotting their classes in the U.P. College of Education. Dean Sta. Maria assailed his transfer as an illegal and unconstitutional removal from office. In

upholding Dean Sta. Maria's claim, the Court, speaking through Mr. Justice Sanchez, laid down the applicable doctrine in the following terms: 4. Concededly, transfers there are which do not amount to removal. Some such transfer can be effected without the need for charges being preferred, without trial or hering, and even without the consent of the employee. The clue to such transfers may be found in the "nature of the appointment." Where the appointment does not indicate a specific station, an employee may be transferred or reassigned provided the transfer affects no substantial change in title, rank and salary. Thus one who is appointed "principal in the Bureau of Public Schools" and is designated to head a pilot school may be transferred to the post of principal of another school. And the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed — not merely assigned — to a particular station. Such a rule does not prescribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. The use of approved techniques or methods in personnel management to harness the abilities of employees to promote optimum public service cannot-be objected to. . . . 5. The next point of inquiry is whether or not Administrative Order 77 would stand the test of validity vis-a-vis the principles just enunciated. xxx xxx xxx To be stressed at this point, however, is that the appointment of Sta. Maria is that of "Dean, College of Education, University of the Philippines." He is not merely a dean "in the university." His appointment is to a specific position; and, more importantly, to a specific station. 21 (Citations omitted; emphases supplied)

For all the foregoing we conclude that the reassignment of petitioners Fernandez and de Lima from their stations in the OPIA and OPR, respectively, to the Research Development Office (RDO) and from the RDO to the Commissions Regional Offices in Regions V and III, respectively, without their consent, did not constitute a violation of their constitutional right to security of tenure. WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer for Writ of Preliminary Injunction or Temporary Restraining Order is hereby DISMISSED. The Temporary Restraining Order issued by this Court on 27 September 1994 is hereby LIFTED. Costs against petitioners. SO ORDERED. Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Footnotes 1 Commissioner Thelma P. Gaminde did not participate in the adoption of this Resolution. 2 Rollo, pp. 27-29. 3 Book V, Tittle I, Subtitle A, Chapter 3, 1987 Revised Administrative Code. 4 Please see Motion to Lift Temporary Restraining Order filed by public respondents, Rollo, pp. 75-77. 5 Appari vs. Court of Appeals, 127 SCRA 231 (1984); Oliveros v. Villaluz, 57 SCRA 163 (1974); Fernandez vs. Ledesma, 117 Phil. 630 (1963); Alba vs. Evangelista, 100 Phil. 683 (1957). 6 The dual reference of the term "office" or "public office" is brought out in the definition of the term found in Section 2(9), Introductory Provisions of the Revised Administrative Code of 1987: Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. (Emphasis supplied)

7 The Civil Service Commission is not the only agency of government that has been expressly vested with this authority to effect changes in internal organization. Comparable authority has been lodged in, e.g., the Commission on Elections and the Office of the President. In respect of Comelec, Section 13, Chapter 3, Subtitle C, Title I, Book V, 1987 Revised Administrative Code reads as follows: The Commission may make changes in the composition, distribution, and assignment of field offices, as well its personnel, whenever the exigencies of the service and the interest of free, orderly, honest, peaceful, and credible election so require: Provided, That such changes shall be effective and enforceable only for the duration of the election period concerned and shall not constitute a demotion, either in rank or salary, nor result in a change of status; and Provided further that there shall be no changes in the composition, distribution, or assignment within thirty days before the election, except for cause, and after due notice and hearing, and that in no case shall a regional or assistant regional director be assigned to a region, provincial election supervisor to a province, or municipality, where he and/or his spouse are related to any candidate within the fourth civil degree or consanguinity or affinity as the case may be. (Section 13, Chapter 3, Subtitle C, Title 1, Book V, Revised Administrative Code of 1987; Emphasis supplied) With respect to the Office of the President, Section 31, Chapter 10, Title III, Book III, Revised Administrative Code of 1987, vested the President with the following authority: The President subject to the policy in the Executive Office and in order to achieve simplicity, economy, and efficiency, shall have continuing authority to reorganize the administrative structure of the Office

of the President. For this purpose, he may take any of the following actions: (1) Restructure the internal organization of the Office of the President Proper, including the immediate offices, the Presidential Special Assistant Adviser System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof, or transferring functions from one unit to another; xxx xxx xxx (Section 31, Chapter 10, Title 3, Book III Revised Administrative Code of 1987; Emphasis supplied) 8 183 SCRA 555 (1990). 9 183 SCRA at 561-562. 10 234 SCRA 546 (1994). 11 234 SCRA at 553. 12 193 SCRA 520 (1991). 13 193 SCRA at 523. See also Brillantes v. Guevarra, 27 SCRA 138 (1969), where petitioner Brillantes had an appointment as (a) Principal, Elementary School, in the Bureau of Public Schools Department of Education and where the Court reached the same conclusion. 14 19 SCRA 1002 (1967). 15 For other cases involving election registrars and applying the same rule, see Braganza v. Commission on Elections, 20 SCRA 1023 (1967); Real, Jr. v. Commission on Elections, et al., 21 SCRA 331 (1967). 16 19 SCRA at 1012-1013. 17 108 Phil. 439 (1960). 18 118 Phil. 728 (1963). 19 See also Bongbong v. Parade et al., 57 SCRA 623 (1974) which involved petitioner's appointment as "rural health physician in the Bureau of Rural Health Units Projects." 20 31 SCRA 637 (1970). 21 31 SCRA at 652-654.

Notes:

Republic v. Bacas THIRD DIVISION G.R. No. 182913 November 20, 2013 REPUBLIC V. BACAS, ET. AL DECISION MENDOZA, J.: This petition for review on certiorari under Rule 45 of the Rules of Court seeks to review, reverse and set aside the November 12, 2007 Decision1 and the May 15, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 64142, upholding the decision of the Regional Trial Court, Branch 17, Cagayan de Oro City (RTC) , which dismissed the consolidated cases of Civil Case No. 3494, entitled Republic of the Philippines v. Antonio, et al. and Civil Case No. 5918, entitled Republic of the Philippines v. Emiliana Chabon , et al. Said civil cases were filed by the Republic of the Philippines (Republic) for the cancellation and annulment of Original Certificate of Title (OCT) No. 0-358 and OCT No. O-669, covering certain parcels of land occupied and utilized as part of the Camp Evangelista Military Reservation, Misamis Oriental, presently the home of the 4th Infantry Division of the Philippine Army. The Antecedents: In 1938, Commonwealth President Manuel Luis Quezon (Pres. Quezon) issued Presidential Proclamation No. 265, which took effect on March 31, 1938, reserving for the use of the Philippine Army three (3) parcels of the public domain situated in the barrios of Bulua and Carmen, then Municipality of Cagayan, Misamis Oriental. The parcels of land were withdrawn from sale or settlement and reserved for military purposes, "subject to private rights, if any there be." Land Registration Case No. N-275 [Antonio, Feliza, Nemesio, Roberto, and Felicidad, all surnamed Bacas, and the Heirs of Jesus Bacas, Applicants (The Bacases)] The Bacases filed their Application for Registration3 on November 12, 1964 covering a parcel of land, together with all the improvements found thereon, located in Patag, Cagayan de Oro City, more particularly described and bounded as follows: A parcel of land, Lot No. 4354 of the Cadastral Survey of Cagayan, L.R.C. Record No. 1612, situated at Barrio Carmen, Municipality of Cagayan, Province of Misamis Oriental. Bounded on the SE., along lines 1-2-3-4, by Lot 4357; and alongline 4-5, by Lot 3862; on the S., along line 5-6, by Lot 3892; on the W. and NW., along lines 6-7-8, by

Lot 4318; on the NE., along line 8-9, by Lot 4319, along line 9-10, by Lot 4353 and long line 10-11, by Lot 4359; and on the SE., along line 11-1, by Lot 4356, all of Cagayan Cadastre; containing an area of THREE HUNDRED FIFTY FOUR THOUSAND THREE HUNDRED SEVENTY SEVEN (354,377) square meters, more or less, under Tax Declaration No. 35436 and assessed at ₱3,540.00.4 They alleged ownership in fee simple of the property and indicated in their application the names and addresses of the adjoining owners, as well as a statement that the Philippine Army (Fourth Military Area) recently occupied a portion of the land by their mere tolerance.5 The Director of the Bureau of Lands, thru its Special Counsel, Benito S. Urcia (Urcia) , registered its written Opposition6 against the application. Later, Urcia, assisted by the District Land Officer of Cagayan de Oro City, thru the Third Assistant Provincial Fiscal of Misamis Oriental, Pedro R. Luspo (Luspo) , filed an Amended Opposition.7 On April 10, 1968, based on the evidence presented by the Bacases, the Land Registration Court (LRC) rendered a decision8 holding that the applicants had conclusively established their ownership in fee simple over the subject land and that their possession, including that of their predecessor-in-interest, had been open, adverse, peaceful, uninterrupted, and in concept of owners for more than forty (40) years. No appeal was interposed by the Republic from the decision of the LRC. Thus, the decision became final and executory, resulting in the issuance of a decree and the corresponding certificate of title over the subject property. Land Registration Case No. N-521 [Emiliana Chabon, Estela Chabon and Pedrita Chabon, Applicants (The Chabons)] The Chabons filed their Application for Registration9 on May 8, 1974 covering a parcel of land located in Carmen-District, Cagayan de Oro City, known as Lot 4357, Cagayan Cadastre, bounded and described as: A parcel of land (Lot 4357, Cagayan Cadastre, plan Ap-12445), situated in the District of Carmen, City of Cagayan de Oro. Bounded on the NE. by property of Potenciano Abrogan vs. Republic of the Philippines (Public Land); on the SE. by properties of Geronimo Wabe and Teofilo Batifona or Batipura; on the SW. by property of Teofilo Batifona or Batipura; and on the NW. by property of Felipe Bacao or Bacas vs. Republic of the Philippines (Public Land). Point

"1" is N. 10 deg. 39’W., 379.88 M. from B.L.L.M. 14, Cagayan Cadastre. Area SIXTY NINE THOUSAND SIX HUNDRED THIRTY TWO (69,632) SQUARE METERS, more or less.10 They alleged ownership in fee simple over the property and indicated therein the names and addresses of the adjoining owners, but no mention was made with respect to the occupation, if any, by the Philippine Army. The Chabons likewise alleged that, to the best of their knowledge, no mortgage or encumbrance of any kind affecting said land with the exception of 18,957 square meters sold to Minda J. Castillo and 1,000 square meters sold and conveyed to Atty. Arturo R. Legaspi.11 On February 18, 1976, there being no opposition made, even from the government, hearing on the application ensued. The LRC then rendered a decision12 holding that Chabons’ evidence established their ownership in fee simple over the subject property and that their possession, including that of their predecessor-in-interest, had been actual, open, public, peaceful, adverse, continuous, and in concept of owners for more than thirty (30) years. The decision then became final and executory. Thus, an order13 for the issuance of a decree and the corresponding certificate of title was issued. The present cases As a consequence of the LRC decisions in both applications for registration, the Republic filed a complaint for annulment of titles against the Bacases and the Chabons before the RTC. More specifically, on September 7, 1970 or one (1) year and ten (10) months from the issuance of OCT No. 0-358, a civil case for annulment, cancellation of original certificate of title, reconveyance of lot or damages was filed by the Republic against the Bacases, which was docketed as Civil Case No. 3494. On the other hand, on April 21, 1978 or two (2) years and seven (7) months after issuance of OCT No. 0-669, the Republic filed a civil case for annulment of title and reversion against the Chabons, docketed as Civil Case No. 5918. Civil Case No. 3494 against the Bacases The Republic claimed in its petition for annulment before the RTC14 that the certificate of title issued in favor of the Bacases was null and void because they fraudulently omitted to name the military camp as the actual occupant in their application for registration. Specifically, the Republic, through the Fourth Military Area, was the actual occupant of Lot No. 4354 and also the owner and possessor of the

adjoining Lots Nos. 431815 and 4357. Further, the Bacases failed to likewise state that Lot No. 4354 was part of Camp Evangelista. These omissions constituted fraud which vitiated the decree and certificate of title issued. Also, the Republic averred that the subject land had long been reserved in 1938 for military purposes at the time it was applied for and, so, it was no longer disposable and subject to registration.16 Civil Case No. 5918 against the Chabons In this case, the Republic claimed that it was the absolute owner and possessor of Lot No. 4357. The said lot, together with Lots 431817 and 4354, formed part of the military reservation known as Camp Evangelista in Cagayan de Oro City, which was set aside and reserved under Presidential Proclamation No. 265 issued by President Quezon on March 31, 1938.18 In its petition for annulment before the RTC,19 the Republic alleged that OCT No. 0-669 issued in favor of the Chabons and all transfer certificates of titles, if any, proceeding therefrom, were null and void for having been vitiated by fraud and/or lack of jurisdiction.20 The Chabons concealed that the fact that Lot 4357 was part of Camp Evangelista and that the Republic, through the Armed Forces of the Philippines, was its actual occupant and possessor.21 Further, Lot 4357 was a military reservation, established as such as early as March 31, 1938 and, thus, could not be the subject of registration or private appropriation.22 As a military reservation, it was beyond the commerce of man and the registration court did not have any jurisdiction to adjudicate the same as private property.23 Decision of the Regional Trial Court As the facts and issues in both cases were substantially the same and identical, and the pieces of evidence adduced were applicable to both, the cases were consolidated and jointly tried. Thereafter, a joint decision dismissing the two complaints of the Republic was rendered. In dismissing the complaints, the RTC explained that the stated fact of occupancy by Camp Evangelista over certain portions of the subject lands in the applications for registration by the respondents was a substantial compliance with the requirements of the law.24 It would have been absurd to state Camp Evangelista as an adjoining owner when it was alleged that it was an occupant of the land.25 Thus, the RTC ruled that the respondents did not commit fraud in filing their applications for registration.

Moreover, the RTC was of the view that the Republic was then given all the opportunity to be heard as it filed its opposition to the applications, appeared and participated in the proceedings. It was, thus, estopped from contesting the proceedings. The RTC further reasoned out that assuming arguendo that respondents were guilty of fraud, the Republic lost its right to a relief for its failure to file a petition for review on the ground of fraud within one (1) year after the date of entry of the decree of registration.26 Consequently, it would now be barred by prior judgment to contest the findings of the LRC.27 Finally, the RTC agreed with the respondents that the subject parcels of land were exempted from the operation and effect of the Presidential Proclamation No. 265 pursuant to a proviso therein that the same would not apply to lands with existing "private rights." The presidential proclamation did not, and should not, apply to the respondents because they did not apply to acquire the parcels of land in question from the government, but simply for confirmation and affirmation of their rights to the properties so that the titles over them could be issued in their favor.28 What the proclamation prohibited was the sale or disposal of the parcels of land involved to private persons as a means of acquiring ownership of the same, through the modes provided by law for the acquisition of disposable public lands.29 The Republic filed its Notice of Appeal before the RTC on July 5, 1991. On the other hand, the Bacases and the Chabons filed an ExParte Motion for the Issuance of the Writ of Execution and Possession on July 16, 1991. An amended motion was filed on July 31, 1991. The RTC then issued the Order,30 dated February 24, 1992, disapproving the Republic’s appeal for failure to perfect it as it failed to notify the Bacases and granting the writ of execution. Action of the Court of Appeals and the Court regarding the Republic’s Appeal The Republic filed a Notice of Appeal on April 1, 1992 from the February 24, 1992 of the RTC. The same was denied in the RTC Order,31 dated April 23, 1992. The Republic moved for its reconsideration but the RTC was still denied it on July 8, 1992.32 Not satisfied, the Republic filed a petition before the CA, docketed as CA-G.R. SP No. 28647, entitled Republic vs. Hon. Cesar M. Ybañez,33 questioning the February 24, 1992 Order of the RTC denying its appeal in Civil Case No. 3494. The CA sustained the government and, accordingly, annulled the said RTC order.

The respondents appealed to the Court, which later found no commission of a reversible error on the part of the CA. Accordingly, the Court dismissed the appeal as well as the subsequent motions for reconsideration. An entry of judgment was then issued on February 16, 1995.34 Ruling of the Court of Appeals The appeal allowed, the CA docketed the case as CA G.R. CV No. 64142. On November 12, 2007, the CA affirmed the ruling of the RTC. It explained that once a decree of registration was issued under the Torrens system and the reglementary period had passed within which the decree may be questioned, the title was perfected and could not be collaterally questioned later on.35 Even assuming that an action for the nullification of the original certificate of title may still be instituted, the review of a decree of registration under Section 38 of Act No. 496 [Section 32 of Presidential Decree (P.D.) No. 1529] would only prosper upon proof that the registration was procured through actual fraud,36 which proceeded from an intentional deception perpetrated through the misrepresentation or the concealment of a material fact.37 The CA stressed that "[t]he fraud must be actual and extrinsic, not merely constructive or intrinsic; the evidence thereof must be clear, convincing and more than merely preponderant, because the proceedings which are assailed as having been fraudulent are judicial proceedings which by law, are presumed to have been fair and regular."38 Citing the rule that "[t]he fraud is extrinsic if it is employed to deprive parties of their day in court and, thus, prevent them from asserting their right to the property registered in the name of the applicant,"39 the CA found that there was none. The CA agreed with the RTC that there was substantial compliance with the requirement of the law. The allegation of the respondent that Camp Evangelista occupied portions of their property negated the complaint that they committed misrepresentation or concealment amounting to fraud.40 As regards the issue of exemption from the proclamation, the CA deemed that a discussion was unnecessary because the LRC already resolved it. The CA stressed that the proceeding was one in rem, thereby binding everyone to the legal effects of the same and that a decree of registration that had become final should be deemed conclusive not only on the questions actually contested and

determined, but also upon all matters that might be litigated or decided in the land registration proceeding.41 Not in conformity, the Republic filed a motion for reconsideration which was denied on May 15, 2008 for lack of merit. Hence, this petition. GROUNDS RELIED UPON WARRANTING REVIEW OF THE PETITION 1. THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN HOLDING THAT THE LAND REGISTRATION COURT HAD JURISDICTION OVER THE APPLICATION FOR REGISTRATION FILED BY RESPONDENTS DESPITE THE LATTER’S FAILURE TO COMPLY WITH THE MANDATORY REQUIREMENT OF INDICATING ALL THE ADJOINING OWNERS OF THE PARCELS OF LAND SUBJECT OF THE APPLICATION. 2. THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN HOLDING THAT RESPONDENTS HAVE A REGISTRABLE RIGHT OVER THE SUBJECT PARCELS OF LAND WHICH ARE WITHIN THE CAMP EVANGELISTA MILITARY RESERVATION. 3. IN G.R. NO. 157306 ENTITLED "REPUBLIC OF THE PHILIPPINES VS. ANATALIA ACTUB TIU ESTONILO, ET AL.," WHICH INVOLVES PRIVATE INDIVIDUALS CLAIMING RIGHTS OVER PORTIONS OF THE CAMP EVANGELISTA MILITARY RESERVATION, THIS HONORABLE COURT HELD THAT THESE INDIVIDUALS COULD NOT HAVE VALIDLY OCCUPIED THEIR CLAIMED LOTS BECAUSE THE SAME WERE CONSIDERED INALIENABLE FROM THE TIME OF THEIR RESERVATION IN 1938. HERE, THE CERTIFICATES OF TITLE BEING SUSTAINED BY THE COURT OF APPEALS WERE ISSUED PURSUANT TO THE DECISIONS OF THE LAND REGISTRATION COURT IN APPLICATIONS FOR REGISTRATION FILED IN 1964 AND 1974. VERILY, THE COURT OF APPEALS, IN ISSUING THE HEREIN ASSAILED DECISION DATED NOVEMBER 15, 2007 AND RESOLUTION DATED MAY 15, 2008, HAS DECIDED THAT INSTANT

CONTROVERSY IN A MANNER THAT IS CONTRARY TO LAW AND JURISPRUDENCE.42 Position of the Republic In advocacy of its position, the Republic principally argues that (1) the CA erred in holding that the LRC acquired jurisdiction over the applications for registration of the reserved public lands filed by the respondents; and (2) the respondents do not have a registrable right over the subject parcels of land which are within the Camp Evangelista Military Reservation. With respect to the first argument, the Republic cites Section 15 of P.D. No. 1529, which requires that applicants for land registration must disclose the names of the occupants of the land and the names and addresses of the owners of the adjoining properties. The respondents did not comply with that requirement which was mandatory and jurisdictional. Citing Pinza v. Aldovino,43 it asserts that the LRC had no jurisdiction to take cognizance of the case. Moreover, such omission constituted fraud or willful misrepresentation. The respondents cannot invoke the indefeasibility of the titles issued since a "grant tainted with fraud and secured through misrepresentation is null and void and of no effect whatsoever."44 On the second argument, the Republic points out that Presidential Proclamation No. 265 reserved for the use of the Philippine Army certain parcels of land which included Lot No. 4354 and Lot No. 4357. Both lots were, however, allowed to be registered. Lot No. 4354 was registered as OCT No. 0-0358 and Lot No. 4357 as OCT No. O-669. The Republic asserts that being part of the military reservation, these lots are inalienable and cannot be the subject of private ownership. Being so, the respondents do not have registrable rights over them. Their possession of the land, however long, could not ripen into ownership, and they have not shown proof that they were entitled to the land before the proclamation or that the said lots were segregated and withdrawn as part thereof. Position of the Respondents The Bacases The Bacases anchor their opposition to the postures of the Republic on three principal arguments: First, there was no extrinsic fraud committed by the Bacases in their failure to indicate Camp Evangelista as an adjoining lot owner as their application for registration substantially complied with the legal

requirements. More importantly, the Republic was not prejudiced and deprived of its day in court. Second, the LRC had jurisdiction to adjudicate whether the Bacases had "private rights" over Lot No. 4354 in accordance with, and therefore exempt from the coverage of, Presidential Proclamation No. 265, as well as to determine whether such private rights constituted registrable title under the land registration law. Third, the issue of the registrability of the title of the Bacases over Lot No. 4354 is res judicata and cannot now be subject to a re-litigation or reopening in the annulment proceedings.45 Regarding the first ground, the Bacases stress that there was no extrinsic fraud because their application substantially complied with the requirements when they indicated that Camp Evangelista was an occupant by mere tolerance of Lot No. 4354. Also, the Republic filed its opposition to the respondents’ application and actively participated in the land registration proceedings by presenting evidence, through the Director of Lands, who was represented by the Solicitor General. The Republic, therefore, was not deprived of its day in court or prevented from presenting its case. Its insistence that the noncompliance with the requirements of Section 15 of P.D. No. 1529 is an argument that is at once both empty and dangerous.46 On jurisdiction, the Bacases assert that even in the case of Republic v. Estonilo,47 it was recognized in Presidential Proclamation No. 265 that the reservation was subject to private rights. In other words, the LRC had authority to hear and adjudicate their application for registration of title over Lot No. 4354 if they would be able to prove that their private rights under the presidential proclamation constituted registrable title over the said lot. They claim that there is completely no basis for the Republic to argue that the LRC had no jurisdiction to hear and adjudicate their application for registration of their title to Lot No. 4354 just because the proclamation withdrew the subject land from sale and settlement and reserved the same for military purposes. They cited the RTC statement that "the parcels of land they applied for in those registration proceedings and for which certificates of title were issued in their favor are precisely exempted from the operation and effect of said presidential proclamation when the very same proclamation in itself made a proviso that the same will not apply to lands with existing ‘private rights’ therein."48 The Bacases claim that the issue of registrability is no longer an issue as what is only to be resolved is the question on whether there was

extrinsic or collateral fraud during the land registration proceedings. There would be no end to litigation on the registrability of their title if questions of facts or law, such as, whether or not Lot No. 4354 was alienable and disposable land of the public domain prior to its withdrawal from sale and settlement and reservation for military purposes under Presidential Proclamation No. 265; whether or not their predecessors-in-interest had prior possession of the lot long before the issuance of the proclamation or the establishment of Camp Evangelista in the late 1930’s; whether or not such possession was held in the concept of an owner to constitute recognizable "private rights" under the presidential proclamation; and whether or not such private rights constitute registrable title to the lot in accordance with the land registration law, which had all been settled and duly adjudicated by the LRC in favor of the Bacases, would be reexamined under this annulment case.49 The issue of registrability of the Bacases’ title had long been settled by the LRC and is res judicata between the Republic and the respondents. The findings of the LRC became final when the Republic did not appeal its decision within the period to appeal or file a petition to reopen or review the decree of registration within one year from entry thereof.50 To question the findings of the court regarding the registrability of then title over the land would be an attempt to reopen issues already barred by res judicata. As correctly held by the RTC, it is estopped and barred by prior judgment to contest the findings of the LRC.51 The Chabons In traversing the position of the Republic, the Chabons insist that the CA was correct when it stated that there was substantial compliance52 with the requirements of the P.D. No. 1529 because they expressly stated in their application that Camp Evangelista was occupying a portion of it. It is contrary to reason or common sense to state that Camp Evangelista is an adjoining owner when it is occupying a portion thereof. And as to the decision, it was a consequence of a proceeding in rem and, therefore, the decree of registration is binding and conclusive against all persons including the Republic who did not appeal the same. It is now barred forever to question the validity of the title issued. Besides, res judicata has set in because there is identity of parties, subject matter and cause of action.53

The Chabons also assailed the proclamation because when it was issued, they were already the private owners of the subject parcels of land and entitled to protection under the Constitution. The taking of their property in the guise of a presidential proclamation is not only oppressive and arbitrary but downright confiscatory.54 The Issues The ultimate issues to be resolved are: 1) whether or not the decisions of the LRC over the subject lands can still be questioned; and 2) whether or not the applications for registration of the subject parcels of land should be allowed. The Court’s Ruling The Republic can question even final and executory judgment when there was fraud. The governing rule in the application for registration of lands at that time was Section 21 of Act 49655 which provided for the form and content of an application for registration, and it reads: Section 21. The application shall be in writing, signed and sworn to by applicant, or by some person duly authorized in his behalf. x x x It shall also state the name in full and the address of the applicant, and also the names and addresses of all adjoining owners and occupants, if known; and, if not known, it shall state what search has been made to find them. x x x The reason behind the law was explained in the case of Fewkes vs. Vasquez,56 where it was written: Under Section 21 of the Land Registration Act an application for registration of land is required to contain, among others, a description of the land subject of the proceeding, the name, status and address of the applicant, as well as the names and addresses of all occupants of the land and of all adjoining owners, if known, or if unknown, of the steps taken to locate them. When the application is set by the court for initial hearing, it is then that notice (of the hearing), addressed to all persons appearing to have an interest in the lot being registered and the adjoining owners, and indicating the location, boundaries and technical description of the land being registered, shall be published in the Official Gazette for two consecutive times. It is this publication of the notice of hearing that is considered one of the essential bases of the jurisdiction of the court in land registration cases, for the proceedings being in rem, it is only when there is constructive seizure of the land, effected by the publication and notice, that jurisdiction over the res is vested on the court. Furthermore, it is such notice and

publication of the hearing that would enable all persons concerned, who may have any rights or interests in the property, to come forward and show to the court why the application for registration thereof is not to be granted. Here, the Chabons did not make any mention of the ownership or occupancy by the Philippine Army. They also did not indicate any efforts or searches they had exerted in determining other occupants of the land. Such omission constituted fraud and deprived the Republic of its day in court. Not being notified, the Republic was not able to file its opposition to the application and, naturally, it was not able to file an appeal either. The Republic can also question a final and executory judgment when the LRC had no jurisdiction over the land in question With respect to the Bacases, although the lower courts might have been correct in ruling that there was substantial compliance with the requirements of law when they alleged that Camp Evangelista was an occupant, the Republic is not precluded and estopped from questioning the validity of the title. The success of the annulment of title does not solely depend on the existence of actual and extrinsic fraud, but also on the fact that a judgment decreeing registration is null and void. In Collado v. Court of Appeals and the Republic,57 the Court declared that any title to an inalienable public land is void ab initio. Any procedural infirmities attending the filing of the petition for annulment of judgment are immaterial since the LRC never acquired jurisdiction over the property. All proceedings of the LRC involving the property are null and void and, hence, did not create any legal effect. A judgment by a court without jurisdiction can never attain finality.58 In Collado, the Court made the following citation: The Land Registration Court has no jurisdiction over non-registrable properties, such as public navigable rivers which are parts of the public domain, and cannot validly adjudge the registration of title in favor of private applicant. Hence, the judgment of the Court of First Instance of Pampanga as regards the Lot No. 2 of certificate of Title No. 15856 in the name of petitioners may be attacked at any time, either directly or collaterally, by the State which is not bound by any prescriptive period provided for by the Statute of Limitations.59 Prescription or estoppel cannot lie against the government In denying the petition of the Republic, the CA reasoned out that 1) once a decree of registration is issued under the Torrens system and

the reglementary period has passed within which the decree may be questioned, the title is perfected and cannot be collaterally questioned later on;60 2) there was no commission of extrinsic fraud because the Bacases’ allegation of Camp Evangelista’s occupancy of their property negated the argument that they committed misrepresentation or concealment amounting to fraud;61 and 3) the Republic did not appeal the decision and because the proceeding was one in rem, it was bound to the legal effects of the decision. Granting that the persons representing the government was negligent, the doctrine of estoppel cannot be taken against the Republic. It is a well-settled rule that the Republic or its government is not estopped by mistake or error on the part of its officials or agents. In Republic v. Court of Appeals,62 it was written: In any case, even granting that the said official was negligent, the doctrine of estoppel cannot operate against the State . "It is a wellsettled rule in our jurisdiction that the Republic or its government is usually not estopped by mistake or error on the part of its officials or agents (Manila Lodge No. 761 vs. CA, 73 SCRA 166, 186; Republic vs. Marcos, 52 SCRA 238, 244; Luciano vs. Estrella, 34 SCRA 769). Consequently, the State may still seek the cancellation of the title issued to Perpetuo Alpuerto and his successors-interest pursuant to Section 101 of the Public Land Act. Such title has not become indefeasible, for prescription cannot be invoked against the State (Republic vs. Animas, supra). The subject lands, being part of a military reservation, are inalienable and cannot be the subjects of land registration proceedings The application of the Bacases and the Chabons were filed on November 12, 1964 and May 8, 1974, respectively. Accordingly, the law governing the applications was Commonwealth Act (C.A.) No. 141,63 as amended by RA 1942,64 particularly Sec. 48(b) which provided that: Those who by themselves or through their predecessors in interest have been in open, continuous, exclusive and notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition of ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter.

As can be gleaned therefrom, the necessary requirements for the grant of an application for land registration are the following: 1. The applicant must, by himself or through his predecessors-in-interest, have been in possession and occupation of the subject land; 2. The possession and occupation must be open, continuous, exclusive and notorious; 3. The possession and occupation must be under a bona fide claim of ownership for at least thirty years immediately preceding the filing of the application; and 4. The subject land must be an agricultural land of the public domain. As earlier stated, in 1938, President Quezon issued Presidential Proclamation No. 265, which took effect on March 31, 1938, reserving for the use of the Philippine Army parcels of the public domain situated in the barrios of Bulua and Carmen, then Municipality of Cagayan, Misamis Oriental. The subject parcels of land were withdrawn from sale or settlement or reserved for military purposes, "subject to private rights, if any there be."65 Such power of the President to segregate lands was provided for in Section 64(e) of the old Revised Administrative Code and C.A. No. 141 or the Public Land Act. Later, the power of the President was restated in Section 14, Chapter 4, Book III of the 1987 Administrative Code. When a property is officially declared a military reservation, it becomes inalienable and outside the commerce of man.66 It may not be the subject of a contract or of a compromise agreement.67 A property continues to be part of the public domain, not available for private appropriation or ownership, until there is a formal declaration on the part of the government to withdraw it from being such.68 In the case of Republic v. Court of Appeals and De Jesus,69 it was even stated that Lands covered by reservation are not subject to entry, and no lawful settlement on them can be acquired.1âwphi1 The claims 0f persons who have settled on, occupied, and improved a parcel of public land which is later included in a reservation are considered worthy of protection and are usually respected, but where the President, as authorized by law, issues a proclamation reserving certain lands and warning all persons to depart therefrom, this terminates any rights previously acquired in such lands by a person who was settled

thereon in order to obtain a preferential right of purchase. And patents for lands which have been previously granted, reserved from sale, or appropriate, are void. Regarding the subject lots, there was a reservation respecting "private rights." In Republic v. Estonilo,70 where the Court earlier declared that Lot No. 4318 was part of the Camp Evangelista Military Reservation and, therefore, not registrable, it noted the proviso in Presidential Proclamation No. 265 requiring the reservation to be subject to private rights as meaning that persons claiming rights over the reserved land were not precluded from proving their claims. Stated differently, the said proviso did not preclude the LRC from determining whether or not the respondents indeed had registrable rights over the property. As there has been no showing that the subject parcels of land had been segregated from the military reservation, the respondents had to prove that the subject properties were alienable and disposable land of the public domain prior to its withdrawal from sale and settlement and reservation for military purposes under Presidential Proclamation No. 265. The question is of primordial importance because it is determinative if the land can in fact be subject to acquisitive prescription and, thus, registrable under the Torrens system. Without first determining the nature and character of the land, all the other requirements such as the length and nature of possession and occupation over such land do not come into play. The required length of possession does not operate when the land is part of the public domain. In this case, however, the respondents miserably failed to prove that, before the proclamation, the subject lands were already private lands. They merely relied on such "recognition" of possible private rights. In their application, they alleged that at the time of their application,71 they had been in open, continuous, exclusive, and notorious possession of the subject parcels of land for at least thirty (30) years and became its owners by prescription. There was, however, no allegation or showing that the government had earlier declared it open for sale or settlement, or that it was already pronounced as inalienable and disposable. It is well-settled that land of the public domain is not ipso facto converted into a patrimonial or private property by the mere possession and occupation by an individual over a long period of time. In the case of Diaz v. Republic,72 it was written:

But even assuming that the land in question was alienable land before it was established as a military reservation, there was nevertheless still a dearth of evidence with respect to its occupation by petitioner and her predecessors-in-interest for more than 30 years. x x x. x x x. A mere casual cultivation of portions of the land by the claimant, and the raising thereon of cattle, do not constitute possession under claim of ownership. In that sense, possession is not exclusive and notorious as to give rise to a presumptive grant from the State. While grazing livestock over land is of course to be considered with other acts of dominion to show possession, the mere occupancy of land by grazing livestock upon it, without substantial enclosures, or other permanent improvements, is not sufficient to support a claim of title thru acquisitive prescription. The possession of public land, however long the period may have extended, never confers title thereto upon the possessor because the statute of limitations with regard to public land does not operate against the State unless the occupant can prove possession and occupation of the same under claim of ownership for the required number of years to constitute a grant from the State. [Emphases supplied] In the recent case of Heirs of Mario Malabanan vs. Republic of the Philippines,73 the Court emphasized that fundamental is the rule that lands of the public domain, unless declared otherwise by virtue of a statute or law, are inalienable and can never be acquired by prescription. No amount of time of possession or occupation can ripen into ownership over lands of the public domain. All lands of the public domain presumably belong to the State and are inalienable. Lands that are not clearly under private ownership are also presumed to belong to the State and, therefore, may not be alienated or disposed.74 Another recent case, Diaz v. Republic,75 also held that possession even for more than 30 years cannot ripen into ownership.76 Possession is of no moment if applicants fail to sufficiently and satisfactorily show that the subject lands over which an application was applied for was indeed an alienable and disposable agricultural land of the public domain. It would not matter even if they declared it for tax purposes. In Republic v. Heirs of Juan Fabio,77 the rule was reiterated. Thus:

Well-entrenched is the rule that unless a land is reclassified and declared alienable and disposable, occupation in the concept of an owner, no matter how long, cannot ripen into ownership and be registered as a title. Consequently, respondents could not have occupied the Lot in the concept of an owner in 1947 and subsequent years when respondents declared the Lot for taxation purposes, or even earlier when respondents' predecessors-in-interest possessed the Lot, because the Lot was considered inalienable from the time of its declaration as a military reservation in 1904. Therefore, respondents failed to prove, by clear and convincing evidence, that the Lot is alienable and disposable. Public lands not shown to have been classified as alienable and disposable land remain part of the inalienable public domain. In view of the lack of sufficient evidence showing that the Lot was already classified as alienable and disposable, the Lot applied for by respondents is inalienable land of the public domain, not subject to registration under Section 14(1) of PD 1529 and Section 48(b) of CA 141, as amended by PD 1073. Hence, there is no need to discuss the other requisites dealing with respondents' occupation and possession of the Lot in the concept of an owner. While it is an acknowledged policy of the State to promote the distribution of alienable public lands to spur economic growth and in line with the ideal of social justice, the law imposes stringent safeguards upon the grant of such resources lest they fall into the wrong hands to the prejudice of the national patrimony. We must not, therefore, relax the stringent safeguards relative to the registration of imperfect titles. [Emphases Supplied] In Estonilo,78 where the Court ruled that persons claiming the protection of "private rights" in order to exclude their lands from military reservations must show by clear and convincing evidence that the properties in question had been acquired by a legal method of acquiring public lands, the respondents therein failed to clearly prove that the lands over which they lay a claim were alienable and disposable so that the same belonged and continued to belong to the State and could not be subject to the commerce of man or registration. Specifically, the Court wrote: Land that has not been acquired from the government, either by purchase or by grant, belongs to the State as part of the public domain. For this reason, imperfect titles to agricultural lands are subjected to rigorous scrutiny before judicial confirmation is granted.

In the same manner, persons claiming the protection of "private rights" in order to exclude their lands from military reservations must show by clear and convincing evidence that the pieces of property in question have been acquired by a legal method of acquiring public lands. In granting respondents judicial confirmation of their imperfect title, the trial and the appellate courts gave much weight to the tax declarations presented by the former. However, while the tax declarations were issued under the names of respondents’ predecessors-in-interest, the earliest one presented was issued only in 1954.19 The Director, Lands Management Bureau v. CA20 held thus: "x x x. Tax receipts and tax declarations are not incontrovertible evidence of ownership.1âwphi1 They are mere indicia of [a] claim of ownership. In Director of Lands vs. Santiago: ‘x x x [I]f it is true that the original owner and possessor, Generosa Santiago, had been in possession since 1925, why were the subject lands declared for taxation purposes for the first time only in 1968, and in the names of Garcia and Obdin? For although tax receipts and declarations of ownership for taxation purposes are not incontrovertible evidence of ownership, they constitute at least proof that the holder had a claim of title over the property.’" In addition, the lower courts credited the alleged prior possession by Calixto and Rosendo Bacas, from whom respondents’ predecessors had purportedly bought the property. This alleged prior possession, though, was totally devoid of any supporting evidence on record. Respondents’ evidence hardly supported the conclusion that their predecessors-in-interest had been in possession of the land since "time immemorial." Moreover, as correctly observed by the Office of the Solicitor General, the evidence on record merely established the transfer of the property from Calixto Bacas to Nazaria Bombeo . The evidence did not show the nature and the period of the alleged possession by Calixto and Rosendo Bacas. It is important that applicants for judicial confirmation of imperfect titles must present specific acts of ownership to substantiate their claims; they cannot simply offer general statements that are mere conclusions of law rather than factual evidence of possession. It must be stressed that respondents, as applicants, have the burden of proving that they have an imperfect title to Lot 4318. Even the

absence of opposition from the government does not relieve them of this burden. Thus, it was erroneous for the trial and the appellate courts to hold that the failure of the government to dislodge respondents, judicially or extrajudicially, from the subject land since 1954 already amounted to a title. [Emphases supplied] The ruling reiterated the long standing rule in the case of Director Lands Management Bureau v. Court of Appeals,79 x x x. The petitioner is not necessarily entitled to have the land registered under the Torrens system simply because no one appears to oppose his title and to oppose the registration of his land. He must show, even though there is no opposition to the satisfaction of the court, that he is the absolute owner, in fee simple. Courts are not justified in registering property under the Torrens system, simply because there is no opposition offered. Courts may, even in the absence of any opposition, deny the registration of the land under the Torrens system, upon the ground that the facts presented did not show that the petitioner is the owner, in fee simple, of the land which he is attempting to have registered. The Court is not unmindful of the principle of immutability of judgments that nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable.80 Such principle, however, must yield to the basic rule that a decision which is null and void for want of jurisdiction of the trial court is not a decision m contemplation of law and can never become final and executory.81 Had the LRC given primary importance on the status of the land and not merely relied on the testimonial evidence of the respondents without other proof of the alienability of the land, the litigation would have already been ended and finally settled in accordance with law and jurisprudence a long time ago. WHEREFORE, the petition is GRANTED. The November 12, 2007 Decision and the May 15, 2008 Resolution of the Court of Appeals in CA G.R. CV No. 64142 are hereby REVERSED and SET ASIDE. Judgment is rendered declaring the proceedings in the Land Registration Court as NULL and VOID for lack of jurisdiction. Accordingly, Original Certificate of Title Nos. 0-358 and 0-669 issued by the Registry of Deeds of Cagayan de Oro City are CANCELLED. Lot No. 4354 and Lot No. 4357 are ordered reverted to the public domain.

Notes:

Yap v. Magtapon FIRST DIVISION January 23, 2017 G.R. No. 196347 DECISION CAGUIOA, J.: The presumption of regularity in the performance of official duties is an aid to the effective and unhampered administration of government functions. Without such benefit, every official action could be negated with minimal effort from litigants, irrespective of merit or sufficiency of evidence to support such challenge. To this end, our body of jurisprudence has been consistent in requiring nothing short of clear and convincing evidence to the contrary to overthrow such presumption. This case is no different. The Case 1 In this Appeal by Certiorari (Petition) filed under Rule 45 of the Rules of Court, petitioner Susan A. Yap (Yap) is assailing the Decision dated July 27, 20062 (questioned Decision) and Resolution dated February 23, 20113 issued by the Court of Appeals - Twentieth (20th) Division (CA) in CA-G.R. SP No. 61944, which denied the Petition for Annulment of Judgment (Petition for Annulment) dated November 8, 20004 and the subsequent Motion for Reconsideration filed by petitioner Yap. The questioned Decision was rendered in connection with the Decision dated February 12, 19985 (RTC Decision) of the Regional Trial Court of Bacolod City, Branch 46 (RTC) in the case filed by herein respondent Elizabeth Lagtapon (Lagtapon), entitled "Elizabeth Lagtapon v. Susan Yap" and docketed as Civil Case (CC) No. 97-9991. The Facts The factual antecedents, as summarized by the CA, are as follows: On 9 October 1997, [respondent Lagtapon] instituted a civil suit against [petitioner Yap] for a sum of money with the Regional Trial Court of Negros Occidental docketed as Civil Case No. 97-9991 and the same was raffled off to the respondent court. Summons was issued and as per return of service of summons dated 4 November 1997 prepared by the process server of the respondent court in the person of Ray R. Precioso, he served on November 4, 1997 the summons on [petitioner Yap] who, however, refused to acknowledge receipt thereof, thus, compelling him to tender the same and left (sic) a copy thereof for her.

As no answer was filed, [respondent Lagtapon] filed a motion to declare [petitioner Yap] in default dated 16 December 1997. The said motion was granted by the respondent court in an order issued on 12 January 1998 declaring [petitioner Yap] in default and allowing [respondent Lagtapon] to present her evidence ex-parte on 9 February 1998. Accordingly, [respondent Lagtapon] adduced evidence in her favor ex-parte. On 10 February 1998, the respondent court issued an order admitting the documentary exhibits offered by [respondent Lagtapon]. On 12 February 1998, the respondent court rendered the challenged Decision in favor of [respondent Lagtapon] and against [petitioner Yap]. Under date of 6 March 1998, [respondent Lagtapon] filed a motion for execution which was favorably acted upon by the respondent court through an order of 21 May 1998. The Ex-Officio Provincial Sheriff for Negros Occidental issued a notice of sale on execution dated 25 September 2000 setting the auction sale of petitioner's property on 17 October 2000. The property of petitioner that was put up for execution sale consists of a parcel of land identified as Lot 11, Block 2 of the subdivision plan (LRC) Psd91608 covered by Transfer Certificate of Title No. T-110467 situated at Herminia Street, Villa Valderranm (sic), Barangay Mandalagan, Bacolod City. On or about 11 October 2000, Joey de la Paz, to whom [petitioner Yap] mortgaged the same property, informed her that when he asked his secretary to secure a copy of the title covering the property from the Registry of Deeds of Bacolod City, it was found out that annotated on the title is a notice of embargo relative to Civil Case No. 97-9991, that a notice of sale on execution had already been issued and that the said property was scheduled to be sold at auction on 17 October 2000. Immediately upon receiving such information, [petitioner Yap] proceeded to the Hall of Justice to verify the truthfulness thereof. It was only then that she discovered that she was sued by [respondent Lagtapon] and a judgment by default against her had long been issued.6 Proceeding from such developments, petitioner Yap filed the subject Petition for Annulment with the CA, assailing the RTC Decision on the ground that Summons was not validly served on her, which thus prevented the RTC from acquiring jurisdiction over her person.7 In particular, petitioner Yap alleged that at the time Summons was

allegedly served on November 4, 1997 (as evidenced by the Return of Service), 8 she was not residing in either of the addresses supplied by respondent Lagtapon in her Complaint,9 namely: (i) Herminia Street, Villa Valderama, Bacolod City, and (ii) Frankfurt Street, Jesusa Heights, Bacolod City. 10 With respect to the first address, petitioner Yap claimed that while she used to reside therein, she had already moved out from the said address sometime in June 1997 and started leasing out the same on July 1998.11 Hence, the Summons could not have been served on her on November 4, 1997, as she had already vacated from the said address by then. Meanwhile, regarding the second address, petitioner Yap averred that she never resided at any such place. 12 Allegedly, at the time of the service of Summons, she was residing somewhere else, specifically in "Frankfurt Street, Sunshine Valley Subdivision, Barangay Estefania, Bacolod City" (as compared to "Frankfurt Street, Hesusa (sic) Heights, Bacolod City"), which she started leasing from June 1997 (upon vacating the first address) until September 1999. 13 Simply put, petitioner Yap wholly denied the fact of service of Summons, as reflected in the Return of Service dated November 4, 199714 accomplished by the RTC's process server, Roy R. Precioso (Precioso). Notably, it was stated in the said Return that the Summons, together with a copy of the Complaint and its annexes, was served personally on petitioner Yap on November 4, 1997, at about 4:35 p.m., and that the latter refused to sign the same, which prompted Precioso to tender and leave a copy of the Summons with petitioner Yap. 15 While the place of service was not indicated in the Return, it should be noted that Precioso subsequently executed an Affidavit dated February 21, 2001, attesting to the fact that he served the Summons on petitioner Yap at "Frankfurt Street, Hesusa Village, Bacolod City". 16

Petitioner Yap likewise categorically denied receipt of the Motion to Declare in Default dated December 16, 1997. 17 As indicated in the records, the said Motion was served on petitioner Yap via JRS Express mail, evidenced by JRS Express Cash Airbill No. 734216, and that a certain "Tommy Lim" received it. 18 Petitioner Yap again claimed that she could not have received the same as she was never a resident in the address indicated in the said Airbill, which was also "Frankfurt Street, Hesusa (sic) Heights, Bacolod City".19

On the other hand, respondent Lagtapon denied all the factual allegations in the Petition for Annulment to the effect that petitioner Yap was never served with Summons on the date indicated, and claimed that petitioner Yap was indeed aware of the proceedings, as borne out by the records of the RTC.20 In her Answer to Petition for Annulment of Judgment dated March 7, 2001,21 respondent Lagtapon also raised the following grounds for the dismissal of the said Petition: (i) assuming arguendo that petitioner Yap did not receive the RTC Decision, she was constructively notified thereof as well as the corresponding Writ of Execution dated May 22, 1998 issued by the RTC when the Provincial Sheriff of Negros Occidental caused the registration and annotation of the Notice of Embargo or Levy at the back of petitioner Yap's Transfer Certificate of Title No. T- 110467.22 Hence, respondent Lagtapon argued that petitioner Yap's failure to file a petition for relief from judgment within sixty (60) days from the time of the said annotation on May 26, 1998 rendered her Petition for Annulment dismissible;23 (ii) petitioner Yap failed to file a petition for certiorari under Rule 65 to question the Order declaring her in default, the RTC Decision, or the Notice of Embargo or Levy;24 and (iii) there was no extrinsic fraud extant from the records of the case that would serve as basis for the Petition for Annulment under Rule 47 of the Rules of Court. 25 Ruling of the CA In the questioned Decision, the CA denied the Petition for Annulment and upheld the validity of the service of Summons on petitioner Yap. The CA held that petitioner Yap's evidence failed to rebut the presumption of regularity, i.e., that she failed to satisfactorily establish the fact that she was residing elsewhere during the time of the service of Summons, contrary to what was stated in the Return of Service. 26 In her Motion for Reconsideration dated April 15, 2008,27 petitioner Yap claimed that the CA "overlooked very important documents which, if taken into consideration, could materially affect the decision it first arrived at".28 In its Resolution dated February 23, 2011, the CA denied petitioner Yap's Motion for Reconsideration for lack of merit.29 Hence, this Petition. Proceedings before the SC On June 9, 2011, respondent Lagtapon filed a Motion to Dismiss,30 which was noted without action by the Court in its Resolution dated October 19, 2011.31 Thus, in her Comment dated January 12, 2012,32

respondent Lagtapon raised the sole issue of whether the remedy of Annulment of Judgment could still be availed of by petitioner Yap on the ground that "[ e ]xtrinsic [ f]raud cannot be a valid ground if it was not availed of in a Motion for [New] Trial or Petition [f]or Relief of Judgment".33 Accordingly, Yap filed her Reply dated September 1 7, 2012, 34 which was duly noted by the Court in a Resolution dated October 22, 2012.35 Issue At issue in this case is whether the CA committed reversible error in dismissing the Petition for Annulment and ruling that the RTC had validly acquired jurisdiction over petitioner Yap's person through service of summons. The Court's Ruling The Petition is denied. In resolving the principal issue of this case, the Court shall separately discuss the matters raised by the opposing sides according to their nature. I. Procedural Matters Questions of fact are not cognizable in a Rule 45 petition. At its core, the instant controversy hinges on whether Summons was validly served upon petitioner Yap or not. As discussed above, the parties' claims are diametrically opposing: on the one hand, petitioner Yap denies any service of Summons on her person, while on the other, the RTC's process server, Precioso, attests to having served Summons on petitioner Yap herself. Resolving this issue would thus necessitate a re-examination and re-weighing of the evidence on record. In this regard, it has been repeatedly held by the Court that an appeal by certiorari under Rule 45 of the Rules is limited in its scope - the Court may only entertain questions of law36 as jurisdiction over factual questions has been devolved to the trial courts as a matter of efficiency and practicality in the administration of justice. As an arbiter of laws, the Court is not expected to recalibrate the evidence already considered by inferior courts. 37 More importantly, to the extent that the evidence on record amply support the factual findings of the trial court, such findings are deemed conclusive and will not be disturbed on appeal. 38 On this score alone, the Petition, for raising factual

issues, may already be denied pursuant to the Court's discretionary appellate jurisdiction. The remedy of annulment of judgment under Rule 47 of the Rules is based either on extrinsic fraud or lack of jurisdiction. In her Comment dated January 12, 2012, respondent Lagtapon insists that the instant Petition should be dismissed on the ground that the same is based on extrinsic fraud and that petitioner Yap' s failure to avail of the remedies of new trial or petition for relief from judgment on such ground bars a resort to the remedy of annulment of judgment. 39 Respondent Lagtapon's argument is misplaced. The remedy of annulment of judgment, embodied in Rule 4 7 of the Rules, is extraordinary in character, and does not so easily and readily lend itself to abuse by parties aggrieved by final judgments. The grounds for a Rule 4 7 petition are: (i) extrinsic fraud and (ii) lack of jurisdiction. 40 Extrinsic fraud cannot be a valid ground if it had been availed of, or could have been availed of, in a motion for new trial or petition for relief. 41 On the other hand, lack of jurisdiction means either lack of jurisdiction over the subject matter or nature of the action, or lack of jurisdiction over the person of the defendant. 42 In the Petition filed by petitioner Yap, she did not specify her exclusive reliance on extrinsic fraud as basis of her Petition under Rule 47. To be precise, petitioner Yap's claim of defective service of Summons brings to fore the lack of jurisdiction of the RTC over her person.43 Moreover, the Court agrees with the position of petitioner Yap that she could no longer avail of the remedies of new trial or petition for relief from judgment because, as borne out by the records, she alleged to have become aware of the RTC Decision on October 11, 2000 at the latest, at the time when a writ of execution had already been issued.44 Clearly, the remedies of appeal or new trial were no longer available to petitioner Yap. Under the Rules, execution shall issue upon the expiration of the period to appeal therefrom, if no appeal has been duly perfected. 45 In the same manner, a motion for new trial can only be filed within the period for taking an appeal.46 Under the present circumstances, by the time petitioner Yap acquired knowledge of the proceedings, the period for perfecting an appeal had already lapsed. Likewise, the remedy of a petition for relief was

no longer available, considering that a writ of execution had already been issued as early as May 22, 1998, which was already more than six (6) months after petitioner Yap acquired knowledge of the RTC Decision.47 II. Substantive Matters Be that as it may, even if the foregoing rules were to be relaxed in the interest of substantial justice, the Court finds no reason to arrive at a conclusion different from that reached by the CA. Upon judicious review of the records, the Court rules that the CA committed no reversible error in finding that Summons had been validly served on petitioner Yap. The Court explains. It is axiomatic that a public official enjoys the presumption of regularity in the discharge of one's official duties and functions. 48 Here, in the absence of clear indicia of partiality or malice, the service of Summons on petitioner Yap is perforce deemed regular and valid. Correspondingly, the Return of Service of Precioso as process server of the RTC constitutes prima facie evidence of the facts set out therein. 49 The Return of Service states: Respectfully returned to the Officer-in-Charge of this Court the herein-attached Summons dated October 15, 1997, DULY SERVED with the following information, to wit: That on November 4, 1997 at about 4:35 p.m., the undersigned served a copy of the complaint, its annexes as well as the Summons to the defendant Susan A. Yap, personally, but she refused to sign said Summons despite the undersigned's explanation to her but nevertheless, the undersigned tendered and leave (sic) a copy for her. For the information of this Honorable Court. Bacolod City, November 4, 1997.50 (Emphasis supplied) Hence, as far as the circumstances attendant to the service of Summons are concerned, the Court has the right to rely on the factual representation of Precioso that service had indeed been made on petitioner Yap in person. A contrary rule would reduce the Court to a mere fact-finding tribunal at the expense of efficiency in the administration of justice, which, as mentioned earlier, is beyond the ambit of the Court's jurisdiction in a Rule 45 petition.

To successfully overcome such presumption of regularity, case law demands that the evidence against it must be clear and convincing; absent the requisite quantum of proof to the contrary, the presumption stands deserving of faith and credit. 51 In this case, the burden of proof to discharge such presumption lay with petitioner Yap. 52 In her Petition, petitioner Yap makes much of the failure of Precioso to include the place of service in his Return, contrary to Section 18, Rule 14 of the Rules of Court, 53 relying on the pronouncements in Santiago Syjuco, Inc. v. Castro. 54 Notably, however, the circumstances attendant in that case are not on all fours with the facts at hand. In Syjuco, which cited Delta Motor Sales Corporation v. Mangosing, 55 the service of Summons involved a juridical entity and the crux of the defect there was the process server's failure to properly identify the person served inasmuch as Section 11 of Rule 14 of the Rules provides an exclusive list of persons that may be served Summons when the defendant is a corporation. Here, the disputed service of Summons was made personally upon Yap as defendant in CC No. 97-9991 and was made pursuant to Section 6 of the said Rule. Moreover, and as previously adverted to, while such detail was indeed lacking in the said Return, the Court cannot ignore the fact that Precioso subsequently executed an Affidavit supplying the place of service, which, to the mind of this Court, constitutes substantial compliance with the Rules. On this note, the Court agrees with the following disquisition of the CA: Petitioner puts in issue the place of her residence at the time of the alleged personal service of summons on her. However it is clear from the foregoing provisions of the Rules of Court that where there is personal service of summons, the place is of no moment. The place becomes material only where the service is by substituted service for in such a case the rule requires, in explicit manner, that the summons be served only either at the defendant's residence or his office/place of business. Insofar as personal service is concerned, what matters is that the defendant has been personally put on notice regarding the institution of an action against him and was furnished with copy (sic) of the summons and the complaint. Service to be done personally does not mean that service is possible only at the defendant's actual residence. 56

This presumption of regularity accorded to Precioso' s Return of Service of Summons was, however, according to Petitioner Yap, sufficiently rebutted by the following pieces of evidence:57 (i) Affidavits of her neighbors attesting to the fact that Yap had been residing in "Frankfurt Street, Sunshine Valley Subdivision, Barangay Estefania, Bacolod City" beginning June 1997·58 (ii) Utility receipts bearing the name of her alleged landlord, Liberato Reyes; 59 and (iii) Mail matters from the RTC (i.e., Orders dated January 12, 1998 and February 10, 1998) in envelopes which had handwritten notations reading "UNCLAIMED". 60 Directly addressing this argument, the CA, in the questioned Decision, ruled that the above evidence was insufficient to support the claim that petitioner Yap was residing elsewhere at the time of the service of Summons and therefore inadequate to overcome the presumption of regularity. 61 The Court agrees. With respect to item (i), petitioner Yap would want the Court to rely on statements allegedly made by petitioner Yap's neighbors with respect to a purported lease contract between petitioner Yap and her landlord in lieu of a statement from the landlord himself. In the first place, the records are bereft of any lease contract involving the residence in the Sunshine Valley address. The Court affirms the following observations of the CA on this matter: Petitioner contends that when the summons was allegedly served on her on 4 November 1997, she was not residing at both addresses given by private respondent but at Frankfurt Street, Sunshine Valley Subdivision. The said alleged fact was not established by petitioner to the Court's satisfaction. No contract of lease covering her lease of the said place was given by petitioner. To prove the alleged lease, mere affidavits of alleged neighbors of her in the said area were submitted. The affidavits of petitioner's witnesses were executed in October 2000 and both affiants made the impression that they could very well recall that petitioner's lease of the residential unit started in June of 1997 (and not other month of that year, for that matter). Nothing in said affidavits would explain why both affiants were able to retain that particular time in their minds as the date when petitioner commenced her lease of the aforesaid dwelling place. No affidavit from the supposed lessor was submitted. Petitioner put as an excuse her former lessor's reluctance to get involved in the case. To the mind of the Court,

the refusal of the said lessor to execute an affidavit for the alleged term, only casts more doubt on petitioner's claim to this effect. W[e] also wonder why petitioner agreed to lease the said place from Mr. Reyes from June, 1997 up to September, 1999 without any written lease contract.1âwphi1 Petitioner herself is a lessor and she is that kind whose lease of her property even for a short time is covered by a written agreement as illustrated by two samples of such contract she attached to her petition involving her property at Herminia Street, one is for one year while the other, for a shorter term of six (6) months.62 (Emphasis supplied) While it is true that the trial court cannot dictate what particular evidence the parties must present in order to prove their respective cases, the fact remains that petitioner Yap is still bound to present clear and convincing evidence to support her claims. Proceeding therefrom, the Court remains unconvinced that petitioner Yap had not and could not have been served Summons as specifically detailed in the Return of Service. As to item (ii), petitioner Yap implores the Court to examine Central Negros Electric Coop., Inc. Provisionary Receipt No. 156556 dated November 12, 199763 and BACIWA Official Receipt No. 1738502 dated September 8, 199764 that are attached to a Letter dated February 16, 199865 purportedly written by Liberato Reyes and addressed to petitioner Yap. However, examining the above documents, the Court finds them severely lacking in establishing petitioner Yap's residence in the Sunshine Valley address. First of all, both receipts do not indicate any address corresponding to the purported utility expenses incurred by petitioner Yap during the alleged lease. In the same manner, no address was mentioned in the Letter dated February 16, 1998 - what the Letter simply contained were vague statements regarding the collection of rentals. Based on the said documents, it would be impossible for the Court to determine where petitioner Yap had her residence at the time Summons was served on her person. Granting that there was indeed a lessor-lessee relationship between petitioner Yap and Liberato Reyes, there is no showing that the property subject of the lease was "Frankfurt Street, Sunshine Valley Subdivision, Barangay Estefania, Bacolod City" and no place else. While it may be true that Liberato Reyes was a lessor of petitioner Yap, there is no way for this Court to

know which address the latter was occupying specifically, for it may very well be that Liberato Reyes had other properties at the time the alleged lease was entered into. Moreover, that the handwritings thereon were indeed those of Liberato Reyes was not even satisfactorily established. Most significant, however, is the glaring fact that the Letter was dated several months after the service of Summons on November 4, 1997. As pointedly stressed by the CA, that petitioner Yap was residing in a place owned by Liberato Reyes on February 16, 1998 is immaterial in proving her residence at an earlier time, i.e., November 4, 1997.66 Taken together, the above pieces of evidence do not, in any respect, tend to establish the fact that petitioner Yap was not served Summons on November 4, 1997 in "Frankfurt Street, Hesusa Village, Bacolod City".67 Finally, as regards item (iii), the Court finds that the mail matters from the RTC bearing handwritten notations "UNCLAIMED" are highly inconclusive to establish her non-residence at the Hesusa Village address, let alone her residence at the Sunshine Valley address, considering that they involved orders dated after the service of Summons on November of 1997. On the other hand, what is present in the records is evidence of receipt of the Motion to Declare in Default dated December 16, 1997 via JRS Express by a certain "Tommy Lim," albeit denied by petitioner Yap.68 All told, the Court hereby upholds the finding of the CA in its questioned Decision that petitioner Yap' s evidence does not constitute clear and convincing evidence to overturn the presumption of regularity attendant to the Return of Service. Following Umandap v. Sabio, Jr., 69 self-serving assertions made by an aggrieved party are insufficient to disregard the statements made in the sheriff's certificate after service of Summons. In light of petitioner Yap's failure to rebut such presumption, the Court finds that the RTC properly acquired jurisdiction over petitioner Yap's person, which renders the RTC Decision valid. Accordingly, the CA correctly dismissed the subject Petition for Annulment. WHEREFORE, the foregoing premises considered, the Court resolves to DENY the instant Petition and AFFIRM in toto the Decision dated July 27, 2006 and Resolution dated February 23, 2011 of the Court of Appeals - Twentieth (20th) Division in CA-G.R. SP No. 61944. SO ORDERED.

ALFREDO BENJAMIN S. CAGUIOA Associate Justice WE CONCUR: MARIA LOURDES P.A. SERENO Chief Justice Chairperson TERESITA J. LEONARDOMARIANO C. DEL CASTILLO DE CASTRO Associate Justice Associate Justice ESTELA M. PERLAS-BERNABE Associate Justice CERTIFICATION Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. MARIA LOURDES P.A. SERENO Chief Justice Footnotes 1 Rollo, pp. 12-31. 2 Id. at 32-41. Penned by Associate Justice Priscilla BaltazarPadilla, with Associate Justices Pampio A. Abarintos and Marlene Gonzales-Sison concurring. 3 Id. at 42-43. Penned by Associate Justice Edgardo L. Delos Santos, with Associate Justices Agnes Reyes-Carpio and Eduardo B. Peralta, Jr. concurring. 4 Id. at 44-57. 5 Id. at 68-72. Penned by Presiding Judge Emma C. Labayen. 6 Id. at 33-35. 7 Id. at 54. 8 Id. at 119-120. 9 Id. at 75-80. 10 Id. at 75. 11 Id. at 35. 12 Id. 13 ld. at 55. 14 Id. at 82. 15 Id.

16

Id. at 146. Annex "4" of the Answer to Petition for Annulment of Judgment dated March 7, 2001. 17 Id. at 48. 18 Id. 19 Id. 20 Id.atl20-121,128. 21 Id.atll8-140. 22 Id. at 129-130. 23 Id. at 129-131. 24 Id. at 131-132. 25 Id. at 132 26 See id. at 37, 40. 27 Id. at 147-153. 28 Id. at 147. 29 Id. at 42-43. 30 Id. at 162-165. 31 Id. at 169. 32 Id. at 171-175. 33 Id. at 171. 34 Id. at 180-A to 183. 35 Id. at 185. 36 RULES OF COURT, Rule 45, Section 1. 37 See Miro v. V da. De Erederos, 721 Phil. 772, 785-787 (2013). 38 See id. at 784. 39 See rollo, pp. 171-172 40 RULES OF COURT, Rule 47, Section 2. 41 Id. 42 Yuk Ling Ong v. Co, G.R. No. 206653, February 25, 2015, 752 SCRA 42, 48. 43 See rollo, p. 27. 44 Id. at 28. 45 RULES OF COURT, Rule 39, Section 1. 46 Id. at Rule 37, Section I. 47 Rollo, p. 28. 48 See Gatmaitan v. Gonzales, 525 Phil. 658, 671 (2006). 49 See Guanzon v. Arradaza, 539 Phil. 367, 375 (2006). 50 Rollo, p. 82. 51 Guanzon v. Arradaza, supra note 49.

52

See Office of the Ombudsman v. Manalastas, G.R. No. 208264, July 27, 2016, p. 8. 53 Rollo, p. 22 54 256 Phil. 621 (1989). 55 162 Phil. 804 (1976). 56 Rollo, p. 37. 57 Id. at 26-27. 58 Id. at 24, 83-84. 59 Id. at 24, 86-87. 60 Id. at 25-26, 106 and 108. 61 See id. at 37. 62 Id. at 37-38. 63 Id. at 86. 64 Id. at 87. 65 Id. at 85. 66 See id. at 38. 67 Id. at 146. Annex "4" of the Answer to Petition for Annulment of Judgment dated March 7, 2001. 68 Id. at 48. 69 393 Phil. 657, 667 (2000).

Notes:

Ampil v. Ombudsman G.R. No. 192685

SECOND DIVISION July 31, 2013 DECISION

PEREZ, J.: No less than the Constitution maps out the wide grant of investigatory powers to the Ombudsman.1 Hand in hand with this bestowal, the Ombudsman is mandated to investigate and prosecute, for and in behalf of the people, criminal and administrative offenses committed by government officers and employees, as well as private persons in conspiracy with the former.2 There can be no equivocation about this power-and-duty function of the Ombudsman. Before us are consolidated petitions separately filed by Oscar R. Ampil (Ampil): (1) one is for certiorari under Rule 65 of the Rules of Court docketed as G.R. No. 192685; and (2) the other is for review on certiorari under Rule 45 of the Rules of Court docketed as G.R. No. 199115. Challenged in the petition for certiorari is the Resolution3 of the Ombudsman in OMB-C-C-07-0444-J, dismissing the criminal complaint filed by Ampil against respondents Policarpio L. Espenesin (Espenesin), Francis Serrano (Serrano), Yvonne S. Yuchengco (Yuchengco) and Gema O. Cheng (Cheng), and the Order4 denying Ampil’s motion for reconsideration thereof. Ampil’s complaint charged respondents with Falsification of Public Documents under Article 171(6) of the Revised Penal Code and violation of Sections 3(a) and (e) of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act, as amended. The appeal by certiorari, on the other hand, assails the Decision of the Court of Appeals in CA G.R. SP No. 113171, which affirmed the Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J on the administrative aspect of the mentioned criminal complaint for Falsification and violation of Republic Act No. 3019 against the Registrar of Deeds, respondent Espenesin. Initially, the Ombudsman issued a Decision dated 30 April 2008, finding Espenesin guilty of Simple Misconduct and meting on Espenesin the penalty of one (1) month suspension. On motion for reconsideration of Ampil, the Ombudsman favored Espenesin’s arguments in his Opposition, and recalled the one-month suspension the Ombudsman had imposed on the latter. These consolidated cases arose from the following facts.

On 9 November 1995, ASB Realty Corporation (ASB) and Malayan Insurance Company (MICO) entered into a Joint Project Development Agreement (JPDA) for the construction of a condominium building to be known as "The Malayan Tower." Under the JPDA, MICO shall provide the real property located at the heart of the Ortigas Business District, Pasig City, while ASB would construct, and shoulder the cost of construction and development of the condominium building. A year thereafter, on 20 November 1996, MICO and ASB entered into another contract, with MICO selling to ASB the land it was contributing under the JPDA. Under the Contract to Sell, ownership of the land will vest on ASB only upon full payment of the purchase price. Sometime in 2000, ASB, as part of the ASB Group of Companies, filed a Petition for Rehabilitation with Prayer for Suspension of Actions and Proceedings before the Securities and Exchange Commission (SEC). As a result, the SEC issued a sixty (60) day Suspension Order (a) suspending all actions for claims against the ASB Group of Companies pending or still to be filed with any court, office, board, body, or tribunal; (b) enjoining the ASB Group of Companies from disposing of their properties in any manner, except in the ordinary course of business, and from paying their liabilities outstanding as of the date of the filing of the petition; and (c) appointing Atty. Monico V. Jacob as interim receiver of the ASB Group of Companies.5 Subsequently, the SEC, over the objections of creditors, approved the Rehabilitation Plan submitted by the ASB Group of Companies, thus: PREMISES CONSIDERED, the objections to the rehabilitation plan raised by the creditors are hereby considered unreasonable. Accordingly, the Rehabilitation Plan submitted by petitioners is hereby APPROVED, except those pertaining to Mr. Roxas’ advances, and the ASB-Malayan Towers. Finally, Interim Receiver Mr. Fortunato Cruz is appointed as Rehabilitation Receiver.6 (Emphasis supplied). Because of the obvious financial difficulties, ASB was unable to perform its obligations to MICO under the JPDA and the Contract to Sell. Thus, on 30 April 2002, MICO and ASB executed their Third contract, a Memorandum of Agreement (MOA),7 allowing MICO to assume the entire responsibility for the development and completion of The Malayan Tower. At the time of the execution of the MOA, ASB had already paid MICO ₱427,231,952.32 out of the ₱640,847,928.48 purchase price of the realty.8

The MOA specifies the entitlement of both ASB and MICO to net saleable areas of The Malayan Tower representing their investments. It provides, in pertinent part: Section 4. Distribution and Disposition of Units. (a) As a return of its capital investment in the Project, each party shall be entitled to such portion of all the net saleable area of the Building that their respective contributions to the Project bear to the actual construction cost. As of the date of the execution hereof, and on the basis of the total costs incurred to date in relation to the Remaining Construction Costs (as defined in Section 9(a) hereof), the parties shall respectively be entitled to the following (which entitlement shall be conditioned on, and subject to, adjustments as provided in sub-paragraph (b) of Section 4 in the event that the actual remaining cost of construction exceeds the Remaining Construction Cost): (i) MICO – the net saleable area particularly described in Schedule 2 hereof. (ii) ASB – the following net saleable area: (A) the net saleable area which ASB had pre-sold for an aggregate purchase price of ₱640,085,267.30 as set forth in Schedule 1 (including all paid and unpaid proceeds of said presales); (B) the net saleable area particularly described in Schedule 3 hereof which shall be delivered to ASB upon completion of the Project; and, (C) provided that the actual remaining construction costs do not exceed the Remaining Construction Cost, the net saleable area particularly described in Schedule 4 hereof which shall be delivered to ASB upon completion of the Project and determination of its actual construction costs. If the actual remaining construction costs exceed the Remaining Construction Cost, sub-paragraph (b) of this Section 4 shall apply. (b) In the event that the actual remaining construction costs exceed the Remaining Construction Cost as represented and warranted by ASB to MICO under Section 9(a) hereof, and MICO pays for such excess, the pro-rata sharing in the net saleable area of the Building, as provided in sub-paragraph (a) of this Section 4 shall be adjusted accordingly. In such event,

MICO shall be entitled to such net saleable area in Schedule 4 that corresponds to the excess of the actual remaining cost over the Remaining Construction Cost. (c) To ensure the viability of the Project, the parties agree on a single pricing system, which MICO shall have the exclusive right to fix and periodically adjust based on prevailing market conditions in consultation with, but without need of consent of, ASB, for each party’s primary sale or other disposition of its share in the net saleable area of the Building. In accordance with the immediately preceding provision, MICO hereby adopts the selling prices set forth in Schedule 5 hereof. Each party or its officers, employees, agents or representatives shall not sell or otherwise dispose any share of said party in the net saleable area of the Building below the prices fixed by MICO in accordance with this Section 4 (c). MICO shall have the exclusive right to adopt financing and discounting schemes to enhance marketing and sales of units in the Project and such right of MICO shall not be restricted or otherwise limited by the foregoing single pricing system provision. (d) Each party shall bear the profits earned and losses incurred as well as any and all taxes and other expenses in connection with the allocation or sale of, or other transaction relating to, the units allotted to each party.9 On 11 March 2005, Condominium Certificates of Title (CCTs) for 38 units10 and the allotted parking spaces were issued in the name of ASB. On even date but prior to its release, another set of CCTs covering the same subject units but with MICO as registered owner thereof, was signed by Espenesin in his capacity as Registrar of Deeds of Pasig City. Notably, Espenesin had likewise signed the CCTs which were originally issued in ASB’s name. On 2 April 2006, counsel for ASB wrote Espenesin calling his attention to the supposed amendment in the CCTs which he had originally issued in ASB’s name.11 Counsel for ASB demanded that Espenesin effect in the second set of CCTs, the registration of the subject units in The Malayan Tower back to ASB’s name. On 17 May 2006, Espenesin replied and explained, thus: The registration of the Malayan-ASB Realty transaction, from its inception up to the issuance of titles, were all handled by respondent Atty. Francis Serrano. He therefore appeared and we have considered him the legitimate representative of both parties (sic). His

representation, we gathered, covers the interest of both MICO and ASB in as far as the titling of the condominium units are concerned. Sometime ago Serrano requested that condominium titles over specified units be issued in consonance with the sharing in the joint venture MOA. Titles were correspondingly issued as per request, some in the name of MICO and some in the name of ASB. Before its release to the parties, Atty. Serrano came back and requested that some titles issued in the name of ASB be changed to MICO because allegedly there was error in the issuance. Believing it was a simple error and on representation of the person we came to know and considered the representative of both parties, we erased the name ASB Realty Corporation on those specified titles and placed instead the name Malayan Insurance Company. To our mind, the purpose was not to transfer ownership but merely to rectify an error committed in the issuance of titles. And since they were well within our capacity to do, the titles not having been released yet to its owner, we did what we believed was a simple act of rectifying a simple mistake.12 After learning of the amendment in the CCTs issued in ASB’s name, Ampil, on 23 January 2007, wrote respondents Yuchengco and Cheng, President and Chief Financial Officer of MICO, respectively, introducing himself as an unsecured creditor of ASB Holdings, Inc., one of the corporations forming part of the ASB Group of Companies.13 Ampil averred that MICO had illegally registered in its name the subject units at The Malayan Tower which were reserved for ASB under the MOA, and actually, already registered in ASB’s name with the Register of Deeds of Pasig City. Ampil pointed out that the "condominium units should have benefited him and other unsecured creditors of ASB because the latter had categorically informed them previously that the same would be contributed to the Asset Pool created under the Rehabilitation Plan of the ASB Group of Companies." Ultimately, Ampil demanded that Yuchengco and Cheng rectify the resulting error in the CCTs, and facilitate the registration of the subject units back to ASB’s name. Respondents paid no heed to ASB’s and Ampil’s demands. As previously adverted to, Ampil charged respondents with Falsification of Public Documents under Article 171(6) of the Revised Penal Code and violation of Sections 3(a) and (e) of Republic Act No. 3019 before the Office of the Ombudsman, alleging the following:

1. Respondents, in conspiracy, erased the name of ASB, and intercalated and substituted the name of MICO under the entry of registered owner in the questioned CCTs covering the subject units of The Malayan Tower; 2. The alterations were done without the necessary order from the proper court, in direct violation of Section 10814 of Presidential Decree No. 1529; 3. Respondents violated Article 171(6) of the Revised Penal Code by: 3.1 Altering the CCTs which are public documents; 3.2 Effecting the alterations on genuine documents; 3.3 Changing the meaning of the CCTs with MICO now appearing as registered owner of the subject units in Malayan Tower; and 3.4 Effectively, making the documents speak something false when ASB is the true owner of the subject units, and not MICO. 4. Ampil, as unsecured creditor of ASB, was unjustly prejudiced by the felonious acts of respondents; 5. Respondents violated Sections 3(a) and (e) of Republic Act No. 3019: 5.1 Respondent Espenesin, as Registrar of the Pasig City Registry of Deeds, committed an offense in connection with his official duties by allowing himself to be persuaded, induced or influenced by respondent Serrano into altering the questioned CCTs; and 5.2 The actions of respondent Espenesin demonstrate manifest partiality, evident bad faith and/or, at the least, gross inexcusable negligence. 6. Respondents Yuchengco and Cheng, being responsible officers of MICO, as principals by inducement and conspirators of Espenesin and Serrano, are likewise liable for falsification of the CCTs and violation of Sections 3(a) and (e) of Republic Act No. 3019.15 As required by the Ombudsman, respondents filed their counteraffidavits: Espenesin and Serrano filed individually, while Yuchengco and Cheng filed jointly. Respondents’ respective counter-affidavits uniformly denied petitioner’s charges and explicated as follows: Respondent Espenesin countered, among others, (i) that their intention was only to cause the necessary rectification on certain

errors made on the CCTs in issue; (ii) that since the CCTs were not yet issued and released to the parties, it is still within his authority, as part of the registration process, to make the necessary amendments or corrections thereon; (iii) that no court order would be necessary to effect such changes, the CCTs still being within the control of the Register of Deeds and have not yet been released to the respective owners; (iv) that the amendments were made not for the purpose of falsifying the CCTs in issue but to make the same reflect and declare the truth; and (v) that he merely made the corrections in accordance with the representations of respondent Serrano who he believed to be guarding and representing both the interests of MICO and ASB. Respondent Serrano, on the other hand, argued: (i) that the units in issue are not yet owned by ASB; (ii) that these units were specifically segregated and reserved for MICO in order to answer for any excess in the estimated cost that it will expend in the completion of the Malayan Tower; (iii) that ASB is only entitled to these reserved units only after the Malayan Tower is completed and that the units are not utilized to cover for the increase in the cost expended by MICO pursuant to Section 4(c) of the MOA; (iv) that the Malayan Tower was still incomplete at the time when the alterations were made on the CCT, hence, the claim of ownership of ASB over the reserved units is premature and totally baseless; (v) that prior to the fulfillment of the resolutory condition, that is, after the completion of the Malayan Tower and there remains a balance in the Remaining Construction Cost, the units still rightfully belongs to MICO; and (vi) that the alteration was made merely for the purpose of correcting an error. Respondents Cheng and Yuchengco, while adopting the foregoing arguments of Espenesin and Serrano, further averred that: (i) Ampil has no legal personality to file this suit, he being merely an unsecured creditor of ASB whose interest was not definitively shown to have been damaged by the subject controversy; (ii) that their participation as respondents and alleged co-conspirators of Serrano and Espenesin was not clearly shown and defined in the complaint; (iii) the CCTs issued in the name of ASB have not yet been entered in the Registration Book at the time when the alterations were effected, hence, the same could still be made subject of appropriate amendments; (iv) that the CCTs in issue named in favor of ASB were mere drafts and cannot legally be considered documents within the strict definition of the law; (v) that court order authorizing to amend a title is necessary only if the deed or document sought to be registered

has already been entered in the registration book; and (vi) that MICO is the duly registered owner of the land on which Malayan Tower stands and ASB was merely referred to as the developer.16 Thereafter, the Ombudsman issued the assailed Resolution in G.R. No. 192685 dismissing Ampil’s complaint. For the Ombudsman, the resolution of whether respondents falsified the CCTs must be prefaced by a determination of who, between MICO and ASB, is the rightful owner of the subject units. The Ombudsman held that it had no authority to interpret the provisions of the MOA and, thus, refrained from resolving the preliminary question of ownership. Given the foregoing, the Ombudsman was hard pressed to make a categorical finding that the CCTs were altered to speak something false. In short, the Ombudsman did not have probable cause to indict respondents for falsification of the CCTs because the last element of the crime, i.e., that the change made the document speak something false, had not been established. Significantly, the Ombudsman did not dispose of whether probable cause exists to indict respondents for violation of Sections 3(a) and (e) of Republic Act No. 3019. Ampil filed a Motion for Reconsideration. However, in yet another setback, the Ombudsman denied Ampil’s motion and affirmed the dismissal of his complaint. On the administrative litigation front and as previously narrated, the Ombudsman found Espenesin liable for Simple Misconduct. However, on motion for reconsideration of Ampil praying for a finding of guilt against Espenesin for Grave Misconduct and Dishonesty, the Ombudsman reconsidered its earlier resolution and recalled the onemonth suspension meted on Espenesin. Thereafter, Ampil filed a petition for review under Rule 43 of the Rules of Court before the appellate court. And as already stated, the appellate court affirmed the Ombudsman’s resolution absolving Espenesin of not just Grave Misconduct and Dishonesty, but also of Simple Misconduct. Hence, this dual recourse by Ampil: first, alleging grave abuse of discretion in the Ombudsman’s failure to find probable cause to indict respondents for Falsification of Public Documents under Article 171(6) of the Revised Penal Code, and for their commission of corrupt practices under

Sections 3(a) and (e) of Republic Act No. 3019; and second, raising grievous error of the Court of Appeals in affirming the Ombudsman’s absolution of Espenesin from administrative liability. To obviate confusion, we shall dispose of the first issue, i.e., whether probable cause exists to indict respondents for Falsification of Public Documents under Article 171(6) of the Revised Penal Code and for their commission of corrupt practices under Sections 3(a) and (e) of Republic Act No. 3019. Despite the Ombudsman’s categorical dismissal of his complaint, Ampil is adamant on the existence of probable cause to bring respondents to trial for falsification of the CCTs, and for violation of Sections 3(a) and (e) of Republic Act No. 3019. In fact, he argues that Espenesin has been held administratively liable by the Ombudsman for altering the CCTs. At the time of the filing of G.R. No. 192685, the Ombudsman had not yet reversed its previous resolution finding Espenesin liable for simple misconduct. He insists that the admission by respondents Espenesin and Serrano that they altered the CCTs should foreclose all questions on all respondents’ (Espenesin’s, Serrano’s, Yuchengco’s and Cheng’s) liability for falsification and their commission of corrupt practices, under the Revised Penal Code and Republic Act No. 3019, respectively. In all, Ampil maintains that the Ombudsman’s absolution of respondents is tainted with grave abuse of discretion. G.R. No. 192685 is partially impressed with merit. Accordingly, we find grave abuse of discretion in the Ombudsman’s incomplete disposition of Ampil’s complaint. That the Ombudsman is a constitutional officer duty bound to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient"17 brooks no objection. The Ombudsman’s conduct of preliminary investigation is both power and duty. Thus, the Ombudsman and his Deputies, are constitutionalized as protectors of the people, who "shall act promptly on complaints filed in any form or manner against public officials or employees of the government x x x, and shall, x x x notify the complainants of the action taken and the result thereof."18 The raison d'être for its creation and endowment of broad investigative authority is to insulate the Office of the Ombudsman 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 execution of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers.19 Plainly, the Ombudsman has "full discretion," based on the attendant facts and circumstances, to determine the existence of probable cause or the lack thereof.20 On this score, we have consistently hewed to the policy of non-interference with the Ombudsman’s exercise of its constitutionally mandated powers.21 The Ombudsman’s finding to proceed or desist in the prosecution of a criminal case can only be assailed through certiorari proceedings before this Court on the ground that such determination is tainted with grave abuse of discretion which contemplates an abuse so grave and so patent equivalent to lack or excess of jurisdiction.22 However, on several occasions, we have interfered with the Ombudsman’s discretion in determining probable cause: (a) To afford protection to the constitutional rights of the accused; (b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (c) When there is a prejudicial question which is sub judice; (d) When the acts of the officer are without or in excess of authority; (e) Where the prosecution is under an invalid law, ordinance or regulation; (f) When double jeopardy is clearly apparent; (g) Where the court has no jurisdiction over the offense; (h) Where it is a case of persecution rather than prosecution; (i) Where the charges are manifestly false and motivated by the lust for vengeance.23 (Emphasis supplied). The fourth circumstance is present in G.R. No. 192685. While we agree with the Ombudsman’s disquisition that there is no probable cause to indict respondents for Falsification of Public Documents under Article 171(6) of the Revised Penal Code, we are puzzled why the Ombudsman completely glossed over Ampil’s charge that respondents committed prohibited acts listed in Sections 3(a) and (e) of Republic Act No. 3019. Nowhere in the Resolution or in the Order denying reconsideration thereof did the Ombudsman tackle and resolve the issue of whether respondents violated the particular provisions of Republic Act No. 3019.

Curiously, the Ombudsman docketed Ampil’s complaint-affidavit as one "for: Falsification of Public Documents and Violation of Sections 3(a) and (e) of Republic Act No. 3019, as amended."24 The Ombudsman even prefaced the Resolution, thus: "this has reference to the complaint filed by Oscar Ampil on 17 September 2007 against respondents, for Falsification of Public Documents and Violation of Sections 3, paragraphs (a) and (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended."25 The Ombudsman’s silence on the component anti-graft charges is pointed up by the specific allegations in Ampil’s complaint-affidavit that: 18. The acts of ATTY. ESPENESIN and his co-conspirators are clear violations of Section 3 paragraph (a) and/or (e) of Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act x x x; xxxx 19. On the basis of the evidence x x x and the admissions of the conspirators themselves, ATTY. ESPENESIN is liable under both pars. (a) and (e) thereof or either of the two. By maliciously and feloniously altering the subject CCT’s (sic), contrary to law and to the prejudice of ASB and Ampil, ATTY. ESPENESIN committed an offense in connection with his official duties and he admitted having done so in conspiracy with his co-respondents. x x x ATTY. ESPENESIN allowed himself to be persuaded, induced or influenced into committing such violation or offense which is the substance of par. (a) of RA 3019; 20. In committing such unauthorized and unlawful alterations on the subject CCT’s (sic), ATTY. ESPENESIN caused undue injury to ASB and to AMPIL as an unsecured creditor, who is ultimately one of the beneficiaries of said CCT from the ASSET POOL created by the SEC, and gave MICO unwarranted benefits, advantage or preference in the discharge of his official duties as Register of Deeds of Pasig City. Such acts were admitted by ATTY. ESPENESIN in his letter to ASB x x x. Such acts, taken together with his admission, indubitably show ATTY. ESPENESIN’s manifest partiality, evident bad faith and/or, at the least, his gross inexcusable negligence in doing the same; 21. ATTY. ESPENESIN is liable under Section 3 pars. (a) and/or (e) of RA 3019, as well as under Article 171 par. 6 of the RPC. ATTY.

SERRANO, YVONNE S. YUCHENGCO and (sic) GEMMA O. CHENG are also liable for violation of the said provisions of law in conspiracy with ATTY. ESPENESIN, the latter as a principal via direct participation, ATTY. SERRANO, as principal by inducement and YUCHENGCO and CHENG, also by inducement, who being responsible officers of MICO ultimately benefited from said unlawful act.26 and the pith of the Resolution which carefully and meticulously dissected the presence of the first three definitive elements of the crime of falsification under Article 171(6) of the Revised Penal Code: The first three definitive elements of the crime, albeit present, are defeated by the absence of the fourth. The respondents readily admitted that an alteration was indeed made on the CCTs in issue allegedly for the purpose of correcting a mistake in the name of the registered owner of the condominium units involved. Said alteration had obviously changed the tenor of the CCTs considering that ASB, the initially named owner, was changed into MICO. The first and third elements are undeniably present. Anent the second element, the respondents argued that the CCTs in issue were mere drafts and are not legally considered "genuine documents" within the strict definition of the law. Albeit the contention is partially true, no proof has been shown to prove that the CCTs issued in favor of ASB were mere drafts. The CCTs of ASB are obviously complete. If we are to compare it with the appearance and contents of the CCTs issued in favor of MICO, one will notice no definitive difference between the two except that one set was named in favor of ASB and the other set, in favor of MICO. Nothing is shown that will clearly prove that the former were mere drafts and the latter are the final copies. As far as the appearance of the CCTs of ASB is concerned, all appear to be complete and genuine. Proof to the contrary must be shown to prove otherwise. Delivery of the titles to the named owners is not a pre-requisite before all these CCTs can be legally categorized as genuine documents. The fact that the same had already been signed by respondent Espenesin in his capacity as Registrar of Deeds of Pasig City and the notations imprinted thereon appeared to have been entered on March 11, 2005 at 11:55 a.m. at the Registry Books of Pasig City, the CCTs in issue are bound to be treated as genuine documents drafted and signed in the regular performance of duties of the officer whose signature appears thereon.27

On the whole, the Ombudsman’s discussion was straightforward and categorical, and ultimately established that Espenesin, at the urging of Serrano, altered the CCTs issued in ASB’s name resulting in these CCTs ostensibly declaring MICO as registered owner of the subject units at The Malayan Tower. Despite the admission by Espenesin that he had altered the CCTs and the Ombudsman’s findings thereon, the Ombudsman abruptly dismissed Ampil’s complaint-affidavit, resolving only one of the charges contained therein with nary a link regarding the other charge of violation of Sections 3(a) and (e) of Republic Act No. 3019. Indeed, as found by the Ombudsman, the 4th element of the crime of Falsification of Public Documents is lacking, as the actual ownership of the subject units at The Malayan Tower has yet to be resolved. Nonetheless, this circumstance does not detract from, much less diminish, Ampil’s charge, and the evidence pointing to the possible commission, of offenses under Sections 3(a) and (e) of the Anti-Graft and Corrupt Practices Act. Sections 3(a) and (e) of Republic Act No. 3019 reads: Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. xxxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. The elements of Section 3(a) of Republic Act No. 3019 are: (1) the offender is a public officer; (2) the offender persuades, induces, or influences another public officer to perform an act or the offender allows himself to be persuaded, induced, or influenced to commit an act;

(3) the act performed by the other public officer or committed by the offender constitutes a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duty of the latter. (Emphasis supplied). Whereas, paragraph (e) of the same section lists the following elements: (1) the offender is a public officer; (2) the act was done in the discharge of the public officer’s official, administrative or judicial functions; (3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and (4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.28 As Registrar of the Registry of Deeds of Pasig City, Espenesin is tasked, among others, to review deeds and other documents for conformance with the legal requirements of registration.29 Section 10 of Presidential Decree No. 1529, Amending and Codifying the Laws Relative to Registration of Property and for Other Purposes provides: Section 10. General functions of Registers of Deeds. – The office of the Register of Deeds constitutes a public repository of records of instruments affecting registered or unregistered lands and chattel mortgages in the province or city wherein such office is situated. It shall be the duty of the Register of Deeds to immediately register an instrument presented for registration dealing with real or personal property which complies with all the requisites for registration. He shall see to it that said instrument bears the proper documentary and science stamps and that the same are properly cancelled. If the instrument is not registerable, he shall forthwith deny registration thereof and inform the presentor of such denial in writing, stating the ground or reason therefore, and advising him of his right to appeal by consulta in accordance with Section 117 of the Decree. Most importantly, a Registrar of the Registry of Deeds is charged with knowledge of Presidential Decree No. 1529, specifically Sections 5730 and 108.31 In the instant case, the elements of the offenses under Sections 3(a) and (e) of Republic Act No. 3019, juxtaposed against the functions of a Registrar of the Registry of Deeds establish a prima facie graft case against Espenesin and Serrano only. Under Section 3(a) of Republic Act No. 3019, there is a prima facie case that Espenesin, at the

urging of Serrano, allowed himself to be persuaded to alter the CCTs originally issued in ASB’s name, against the procedure provided by law for the issuance of CCTs and registration of property. In addition, under Section 3(e) of the same law, there is likewise a prima facie case that Espenesin, through gross inexcusable negligence, by simply relying on the fact that all throughout the transaction to register the subject units at The Malayan Tower he liaised with Serrano, gave MICO an unwarranted benefit, advantage or preference in the registration of the subject units. In Sison v. People of the Philippines, we expounded on Section 3(e) of Republic Act No. 3019: The third element of Section 3 (e) of RA 3019 may be committed in three ways, i.e., through manifest partiality, evident bad faith or gross inexcusable negligence. Proof of any of these three in connection with the prohibited acts mentioned in Section 3(e) of RA 3019 is enough to convict. Explaining what "partiality," "bad faith" and "gross negligence" mean, we held: "Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property." In the instant case, petitioner was grossly negligent in all the purchases that were made under his watch. Petitioner’s admission that the canvass sheets sent out by de Jesus to the suppliers already contained his signatures because he pre-signed these forms only proved his utter disregard of the consequences of his actions. Petitioner also admitted that he knew the provisions of RA 7160 on personal canvass but he did not follow the law because he was merely following the practice of his predecessors. This was an admission of a mindless disregard for the law in a tradition of illegality. This is totally unacceptable, considering that as municipal

mayor, petitioner ought to implement the law to the letter. As local chief executive, he should have been the first to follow the law and see to it that it was followed by his constituency. Sadly, however, he was the first to break it. Petitioner should have complied with the requirements laid down by RA 7160 on personal canvass, no matter how strict they may have been. Dura lex sed lex. The law is difficult but it is the law. These requirements are not empty words but were specifically crafted to ensure transparency in the acquisition of government supplies, especially since no public bidding is involved in personal canvass. Truly, the requirement that the canvass and awarding of supplies be made by a collegial body assures the general public that despotic, irregular or unlawful transactions do not occur. It also guarantees that no personal preference is given to any supplier and that the government is given the best possible price for its procurements. The fourth element is likewise present. While it is true that the prosecution was not able to prove any undue injury to the government as a result of the purchases, it should be noted that there are two ways by which Section 3(e) of RA 3019 may be violated—the first, by causing undue injury to any party, including the government, or the second, by giving any private party any unwarranted benefit, advantage or preference. Although neither mode constitutes a distinct offense, an accused may be charged under either mode or both. The use of the disjunctive "or’ connotes that the two modes need not be present at the same time. In other words, the presence of one would suffice for conviction. Aside from the allegation of undue injury to the government, petitioner was also charged with having given unwarranted benefit, advantage or preference to private suppliers. Under the second mode, damage is not required. The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another. In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions. Petitioner did just that. The fact that he repeatedly failed to follow the

requirements of RA 7160 on personal canvass proves that unwarranted benefit, advantage or preference was given to the winning suppliers. These suppliers were awarded the procurement contract without the benefit of a fair system in determining the best possible price for the government. The private suppliers, which were all personally chosen by respondent, were able to profit from the transactions without showing proof that their prices were the most beneficial to the government. For that, petitioner must now face the consequences of his acts.32 (Emphasis supplied). We stress that the Ombudsman did not find probable cause to indict respondents for falsification simply because the Ombudsman could not categorically declare that the alteration made the CCT speak falsely as the ownership of the subject units at The Malayan Tower had yet to be determined. However, its initial factual findings on the administrative complaint categorically declared, thus: x x x Espenesin justified his action by asseverating that since the CCTs were still under the possession and control of the Register of Deeds and have not yet been distributed to the owners, amendments can still be made thereon. It is worthy to note that the CCTs of ASB, at the time when the amendment was made, were obviously complete. From its face, we can infer that all have attained the character of a binding public document. The signature of Espenesin is already affixed thereon, and on its face, it was explicitly declared that the titles have already been entered in the Registration Book of the Register of Deeds of Pasig City on March 11, 2005 at 11:55 a.m. Allegations to the contrary must be convincingly and positively proven, otherwise, the presumption holds that the CCTs issued in the name of ASB were regular and the contents thereon binding. Stated in a different light, delivery of the titles to the named owners is not a pre-requisite before all these CCTs can be legally categorized as genuine documents. The fact that the same had already been signed by x x x Espenesin in his capacity as Register of Deeds of Pasig City and the notations imprinted thereon appeared to have been entered on March 11, 2005 at 11:55 a.m. at the Registry Books of Pasig City, the CCTs in issue are bound to be treated as genuine documents drafted and signed in the regular performance of duties of the officer whose signature appears thereon. The law has made it so clear that it is the entry of the title in the Registration Book that controls the discretion of the Register of Deeds to effect the

necessary amendments and not the actual delivery of the titles to the named owners. This being the case, strict compliance with the mandates of Section 108 of P.D. 1529 is strictly called for. The provision is clear that upon entry of a certificate of title (which definitely includes Condominium Certificate of Title) attested to by the Register of Deeds, no amendment shall be effected thereon except upon lawful order of the court. In the instant case, it became obvious that after the CCTs of ASB were entered in the Registration Book on March 11, 2005 at exactly 11:55 a.m., the notations thereon were thereafter amended by Espenesin when Atty. Serrano purportedly informed him of the alleged error inscribed therein. The proper remedy that should have been undertaken by Espenesin soon after he was informed of the error is to either initiate the appropriate petition himself or to suggest to the parties to the MOA to file said petition in court for the amendment of the CCTs. An amendment by way of a shortcut is not allowed after entry of the title in the Registration Book. xxxx If the Regional Trial Court sitting as a land registration court is not legally authorized to determine the respective rights of the parties to the MOA when deciding on the petition for amendment and cancellation of title, all the more with the Registrar of Deeds who is legally not empowered to make such determination and to cause an automatic amendment of entries in the Registration Book on the basis of his unauthorized determination. Espenesin’s liability is grounded on the untimely and unauthorized amendment of the CCTs in issue. This is regardless of whether the amendment had made the CCTs speak of either a lie or the truth. What defines his error is his inability to comply with the proper procedure set by law.33 (Emphasis supplied). We likewise stress that the determination of probable cause does not require certainty of guilt for a crime. As the term itself implies, probable cause is concerned merely with probability and not absolute or even moral certainty;34 it is merely based on opinion and reasonable belief.35 It is sufficient that based on the preliminary investigation conducted, it is believed that the act or omission complained of constitutes the offense charged. Well-settled in jurisprudence, as in Raro v. Sandiganbayan,36 that:

x x x Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.37 Probable cause is a reasonable ground for presuming that a matter is or may be well-founded on such state of facts in the prosecutor's mind as would lead a person of ordinary caution and prudence to believe — or entertain an honest or strong suspicion — that it is so.38 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt.39 A finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.40 A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. x x x Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction.41 (Emphasis and italics supplied). In this instance, Espenesin explains and categorically admits that he altered, nay corrected, 38 certificates of title which we again reproduce for easy reference: Sometime ago Serrano requested that condominium titles over specified units be issued in consonance with the sharing in the joint venture MOA. Titles were correspondingly issued as per request, some in the name of MICO and some in the name of ASB. Before its release to the parties, Atty. Serrano came back and requested that some titles issued in the name of ASB be changed to MICO because allegedly there was error in the issuance. Believing it was a simple error and on representation of the person we came to know and considered the representative of both parties, we erased the name ASB Realty Corporation on those specified titles and placed instead the name Malayan Insurance Company.

To our mind, the purpose was not to transfer ownership but merely to rectify an error committed in the issuance of titles. And since they were well within our capacity to do, the titles not having been released yet to its owner, we did what we believed was a simple act of rectifying a simple mistake.42 The letter of Espenesin itself underscores the existence of a prima facie case of gross negligence: 1. Serrano transacted the registration of the units in The Malayan Tower with the Office of the Register of Deeds, Pasig City; 2. Serrano had previously presented a joint venture agreement, the MOA, which Espenesin followed in the initial preparation and issuance of the titles; 3. Before some CCTs initially issued in ASB’s name were released, Serrano returned and requested that some titles issued in the name of ASB be changed to MICO because those titles were supposedly erroneously registered to ASB; and 4. Just on Serrano’s utterance and declaration which Espenesin readily believed because he considered Serrano the representative of both parties, and without any other documentation to base the amendment on, Espenesin erased the name of ASB on those specified titles and replaced it with the name of MICO. Espenesin, a Registrar of Deeds, relied on Serrano’s word alone that a supposed error has been committed. Even if ownership of the units covered by the amended CCTs has not been categorically declared as ASB’s given the ongoing dispute between the parties, the MOA which Espenesin had previously referred to, allocates those units to ASB: Section 4. Distribution and Disposition of Units. (a) As a return of its capital investment in the Project, each party shall be entitled to such portion of all the net saleable area of the Building that their respective contributions to the Project bear to the actual construction cost. As of the date of the execution hereof, and on the basis of the total costs incurred to date in relation to the Remaining Construction Costs (as defined in Section 9(a) hereof), the parties shall respectively be entitled to the following (which entitlement shall be conditioned on, and subject to, adjustments as provided in sub-paragraph (b) of Section 4 in the event that the actual remaining cost of construction exceeds the Remaining Construction Cost):

(i) MICO – the net saleable area particularly described in Schedule 2 hereof. (ii) ASB – the following net saleable area: (A) the net saleable area which ASB had pre-sold for an aggregate purchase price of ₱640,085,267.30 as set forth in Schedule 1 (including all paid and unpaid proceeds of said presales); (B) the net saleable area particularly described in Schedule 3 hereof which shall be delivered to ASB upon completion of the Project; and, (C) provided that the actual remaining construction costs do not exceed the Remaining Construction Cost, the net saleable area particularly described in Schedule 4 hereof which shall be delivered to ASB upon completion of the Project and determination of its actual construction costs. If the actual remaining construction costs exceed the Remaining Construction Cost, sub-paragraph (b) of this Section 4 shall apply.43 The MOA even recognizes and specifies that: E. ASB has pre-sold a number of condominium units in the Project to certain buyers as set forth in Schedule 1 hereof, and in order to protect the interests of these buyers and preserve the interest in the Project, the goodwill and business reputation of Malayan, Malayan has proposed to complete the Project, and ASB has accepted such proposal, subject to the terms and conditions contained herein, including the contribution to the Project (a) by Malayan of the Lot and (b) by ASB of its interest as buyer under the Contract to Sell. xxxx Section 3. Recognition of ASB’s Investment. The parties confirm that as of the date hereof, ASB invested in the Project an amount equivalent to its entitlement to the net saleable area of the Building under Section 4 below, including ASB’s interest as buyer under the Contract to Sell.44 One fact deserves emphasis. The ownership of the condominium units remains in dispute and, by necessary inference, does not lie as well in MICO. By his baseless reliance on Serrano’s word and representation, Espenesin allowed MICO to gain an unwarranted advantage and benefit in the titling of the 38 units in The Malayan Tower.

That a prima facie case for gross negligence amounting to violation of Sections 3(a) and (e) of Republic Act No. 3019 exists is amply supported by the fact that Espenesin disregarded the well-established practice necessitating submission of required documents for registration of property in the Philippines: Documents Required for Registration of Real Property with the Register of Deeds: 1. Common Requirements o Original copy of the Deed or Instrument (Original Copy + 2 duplicate copies)If the original copy cannot be produced, the duplicate original or certified true copy shall be presented accompanied with a sworn affidavit executed by the interested party why the original copy cannot be presented. o Owner’s copy of the Certificate of Title or Co-owner’s copy if one has been issued. (Original Copy + 2 duplicate copies) o Latest Tax Declaration if the property is an unregistered land. (Original Copy + 2 duplicate copies) 2. Specific Requirements 1. Deed of Sale/Transfer xxxx  For Corporation 1. Secretary’s Certificate or Board Resolution to Sell or Purchase (Original Copy + Duplicate Copy) 2. Articles of Incorporation (for transferee corporation) (1 Certified Copy of the Original) 3. Certificate of the Securities and Exchange Commission (SEC) that the Articles of Incorporation had been registered . (1 Certified Copy of the Original) 4. For Condominium or Condominium Certificate of Transfer, affidavit/certificate of the Condominium Corporation that the sale/transfer does not violate the 6040 rule.(Original Copy + 1 Duplicate Copy) 5. Subsequent transfer of CCT requires Certificate of the Condominium Management. (Original Copy) 6. Sale by a Corporation Sole, court order is required.(Original copy of the Court Order) Additional Requirements xxxx 11. Condominium Projects  Master Deed (Original Copy + 1 Duplicate Copy)

 Declaration of Restriction (Original Copy + 1 Duplicate Copy)  Diagrammatic Floor Plan (Original Copy + 1 Duplicate Copy) If the Condominium Certificate of Title is issued for the first time in the name of the registered owner, require the following: o Certificate of Registration with the Housing and Land Use Regulatory Board (Original Copy + 1 Duplicate Copy) o Development Permit (Original Copy + 1 Duplicate Copy) o License to Sell (Original Copy + 1 Duplicate Copy)45 Espenesin, by his own explanation, relied on nothing more than Serrano, who he "came to know and considered as representative of both parties," and Serrano’s interpretation of the MOA that Serrano had brought with him. On the whole, there is sufficient ground to engender a well-founded belief that respondents Espenesin and Serrano committed prohibited acts listed in Sections 3(a) and (e) of Republic Act No. 3019. As regards Yuchengco and Cheng, apart from Ampil’s general assertions that the two, as officers of MICO, benefited from the alteration of the CCTs, there is a dearth of evidence pointing to their collective responsibility therefor. While the fact of alteration was admitted by respondents and was affirmed in the Ombudsman’s finding of fact, there is nothing that directly links Yuchengco and Cheng to the act. We are aware that the calibration of evidence to assess whether a prima facie graft case exists against respondents is a question of fact. We have consistently held that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion.46 In this case, however, certiorari will lie, given that the Ombudsman made no finding at all on respondents possible liability for violation of Sections 3(a) and (e) of Republic Act No. 3019. We hasten to reiterate that we are only dealing herein with the preliminary investigation aspect of this case. We do not adjudge respondents’ guilt or the lack thereof. The assertions of Espenesin and Serrano on the former’s good faith in effecting the alteration and the pending arbitration case before the Construction Industry Arbitration Commission involving the correct division of MICO’s and

ASB’s net saleable areas in The Malayan Tower are matters of defense which they should raise during trial of the criminal case. As regards the administrative liability of Espenesin, the basic principle in the law of public officers is the three-fold liability rule, which states that the wrongful acts or omissions of a public officer, Espenesin in these cases, may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others.47 On this point, we find that the appellate court erred when it affirmed the Ombudsman’s last ruling that Espenesin is not administratively liable. Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer.48 In Grave Misconduct, as distinguished from Simple Misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rules, must be manifest49 and established by substantial evidence. Grave Misconduct necessarily includes the lesser offense of Simple Misconduct.50 Thus, a person charged with Grave Misconduct may be held liable for Simple Misconduct if the misconduct does not involve any of the elements to qualify the misconduct as grave.51 In (G.R. No. 199115), the elements particular to Grave Misconduct are, by the Ombudsman’s own finding, present. Corruption, as an element of Grave Misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.52 This has already been demonstrated as discussed above. And, there is here a manifest disregard for established rules on land registration by a Register of Deeds himself. As he himself admits in his letter, Espenesin erased the name of ASB on the specified CCTs because he believed that Serrano’s request for the re-issuance thereof in MICO’s name constituted simple error. Section 108 of Presidential Decree No. 1529 provides: Section 108. Amendment and alteration of certificates. No erasure, alteration, or amendment shall be made upon the registration book after the entry of a certificate of title or of a memorandum thereon and the attestation of the same be Register of Deeds, except by order of the proper Court of First Instance. A registered owner of other person having an interest in registered property, or, in proper cases, the

Register of Deeds with the approval of the Commissioner of Land Registration, may apply by petition to the court upon the ground that the registered interests of any description, whether vested, contingent, expectant or inchoate appearing on the certificate, have terminated and ceased; or that new interest not appearing upon the certificate have arisen or been created; or that an omission or error was made in entering a certificate or any memorandum thereon, or, on any duplicate certificate; or that the same or any person on the certificate has been changed; or that the registered owner has married, or, if registered as married, that the marriage has been terminated and no right or interests of heirs or creditors will thereby be affected; or that a corporation which owned registered land and has been dissolved has not convened the same within three years after its dissolution; or upon any other reasonable ground; and the court may hear and determine the petition after notice to all parties in interest, and may order the entry or cancellation of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms and conditions, requiring security or bond if necessary, as it may consider proper; Provided, however, That this section shall not be construed to give the court authority to reopen the judgment or decree of registration, and that nothing shall be done or ordered by the court which shall impair the title or other interest of a purchaser holding a certificate for value and in good faith, or his heirs and assigns, without his or their written consent. Where the owner's duplicate certificate is not presented, a similar petition may be filed as provided in the preceding section. The foregoing clearly speaks of a court order prior to any erasure, alteration or amendment upon a certificate of title. In reversing its prior ruling, the Ombudsman cavalierly dismisses the fact of Espenesin already signing the CCTs issued in ASB’s name as "only a part of the issuance process because the final step in the titling procedure is indeed the release of the certificate of title."53 The Ombudsman further ruled: Considering that prior to the release of titles, Espenesin merely rectified what was represented to this office as error in the preparation of typing or the certificates, hence, it is wrong to subject him to an administrative sanction. This is bolstered by the fact that, at the time of release (and perhaps even up to the present time), there was no final determination yet from the land registration court as to

who has a better right to the property in question.54 (Emphasis supplied). This statement of the Ombudsman is virtually a declaration of Espenesin’s misconduct. It highlights Espenesin’s awareness and knowledge that ASB and MICO are two different and separate entities, albeit having entered into a joint venture for the building of "The Malayan Tower." As Registrar of Deeds, Espenesin was duty bound to inquire and ascertain the reason for Serrano’s new instruction on those specific set of CCTs and not just heed Serrano’s bidding. He heads the Office of Register of Deeds which is constituted by law as "a public repository of records of instruments affecting registered or unregistered lands x x x in the province or city wherein such office is situated." He should not have so easily taken Serrano’s word that the amendment Serrano sought was to correct simple and innocuous error. Espenesin could have then easily asked, as he is obliged to, for a contract or an authenticated writing to ascertain which units and parking slots were really allotted for ASB and MICO. His actions would then be based on what is documented and not merely by a lame claim of bona fides mistake. Moreover, Espenesin was previously presented a MOA, and consulted this same MOA, in the initial preparation and issuance of the 38 CCTs in ASB’s name. Certainly, a Registrar of Deeds who is required by law to be a member of the legal profession,55 possesses common sense and prudence to ask for documents on which to base his corrections. Reliance on the mere word of even the point person for the transaction, smacks of gross negligence when all transactions with the Office of the Register of Deeds, involving as it does registration of property, ought to be properly recorded and documented. That the Office of the Register of Deeds requires documentation in the registration of property, whether as an original or a subsequent registration, brooks no argument. Again, and it cannot be overlooked that, Espenesin initially referred to a MOA albeit Serrano worked on the registration transaction for both ASB and MICO. Subsequently, Serrano returns, bearing ostensible authority to transact even for ASB, and Espenesin fails to ask for documentation for the correction Serrano sought to be made, and simply relies on Serrano’s word. We are baffled by the Registrar of Deeds’ failure to require documentation which would serve as his basis for the correction. The

amendment sought by Serrano was not a mere clerical change of registered name; it was a substantial one, changing ownership of 38 units in The Malayan Tower from one entity, ASB, to another, MICO. Even just at Serrano’s initial request for correction of the CCTs, a red flag should have gone up for a Registrar of Deeds.1âwphi1 Espenesin splits hairs when he claims that it is "in the Registration Book where the prohibition to erase, alter, or amend, without court order, applies." We disagree with Espenesin. Chapter IV on Certificate of Title of Presidential Decree No. 1529,56 specifically Sections 40, 42 and 43 belie the claim of Espenesin: Section 40. Entry of Original Certificate of Title. Upon receipt by the Register of Deeds of the original and duplicate copies of the original certificate of title the same shall be entered in his record book and shall be numbered, dated, signed and sealed by the Register of Deeds with the seal of his office. Said certificate of title shall take effect upon the date of entry thereof. The Register of Deeds shall forthwith send notice by mail to the registered owner that his owner's duplicate is ready for delivery to him upon payment of legal fees. Section 42. Registration Books. The original copy of the original certificate of title shall be filed in the Registry of Deeds. The same shall be bound in consecutive order together with similar certificates of title and shall constitute the registration book for titled properties. Section 43. Transfer Certificate of Title. The subsequent certificate of title that may be issued by the Register of Deeds pursuant to any voluntary or involuntary instrument relating to the same land shall be in like form, entitled "Transfer Certificate of Title", and likewise issued in duplicate. The certificate shall show the number of the next previous certificate covering the same land and also the fact that it was originally registered, giving the record number, the number of the original certificate of title, and the volume and page of the registration book in which the latter is found. Recording or entry of the titles, whether an original or a subsequent transfer certificate of title in the record, is simultaneous with the signing by the Register of Deeds. The signature on the certificate by the Registrar of Deeds is accompanied by the dating, numbering and sealing of the certificate. All these are part of a single registration process. Where there has been a completed entry in the Record Book, as in this case where the Ombudsman found that "the signature of Espenesin is already affixed on the CCTs, and on its face, it was explicitly declared that the titles have already been

entered in the Registration Book of the Register of Deeds of Pasig City on March 11, 2005 at 11:55 a.m.," the Register of Deeds can no longer tamper with entries, specially the very name of the titleholder. The law says that the certificate of title shall take effect upon the date of entry thereof. To further drive home the point, as Registrar of Deeds, Espenesin knew full well that "there is no final determination yet from the land registration court as to who has a better right to the property in question." Espenesin’s attempt to minimize the significance of a Registrar of Deed’s signature on a CCT only aggravates the lack of prudence in his action. The change in the titleholder in the CCTs from ASB to MICO was an official documentation of a change of ownership. It definitely cannot be characterized as simple error. Grave misconduct, of which Espenesin has been charged, consists in a public officer’s deliberate violation of a rule of law or standard of behavior. It is regarded as grave when the elements of corruption, clear intent to violate the law, or flagrant disregard of established rules are present.57 In particular, corruption as an element of grave misconduct consists in the official’s unlawful and wrongful use of his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.58 In sum, the actions of Espenesin clearly demonstrate a disregard of well-known legal rules.59 The penalty for Grave Misconduct is dismissalfrom service with the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, and perpetual disqualification from reemployment in the government service, including government-owned or controlled corporation.60 WHEREFORE, the petition in G.R. No. 192685 is PARTIALLY GRANTED. The Resolution of the Ombudsman dated 30 April 2008 in OMB-C-C-07-0444-J is REVERSED and SET ASIDE. The Ombudsman is hereby directed to file the necessary Information for violation of Sections 3(a) and (e) of Republic Act No. 3019 against public respondent Policarpio L. Espenesin and private respondent Francis Serrano. The petition in G.R. No. 199115 is GRANTED. The Decision of the Court of Appeals dated 28 September 2011 in CA-G.R. SP No. 113171 and the Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J are REVERSED and SET ASIDE. Respondent Policarpio L. Espenesin is GUlLTY of Grave Misconduct and we, thus, impose the penalty of DIMISSAL from service. However, due to

his retirement from the service, we order forfeiture of all his retirement pay and benefits. SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice WE CONCUR: ANTONIO T. CARPIO Associate Justice Chairperson ARTURO D. BRION MARIANO C. DEL CASTILLO Associate Justice Associate Justice ESTELA M. PERLAS-BERNABE Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice Footnotes 1 Constitution, Art. XI, Secs. 12-13. 2 Id.; The Ombudsman Act of 1989, Secs. 13 and 15. 3 Rollo (G.R. No. 192685), pp. 31-41. 4 Id. at 50-55. 5 Metropolitan Bank and Trust Co. v. ASB Holdings, Inc., 545 Phil. 604, 610 (2007). 6 Id. at 612. 7 Rollo (G.R. No. 192685), pp. 66-75. 8 3RD Recital, paragraph C of the MOA. Id. at 66. 9 Id. at 67-68.

10

Unit Nos.: 706, 902, 907, 911, 912, 914, 918, 1805, 1807, 1809, 1810, 1811, 1814, 1815, 1816, 1818, 2204, 2207, 2208, 2209, 2210, 2211, 2212, 2214, 2215, 2217, 2302, 2303, 2304, 2306, 2309, 2311, 2312, 2314, 2315, 2318, ₱5 and 2316. Id. at 34. 11 Id. at 200-202. 12 Id. at 203. 13 Id. at 204. 14 Entitled, "Property Registration Decree." Section 108. Amendment and alteration of certificates. No erasure, alteration, or amendment shall be made upon the registration book after the entry of a certificate of title or of a memorandum thereon and the attestation of the same be Register of Deeds, except by order of the proper Court of First Instance. A registered owner of other person having an interest in registered property, or, in proper cases, the Register of Deeds with the approval of the Commissioner of Land Registration, may apply by petition to the court upon the ground that the registered interests of any description, whether vested, contingent, expectant or inchoate appearing on the certificate, have terminated and ceased; or that new interest not appearing upon the certificate have arisen or been created; or that an omission or error was made in entering a certificate or any memorandum thereon, or, on any duplicate certificate; or that the same or any person on the certificate has been changed; or that the registered owner has married, or, if registered as married, that the marriage has been terminated and no right or interests of heirs or creditors will thereby be affected; or that a corporation which owned registered land and has been dissolved has not convened the same within three years after its dissolution; or upon any other reasonable ground; and the court may hear and determine the petition after notice to all parties in interest, and may order the entry or cancellation of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms and conditions, requiring security or bond if necessary, as it may consider proper; Provided, however, That this section shall not be construed to give

the court authority to reopen the judgment or decree of registration, and that nothing shall be done or ordered by the court which shall impair the title or other interest of a purchaser holding a certificate for value and in good faith, or his heirs and assigns, without his or their written consent. Where the owner's duplicate certificate is not presented, a similar petition may be filed as provided in the preceding section. All petitions or motions filed under this Section as well as under any other provision of this Decree after original registration shall be filed and entitled in the original case in which the decree or registration was entered. 15 Rollo (G.R. No. 192685), pp. 56-65. 16 Id. at 35-37. 17 Constitution, Art. XI, Sec. 13. 18 Constitution, Art. XI, Sec. 12. 19 ABS-CBN Broadcasting Corporation v. Office of the Ombudsman, G.R. No. 133347, 15 October 2008, 569 SCRA 59, 75. 20 Vergara v. Ombudsman, G.R. No. 174567, 12 March 2009, 580 SCRA 693, 708; Presidential Commission on Good Government v. Desierto, 563 Phil. 517, 525-526 (2007). 21 ABS-CBN Broadcasting Corporation v. Office of the Ombudsman, supra note 19 at 75-76. 22 Baviera v. Zoleta, 535 Phil. 292, 314 (2006). 23 Vergara v. Ombudsman, supra note 20 at 709. 24 Rollo (G.R. No. 192685), p. 31. 25 Id. at 31-32. 26 Id. at 62-63. 27 Id. at 38-39. 28 Sison v. People, G.R. Nos. 170339 and 170398-403, 9 March 2010, 614 SCRA 670, 679. 29 Office of the Ombudsman (Mindanao) v. Cruzabra, G.R. No. 183507, 24 February 2010, 613 SCRA 549, 552. 30 Section 57. Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner's duplicate certificate.

The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference by number to the last preceding certificate. The original and the owner's duplicate of the grantor's certificate shall be stamped "cancelled." The deed of conveyance shall be filled and indorsed with the number and the place of registration of the certificate of title of the land conveyed. 31 Entitled, "Property Registration Decree." Section 108. Amendment and alteration of certificates. No erasure, alteration, or amendment shall be made upon the registration book after the entry of a certificate of title or of a memorandum thereon and the attestation of the same be Register of Deeds, except by order of the proper Court of First Instance. A registered owner of other person having an interest in registered property, or, in proper cases, the Register of Deeds with the approval of the Commissioner of Land Registration, may apply by petition to the court upon the ground that the registered interests of any description, whether vested, contingent, expectant or inchoate appearing on the certificate, have terminated and ceased; or that new interest not appearing upon the certificate have arisen or been created; or that an omission or error was made in entering a certificate or any memorandum thereon, or, on any duplicate certificate; or that the same or any person on the certificate has been changed; or that the registered owner has married, or, if registered as married, that the marriage has been terminated and no right or interests of heirs or creditors will thereby be affected; or that a corporation which owned registered land and has been dissolved has not convened the same within three years after its dissolution; or upon any other reasonable ground; and the court may hear and determine the petition after notice to all parties in interest, and may order the entry or cancellation of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms and conditions, requiring security or bond if necessary, as it may consider proper; Provided, however, That this section shall not be construed to give

the court authority to reopen the judgment or decree of registration, and that nothing shall be done or ordered by the court which shall impair the title or other interest of a purchaser holding a certificate for value and in good faith, or his heirs and assigns, without his or their written consent. Where the owner's duplicate certificate is not presented, a similar petition may be filed as provided in the preceding section. All petitions or motions filed under this Section as well as under any other provision of this Decree after original registration shall be filed and entitled in the original case in which the decree or registration was entered. 32 Supra note 28 at 679-682. 33 Rollo (G.R. No. 199115), pp. 174-176. 34 Metropolitan Bank and Trust Company v. Tobias III, G.R. No. 177780, 25 January 2012, 664 SCRA 165, 177-178. 35 Balangauan v. Court of Appeals, Special Nineteenth Division, Cebu City, G.R. No. 174350, 13 August 2008, 562 SCRA 184, 207. 36 390 Phil. 912 (2000). 37 Id. at 945-946. 38 Fuentes, Jr. v. Office of the Ombudsman, 511 Phil. 402, 415 (2005). 39 Galario v. Office of the Ombudsman (Mindanao), G.R. No. 166797, 10 July 2007, 527 SCRA 190, 204. 40 Casing v. Ombudsman, G.R. No. 192334, 13 June 2012, 672 SCRA 500, 509 citing Metropolitan Bank and Trust Company v. Gonzales, G.R. No. 180165, 7 April 2009, 584 SCRA 631, 641. 41 Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221 SCRA 349, 360. 42 Rollo (G.R. No. 192685), p. 203. 43 Rollo (G.R. No. 199115), pp. 79-80. 44 Id. at 79. 45 See http://nreaphilippines.com/question-on-philippine-realestate/land-registration-procedure/ last visited 21 July 2013. 46 See Sec. 1, Rule 45 in relation to Sec. 1, Rule 65 of the Rules of Court; Angeles v. Gutierrez, G.R. Nos. 189161 and 189173, 21 March 2012, 668 SCRA 803. 47 Domingo v. Rayala, G.R. Nos. 155831, 155840 and 158700, 18 February 2008, 546 SCRA 90, 112.

48

Estarija v. Ranada, 525 Phil. 718, 728 (2006); Bureau of Internal Revenue v. Organo, 468 Phil. 111, 118 (2004). 49 Villanueva v. Court of Appeals, 528 Phil. 432, 442 (2006); Civil Service Commission v. Lucas, 361 Phil. 486, 490-491 (1999). 50 Santos v. Rasalan, 544 Phil. 35, 43 (2007); Civil Service Commission v. Ledesma, 508 Phil. 569, 580 (2005). 51 Santos v. Rasalan, id. 52 Office of the Ombudsman v. Miedes, Sr., G.R. No. 176409, 27 February 2008, 547 SCRA 148, 157. 53 Rollo (G.R. No. 199115), p. 184. 54 Id. 55 Sec. 9, Presidential Decree No. 1529. 56 Section 39. Preparation of decree and Certificate of Title. After the judgment directing the registration of title to land has become final, the court shall, within fifteen days from entry of judgment, issue an order directing the Commissioner to issue the corresponding decree of registration and certificate of title. The clerk of court shall send, within fifteen days from entry of judgment, certified copies of the judgment and of the order of the court directing the Commissioner to issue the corresponding decree of registration and certificate of title, and a certificate stating that the decision has not been amended, reconsidered, nor appealed, and has become final. Thereupon, the Commissioner shall cause to be prepared the decree of registration as well as the original and duplicate of the corresponding original certificate of title. The original certificate of title shall be a true copy of the decree of registration. The decree of registration shall be signed by the Commissioner, entered and filed in the Land Registration Commission. The original of the original certificate of title shall also be signed by the Commissioner and shall be sent, together with the owner's duplicate certificate, to the Register of Deeds of the city or province where the property is situated for entry in his registration book. Section 40. Entry of Original Certificate of Title. x x x. Section 41. Owner's duplicate certificate of title. The owner's duplicate certificate of title shall be delivered to the registered owner or to his duly authorized representative. If two or more persons are registered

owners, one owner's duplicate certificate may be issued for the whole land, or if the co-owners so desire, a separate duplicate may be issued to each of them in like form, but all outstanding certificates of title so issued shall be surrendered whenever the Register of Deeds shall register any subsequent voluntary transaction affecting the whole land or part thereof or any interest therein. The Register of Deeds shall note on each certificate of title a statement as to whom a copy thereof was issued. Section 42. Registration Books. x x x. Section 43. Transfer Certificate of Title. x x x. 57 Imperial, Jr. v. Government Service Insurance System, G.R. No. 191224, 4 October 2011, 658 SCRA 497, 506. 58 National Power Corporation v. Civil Service Commission, G.R. No. 152093, 24 January 2012, 663 SCRA 492, 495. 59 National Power Corporation v. Civil Service Commission, id.; Jamsani-Rodriguez v. Justices Ong, Hernandez, Ponferrada, A.M. 8-19-SBJ, 24 August 2010. 60 Section 22, Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987.

Notes:

Rimando v Naguilian Emission Center SECOND DIVISION G.R. No. 198860 July 23, 2012 RESOLUTION REYES, J.: Before us is a petition for review on certiorari1 under Rule 45 of the Rules of Court seeking to annul and set aside Decision2 dated March 30, 2011 of the Court of Appeals (CA) in CA-G.R. SP NO. 112152. The Facts The present controversy stemmed from a petition for mandamus and damages filed before Branch 67 of the Regional Trial Court (RTC) of Bauang, La Union, by Naguilian Emission Testing Center, Inc., represented by its President, Rosemarie Llarenas (respondent) against Abraham P. Rimando (petitioner), who, at the time material to the case, was the sitting mayor of the Municipality of Naguilian, La Union. The petition prayed for the issuance of a writ of mandamus to compel the petitioner to issue a business permit in favor of the respondent. In support of its plea, the respondent claimed that its business is being conducted on a parcel of land which formerly belonged to the national government but later on certified by the Department of Environment and Natural Resources (DENR) as an alienable and disposable land of the public domain. The respondent had operated its business of emission testing on the land from 2005 to 2007. On January 18, 2008, the respondent filed an application for the renewal of its business permit and paid the corresponding fees therefor. The petitioner, however, refused to issue a business permit unless and until the respondent executes a contract of lease with the Municipality of Naguilian. The respondent was amenable to signing such contract subject to some proposed revisions, which, however, were not acceptable to the petitioner. The parties did not reach a common ground hence, the petition for mandamus. The Ruling of the RTC On May 26, 2009, the RTC denied the petition3 for lack of merit based on the ratiocinations that: (a) the Municipality of Naguilian is the declared owner of the subject parcel of land by virtue of Tax Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue Code of the Municipality of Naguilian, the municipality has the right to require the petitioner to sign a contract of lease because its business

operation is being conducted on a real property owned by the municipality; and (c) a mayor’s duty to issue business permits is discretionary in nature which may not be enforced by a mandamus writ. The decretal portion of the decision reads: WHEREFORE, premises considered, the petition is DENIED for lack of merit. SO ORDERED.4 The Ruling of the CA Unwaivering, the respondent appealed to the CA. In its Decision5 dated March 30, 2011, the CA held that the appeal was dismissible on the ground of mootness considering that the period for which the business period was being sought had already lapsed. As such, any ruling on the matter would bring no practical relief. Nonetheless, the CA proceeded to resolve the issues involved in the appeal for academic purposes. The CA disagreed with the RTC and found that the factual milieu of the case justifies the issuance of a writ of mandamus. The CA reasoned that the tax declaration in the name of the municipality was insufficient basis to require the execution of a contract of lease as a condition sine qua non for the renewal of a business permit. The CA further observed that Sangguniang Bayan Resolution No. 2007-81, upon which the municipality anchored its imposition of rental fees, was void because it failed to comply with the requirements of the Local Government Code and its Implementing Rules and Regulations. The CA held that the petitioner may not be held liable for damages since his action or inaction, for that matter, was done in the performance of official duties that are legally protected by the presumption of good faith. The CA likewise stressed that the civil action filed against the petitioner had already become moot and academic upon the expiration of his term as the mayor of Naguilian, La Union. Despite its incessant declarations on the mootness of the case, the CA disposed of the appeal in this wise: WHEREFORE, the Decision dated 26 May 2009 of the Regional Trial Court, First Judicial Region, Bauang, La Union, Branch 67, in Special Civil Action Case No. 72-BG, is hereby REVERSED and SET ASIDE. SO ORDERED.6 The petitioner moved for reconsideration7 questioning the pronouncement of the CA that Sangguniang Bayan Resolution No.

2007-81 was void and arguing that a petition for mandamus is not the proper vehicle to determine the issue on the ownership of the subject land. The motion was denied in the CA Resolution8 dated September 30, 2011. The petitioner is now before this Court reiterating the arguments raised in his motion for reconsideration. Our Ruling We agree with the CA that the petition for mandamus has already become moot and academic owing to the expiration of the period intended to be covered by the business permit. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value9 or in the nature of things, cannot be enforced.10 In such cases, there is no actual substantial relief to which the applicant would be entitled to and which would be negated by the dismissal of the petition.11 As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness.12 The objective of the petition for mandamus to compel the petitioner to grant a business permit in favor of respondent corporation for the period 2008 to 2009 has already been superseded by the passage of time and the expiration of the petitioner’s term as mayor. Verily then, the issue as to whether or not the petitioner, in his capacity as mayor, may be compelled by a writ of mandamus to release the respondent’s business permit ceased to present a justiciable controversy such that any ruling thereon would serve no practical value. Should the writ be issued, the petitioner can no longer abide thereby; also, the effectivity date of the business permit no longer subsists. While the CA is not precluded from proceeding to resolve the otherwise moot appeal of the respondent, we find that the decretal portion of its decision was erroneously couched. The CA’s conclusions on the issue of ownership over the subject land and the invalidity of Sangguniang Bayan Resolution No. 2007-81, aside from being unsubstantiated by convincing evidence, can no longer be practically utilized in favor of the petitioner. Thus, the overriding and decisive factor in the final disposition of the appeal was its mootness and the CA should have dismissed the same along with the petition for mandamus that spawned it. More importantly, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature. This was the

pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor 13 where a determination was made on the nature of the power of a mayor to grant business permits under the Local Government Code,14 viz: Central to the resolution of the case at bar is a reading of Section 444(b)(3)(iv) of the Local Government Code of 1991, which provides, thus: SEC. 444. The Chief Executive: Powers, Duties, Functions and Compensation. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: xxxx 3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall: xxxx (iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to Section 16 of the Local Government Code of 1991, which declares: SEC. 16. General Welfare. – Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social

justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. Section 16, known as the general welfare clause, encapsulates the delegated police power to local governments.1âwphi1 Local government units exercise police power through their respective legislative bodies. Evidently, the Local Government Code of 1991 is unequivocal that the municipal mayor has the power to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. x x x xxxx Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.15 (Citations omitted) Indeed, as correctly ruled by the RTC, the petition for mandamus filed by the respondent is incompetent to compel the exercise of a mayor’s discretionary duty to issue business permits. WHEREFORE, premises considered, the Decision dated March 30, 2011 of the Court of Appeals in CA-G.R. SP No. 112152 is hereby SET ASIDE. The Decision dated May 26, 2009 of the Regional Trial Court of Bauang, La Union is REINSTATED. SO ORDERED. BIENVENIDO L. REYES Associate justice WE CONCUR: ANTONIO T. CARPIO Senior Associate Justice Chairperson, Second Division MARIANO C. DEL CASTILLO Associate justice JIOSE PORTUGAL PEREZ Associate justice MARIA LOURDES P.A. SERENO Associate justice CERTIFICATION

I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ANTONIO T. CARPIO Senior Associate Justice (Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended) Footnotes * Additional member per Special Order No. 1257 dated July 19, 2012, in lieu of the absence of Associate Justice Arturo D. Brion. 1 Rollo, pp. 4-20. 2 Penned by Associate Justice Japar B. Dimaampao, with Associate Justices Mariflor P. Punzalan Castillo and Jane Aurora C. Lantion, concurring; id. at 22-22. 3 Under the sala of Judge Ferdinand A. Fe; id. at 46-49. 4 Id. at 49. 5 Supra note 2. 6 Rollo, p. 33. 7 Id. at 34-41. 8 Id. at 42-43. 9 Philippine Airlines, Inc. v. Pascua, 456 Phil. 425, 436 (2003). 10 Lanuza, Jr. v. Yuchengco, 494 Phil. 125, 133 (2005); See also Gonzales v. Narvasa, 392 Phil.518, 522 (2000); Villarico v. Court of Appeals, 424 Phil. 26 (2002); King v. Court of Appeals, 514 Phil. 465, 470 (2005). 11 Soriano Vda. De Dabao v. Court of Appeals, 469 Phil. 928 (2004). 12 Gunsi, Sr. v. Commissioners, The Commission on Elections, G.R. No. 168792, February 23, 2009, 580 SCRA 70, 76. 13 531 Phil. 30 (2006). 14 Although the case involved the issuance of a business permit for arrastre service, the general power of a mayor to issue business permits is encapsulated in the same legal provision of the Local Government Code without distinguishing the nature of the business for which a permit is sought. 15 Supra note 13, at 43-46

Notes:

ADMINISTRATIVE POWERS Hijo Plantation v. Central Bank of the Philippines SECOND DIVISION G.R. No. L-34526 August 9, 1988 PARAS, J.: This is a petition for certiorari and prohibition which seeks: (1) to declare Monetary Board Resolution No. 1995, series of 1971, as null and void; (2) to prohibit the Central Bank from collecting the stabilization tax on banana exports shipped during the period January 1, 1972 to June 30, 1982; and (3) a refund of the amount collected as stabilization tax from the Central Bank. The facts of this case as culled from the records are as follows: Hijo Plantation, Inc., Davao Fruits Corporation, Twin Rivers Plantation, Inc. and Marsman Plantation (Manifestation, Rollo, P. 18), collectively referred to herein as petitioners, are domestic corporations duly organized and existing under the laws of the Philippines, all of which are engaged in the production and exportation of bananas in and from Mindanao. Owing to the difficulty of determining the exchange rate of the peso to the dollar because of the floating rate and the promulgation of Central Bank Circular No. 289 which imposes an 80% retention scheme on all dollar earners, Congress passed Republic Act No. 6125 entitled "an act imposing STABILIZATION TAX ON CONSIGNMENTS ABROAD TO ACCELERATE THE ECONOMIC DEVELOPMENT OF THE PHILIPPINES AND FOR OTHER PURPOSES," approved and made effective on May 1, 1970 (Comment on Petition, Rollo, p, 32), to eliminate the necessity for said circular and to stabilize the peso. Among others, it provides as follows: SECTION 1. There shall be imposed, assessed and collected a stabilization tax on the gross F.O.B. peso proceeds, based on the rate of exchange prevailing at the time of receipt of such proceeds, whether partial or total, of any exportation of the following products in accordance with the following schedule: a. In the case of logs, copra, centrifugal sugar, and copper ore and concentrates:

Ten per centum of the F.O.B. peso proceeds of exports received on or after the date of effectivity of this Act to June thirty, nineteen hundred seventy one; Eight per centum of the F.O.B. peso proceeds of exports received from July first, nineteen hundred seventy-one to June thirty, nineteen hundred seventytwo; Six per centum of the F.O.B. peso proceeds of exports received from July first, nineteen hundred seventy two to June thirty, nineteen hundred seventy- three; and Four per centum of the F.O.B. peso proceeds of exports received from July first, nineteen hundred seventy-three to June thirty, nineteen hundred seventyfour. b. In the case of molasses, coconut oil, dessicated coconut, iron ore and concentrates, chromite ore and concentrates, copra meal or cake, unmanufactured abaca, unmanufactured tobacco, veneer core and sheets, plywood (including plywood panels faced with plastics), lumber, canned pineapples, and bunker fuel oil; Eight per centum of the F.O.B. peso proceeds of exports shipped on or after the date of effectivity of this

Act to June thirty, nineteen hundred seventy-one; Six per centum of the F.O.B. peso proceeds of exports shipped from July first, nineteen hundred seventy one to June thirty nineteen hundred seventy- two; Four per centum of the F.O.B. peso proceeds of exports shipped from July first, nineteen hundred seventy-two to June thirty nineteen hundred seventythree; and Two per centum of the F.O.B. peso proceeds of exports shipped from July first, nineteen hundred seventy three to June thirty nineteen hundred seventyfour. Any export product the aggregate annual F.O.B. value of which shall exceed five million United States dollars in any one calendar year during the effectivity of this Act shall likewise be subject to the rates of tax in force during the fiscal years following its reaching the said aggregate value. (Emphasis supplied). During the first nine (9) months of calendar year 1971, the total banana export amounted to an annual aggregate F.O.B. value of P8,949,000.00 (Answer, Rollo, p. 73) thus exceeding the aggregate F.O.B. value of five million United States Dollar, bringing it within the ambit of Republic Act No. 6125. Consequently, the banana industry was in a dilemma as to when the stabilization tax was to become due and collectible from it and under what schedule of Section 1 (b) of Republic Act 6125 should said tax be collected. Accordingly, petitioners through their counsel, by letter dated November 5, 1971, sought the authoritative pronouncement of the Central Bank (herein referred to as respondent), therein advancing the opinion that the

stabilization tax does not become due and collectible from the petitioners until July 1, 1972 at the rate of 4% of the F.O.B. peso proceeds of the exports shipped from July 1, 1972 to June 30,1973. Replying by letter dated December 17,1971 (Rollo, p. 11), the Central Bank called attention to Monetary Board Resolution No. 1995 dated December 3, 1971 which clarified that: 1) For exports of bananas shipped during the period from January 1, 1972 to June 30, 1972; the stabilization tax shall be at the rate of 6%; 2) For exports of bananas shipped during the period from July 1, 1972 to June 30, 1973, the stabilization tax shall be at the rate of 4%; and 3) For exports of bananas shipped during the period from July 1, 1973, to June 30, 1974, the stabilization tax shall be at the rate of 2%." Contending that said Board Resolution No. 1995 was manifestly contrary to the legislative intent, petitioners sought a reconsideration of said Board Resolution by letter dated December 27, 1971 (Rollo, p. 12) which request for reconsideration was denied by the respondent, also by letter dated January 20, 1972 (Rollo, p. 24). With the denial of petitioners' request for reconsideration, respondent thru its agent Bank, Rizal Commercial Banking Corporation has been collecting from the petitioners who have been forced to pay under protest, such stabilization tax. Petitioners view respondent's act as a clear violation of the provision of Republic Act No. 6125, and as an act in excess of its jurisdiction, hence, this petition. The sole issue in this case is whether or not respondent acted with grave abuse of discretion amounting to lack of jurisdiction when it issued Monetary Board Resolution No. 1995, series of 1971 which in effect reaffirmed Central Bank Circular No. 309, enacted pursuant to Monetary Board Resolution No. 1179. There is here no dispute that the banana industry is liable to pay the stabilization tax prescribed under Republic Act No. 1995, it being the admission of both parties, that the Industry has indeed reached and for the first time in the calendar year 1971, a total banana export exceeding the aggregate annual F.O.B. value of five million United States dollars. The crux of the controversy, however, is the manner of implementation of Republic Act No. 6125. Section 1 of R.A. 6125 clearly provides as follows:

An export product the aggregate annual F.O.B. value of which shall exceed five million US dollars in any one calendar year during the effectivity of the act shall likewise be subject to the rates of tax in force during the fiscal year following its reaching the said aggregate value." Petitioners contend that the stabilization tax to be collected from the banana industry does not become due and collectible until July 1, 1972 at the rate of 4% of the F.O.B. peso proceeds of the export shipped from July 1, 1972 to June 30,1973. They further contend that respondent gave retroactive effect to the law (RA 6125) by ruling in Monetary Board Resolution No. 1995 dated December 3, 1 971, that the export stabilization tax on banana industry would start to accrue on January 1, 1972 at the rate of 6% of the F.O.B. peso proceeds of export shipped from July 1, 1971 to June 30, 1972 (Rollo, pp. 3-4). Respondent, on the other hand, contends that the aforecited provision of RA 6125 merely prescribes the rates that may be imposed but does not provide when the tax shall be collected and makes no reference to any definite fixed period when the tax shall begin to be collected (Rollo, pp. 77-78). There is merit in this petition. In the very nature of things, in many cases it becomes impracticable for the legislative department of the Government to provide general regulations for the various and varying details for the management of a particular department of the Government. It therefore becomes convenient for the legislative department of the government, by law, in a most general way, to provide for the conduct, control, and management of the work of the particular department of the government; to authorize certain persons, in charge of the management and control of such department (United States v. Tupasi Molina, 29 Phil. 119 [19141). Such is the case in RA 6125, which provided in its Section 6, as follows: All rules and regulations for the purpose of carrying out the provisions of the act shall be promulgated by the Central Bank of the Philippines and shall take effect fifteen days after publication in three newspapers of general circulation throughout the Philippines, one of which shall be in the national language.

Such regulations have uniformly been held to have the force of law, whenever they are found to be in consonance and in harmony with the general purposes and objects of the law. Such regulations once established and found to be in conformity with the general purposes of the law, are just as binding upon all the parties, as if the regulation had been written in the original law itself (29 Phil. 119, Ibid). Upon the other hand, should the regulation conflict with the law, the validity of the regulation cannot be sustained (Director of Forestry vs. Muroz 23 SCRA 1183). Pursuant to the aforecited provision, the Monetary Board issued Resolution No. 1179 which contained the rules and regulations for the implementation of said provision which Board resolution was subsequently embodied in Central Bank Circular No. 309, dated August 10, 1970 (duly published in the Official Gazette, Vol. 66, No. 34, August 24, 1940, p. 7855 and in three newspapers of general circulation throughout the Philippines namely, the Manila Times, Manila Chronicle and Manila Daily Bulletin). Section 3 of Central Bank Circular No. 309, "provides that the stabilization tax shall begin to apply on January first following the calendar year during which such export products shall have reached the aggregate annual F.O.B. value of more than $5 million and the applicable tax rates shall be the rates prescribed in schedule (b) of Section 1 of RA No. 6125 for the fiscal year following the reaching of the said aggregate value." Central Bank Circular No. 309 was subsequently reaffirmed in Monetary Board Resolution No. 1995 herein assailed by petitioners for being null and void (Rollo, pp. 97- 98). In its comment (Rollo, p. 40), respondent argues that the request for authoritative pronouncement of petitioners was made because there was no express provision in Section 1 of RA 6125 which categorically states, when the stabilization tax shall begin to accrue on those aggregate annual F.O.B. values exceeding five (5) million United States dollars in any one calendar year during the effectivity of said act. For which reason, the law itself authorized it under Section 7 to promulgate rules and regulations to carry out the provisions of said law. In petitioner's reply (Rollo, p. 154) they argue that since the Banana Exports reached the aggregate annual F.O.B. value of US $5 million in August 1971, the stabilization tax on banana should be imposed only on July 1, 1972, the fiscal year following the calendar year during which the industry attained the $5 million mark. Their argument finds

support in the very language of the law and upon congressional record where a clarification on the applicability of the law was categorically made by the then Senator Aytona who stated that the tax shall be applicable only after the $5 million aggregate value is reached, making such tax prospective in application and for a period of one year- referring to the fiscal year (Annex 8, Comment of Respondent; Rollo, p. 60). Clearly such clarification was indicative of the legislative intent. Further, they argue that respondent bank through the Monetary Board clearly overstepped RA 6125 which empowered it to promulgate rules and regulations for the purpose of carrying out the provisions of said act, because while Section 1 of the law authorizes it to levy a stabilization tax on petitioners only in the fiscal year following their reaching the aggregate annual F.O.B. value of US $5 million, that is, the fiscal year July 1, 1972 to June 30, 1973, at a tax rate of 4% of the F.O.B. peso proceeds, respondent in gross violation of the law, instead issued Resolution No. 1995 which impose a 6% stabilization tax for the calendar year January 1, 1972 to June 30, 1972, which obviously is in excess of its jurisdiction. It was further argued that in directing its agent bank to collect the stabilization tax in accordance with Monetary Board Resolution No. 1995, it acted whimsically and capriciously. (Rollo, p. 155). It will be observed that while Monetary Board Resolution No. 1995 cannot be said to be the product of grave abuse of discretion but rather the result of respondent's overzealous desire to carry into effect the provisions of RA 6125, it is evident that the Board acted beyond its authority under the law and the Constitution. Hence, the petition for certiorari and prohibition in the case at bar, is proper. Moreover, there is no dispute that in case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People vs. Lim, 108 Phil. 1091). Rules that subvert the statute cannot be sanctioned (University of Sto. Tomas v. Board of Tax Appeals, 93 Phil. 376; Del Mar v. Phil. Veterans Administration, 51 SCRA 340). Except for constitutional officials who can trace their competence to act to the fundamental law itself, a public official must locate to the statute relied upon a grant of power before he can exercise it. Department zeal may not be permitted to outrun the authority conferred by statute (Radio Communications of the Philippines, Inc. v. Santiago L-29236,

August 21, 1974, 58 SCRA 493; cited in Tayug Rural Bank v. Central Bank, L-46158, November 28,1986,146 SCRA 120,130). PREMISES CONSIDERED, this petition is hereby GRANTED. SO ORDERED. Melencio-Herrera (Chairperson), Padilla and Sarmiento JJ., concur.

Notes:

CIR v. Central Luzon Drug Corp. THIRD DIVISION G.R. No. 159647 April 15, 2005 DECISION PANGANIBAN, J.: The 20 percent discount required by the law to be given to senior citizens is a tax credit, not merely a tax deduction from the gross income or gross sale of the establishment concerned. A tax credit is used by a private establishment only after the tax has been computed; a tax deduction, before the tax is computed. RA 7432 unconditionally grants a tax credit to all covered entities. Thus, the provisions of the revenue regulation that withdraw or modify such grant are void. Basic is the rule that administrative regulations cannot amend or revoke the law. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to set aside the August 29, 2002 Decision2 and the August 11, 2003 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 67439. The assailed Decision reads as follows: "WHEREFORE, premises considered, the Resolution appealed from is AFFIRMED in toto. No costs."4 The assailed Resolution denied petitioner’s Motion for Reconsideration. The Facts The CA narrated the antecedent facts as follows: "Respondent is a domestic corporation primarily engaged in retailing of medicines and other pharmaceutical products. In 1996, it operated six (6) drugstores under the business name and style ‘Mercury Drug.’ "From January to December 1996, respondent granted twenty (20%) percent sales discount to qualified senior citizens on their purchases of medicines pursuant to Republic Act No. [R.A.] 7432 and its Implementing Rules and Regulations. For the said period, the amount allegedly representing the 20% sales discount granted by respondent to qualified senior citizens totaled ₱904,769.00. "On April 15, 1997, respondent filed its Annual Income Tax Return for taxable year 1996 declaring therein that it incurred net losses from its operations. "On January 16, 1998, respondent filed with petitioner a claim for tax refund/credit in the amount of ₱904,769.00 allegedly arising from the 20% sales discount granted by respondent to qualified senior citizens

in compliance with [R.A.] 7432. Unable to obtain affirmative response from petitioner, respondent elevated its claim to the Court of Tax Appeals [(CTA or Tax Court)] via a Petition for Review. "On February 12, 2001, the Tax Court rendered a Decision5 dismissing respondent’s Petition for lack of merit. In said decision, the [CTA] justified its ruling with the following ratiocination: ‘x x x, if no tax has been paid to the government, erroneously or illegally, or if no amount is due and collectible from the taxpayer, tax refund or tax credit is unavailing. Moreover, whether the recovery of the tax is made by means of a claim for refund or tax credit, before recovery is allowed[,] it must be first established that there was an actual collection and receipt by the government of the tax sought to be recovered. x x x. ‘x x x x x x x x x ‘Prescinding from the above, it could logically be deduced that tax credit is premised on the existence of tax liability on the part of taxpayer. In other words, if there is no tax liability, tax credit is not available.’ "Respondent lodged a Motion for Reconsideration. The [CTA], in its assailed resolution,6 granted respondent’s motion for reconsideration and ordered herein petitioner to issue a Tax Credit Certificate in favor of respondent citing the decision of the then Special Fourth Division of [the CA] in CA G.R. SP No. 60057 entitled ‘Central [Luzon] Drug Corporation vs. Commissioner of Internal Revenue’ promulgated on May 31, 2001, to wit: ‘However, Sec. 229 clearly does not apply in the instant case because the tax sought to be refunded or credited by petitioner was not erroneously paid or illegally collected. We take exception to the CTA’s sweeping but unfounded statement that ‘both tax refund and tax credit are modes of recovering taxes which are either erroneously or illegally paid to the government.’ Tax refunds or credits do not exclusively pertain to illegally collected or erroneously paid taxes as they may be other circumstances where a refund is warranted. The tax refund provided under Section 229 deals exclusively with illegally collected or erroneously paid taxes but there are other possible situations, such as the refund of excess estimated corporate quarterly income tax paid, or that of excess input tax paid by a VAT-registered person, or that of excise tax paid on goods locally produced or manufactured but actually exported. The standards and mechanics for the grant of a refund or credit under these situations are different

from that under Sec. 229. Sec. 4[.a)] of R.A. 7432, is yet another instance of a tax credit and it does not in any way refer to illegally collected or erroneously paid taxes, x x x.’"7 Ruling of the Court of Appeals The CA affirmed in toto the Resolution of the Court of Tax Appeals (CTA) ordering petitioner to issue a tax credit certificate in favor of respondent in the reduced amount of ₱903,038.39. It reasoned that Republic Act No. (RA) 7432 required neither a tax liability nor a payment of taxes by private establishments prior to the availment of a tax credit. Moreover, such credit is not tantamount to an unintended benefit from the law, but rather a just compensation for the taking of private property for public use. Hence this Petition.8 The Issues Petitioner raises the following issues for our consideration: "Whether the Court of Appeals erred in holding that respondent may claim the 20% sales discount as a tax credit instead of as a deduction from gross income or gross sales. "Whether the Court of Appeals erred in holding that respondent is entitled to a refund."9 These two issues may be summed up in only one: whether respondent, despite incurring a net loss, may still claim the 20 percent sales discount as a tax credit. The Court’s Ruling The Petition is not meritorious. Sole Issue: Claim of 20 Percent Sales Discount as Tax Credit Despite Net Loss Section 4a) of RA 743210 grants to senior citizens the privilege of obtaining a 20 percent discount on their purchase of medicine from any private establishment in the country.11 The latter may then claim the cost of the discount as a tax credit.12 But can such credit be claimed, even though an establishment operates at a loss? We answer in the affirmative. Tax Credit versus Tax Deduction Although the term is not specifically defined in our Tax Code,13 tax credit generally refers to an amount that is "subtracted directly from one’s total tax liability."14 It is an "allowance against the tax itself"15 or "a deduction from what is owed"16 by a taxpayer to the government.

Examples of tax credits are withheld taxes, payments of estimated tax, and investment tax credits.17 Tax credit should be understood in relation to other tax concepts. One of these is tax deduction -- defined as a subtraction "from income for tax purposes,"18 or an amount that is "allowed by law to reduce income prior to [the] application of the tax rate to compute the amount of tax which is due."19 An example of a tax deduction is any of the allowable deductions enumerated in Section 3420 of the Tax Code. A tax credit differs from a tax deduction. On the one hand, a tax credit reduces the tax due, including -- whenever applicable -- the income tax that is determined after applying the corresponding tax rates to taxable income.21 A tax deduction, on the other, reduces the income that is subject to tax22 in order to arrive at taxable income.23 To think of the former as the latter is to avoid, if not entirely confuse, the issue. A tax credit is used only after the tax has been computed; a tax deduction, before. Tax Liability Required for Tax Credit Since a tax credit is used to reduce directly the tax that is due, there ought to be a tax liability before the tax credit can be applied. Without that liability, any tax credit application will be useless. There will be no reason for deducting the latter when there is, to begin with, no existing obligation to the government. However, as will be presented shortly, the existence of a tax credit or its grant by law is not the same as the availment or use of such credit. While the grant is mandatory, the availment or use is not. If a net loss is reported by, and no other taxes are currently due from, a business establishment, there will obviously be no tax liability against which any tax credit can be applied.24 For the establishment to choose the immediate availment of a tax credit will be premature and impracticable. Nevertheless, the irrefutable fact remains that, under RA 7432, Congress has granted without conditions a tax credit benefit to all covered establishments. Although this tax credit benefit is available, it need not be used by losing ventures, since there is no tax liability that calls for its application. Neither can it be reduced to nil by the quick yet callow stroke of an administrative pen, simply because no reduction of taxes can instantly be effected. By its nature, the tax credit may still be deducted from a future, not a present, tax liability, without which it

does not have any use. In the meantime, it need not move. But it breathes. Prior Tax Payments Not Required for Tax Credit While a tax liability is essential to the availment or use of any tax credit, prior tax payments are not. On the contrary, for the existence or grant solely of such credit, neither a tax liability nor a prior tax payment is needed. The Tax Code is in fact replete with provisions granting or allowing tax credits, even though no taxes have been previously paid. For example, in computing the estate tax due, Section 86(E) allows a tax credit -- subject to certain limitations -- for estate taxes paid to a foreign country. Also found in Section 101(C) is a similar provision for donor’s taxes -- again when paid to a foreign country -- in computing for the donor’s tax due. The tax credits in both instances allude to the prior payment of taxes, even if not made to our government. Under Section 110, a VAT (Value-Added Tax)- registered person engaging in transactions -- whether or not subject to the VAT -- is also allowed a tax credit that includes a ratable portion of any input tax not directly attributable to either activity. This input tax may either be the VAT on the purchase or importation of goods or services that is merely due from -- not necessarily paid by -- such VAT-registered person in the course of trade or business; or the transitional input tax determined in accordance with Section 111(A). The latter type may in fact be an amount equivalent to only eight percent of the value of a VAT-registered person’s beginning inventory of goods, materials and supplies, when such amount -- as computed -- is higher than the actual VAT paid on the said items.25 Clearly from this provision, the tax credit refers to an input tax that is either due only or given a value by mere comparison with the VAT actually paid -- then later prorated. No tax is actually paid prior to the availment of such credit. In Section 111(B), a one and a half percent input tax credit that is merely presumptive is allowed. For the purchase of primary agricultural products used as inputs -- either in the processing of sardines, mackerel and milk, or in the manufacture of refined sugar and cooking oil -- and for the contract price of public work contracts entered into with the government, again, no prior tax payments are needed for the use of the tax credit. More important, a VAT-registered person whose sales are zero-rated or effectively zero-rated may, under Section 112(A), apply for the

issuance of a tax credit certificate for the amount of creditable input taxes merely due -- again not necessarily paid to -- the government and attributable to such sales, to the extent that the input taxes have not been applied against output taxes.26 Where a taxpayer is engaged in zero-rated or effectively zero-rated sales and also in taxable or exempt sales, the amount of creditable input taxes due that are not directly and entirely attributable to any one of these transactions shall be proportionately allocated on the basis of the volume of sales. Indeed, in availing of such tax credit for VAT purposes, this provision -- as well as the one earlier mentioned -shows that the prior payment of taxes is not a requisite. It may be argued that Section 28(B)(5)(b) of the Tax Code is another illustration of a tax credit allowed, even though no prior tax payments are not required. Specifically, in this provision, the imposition of a final withholding tax rate on cash and/or property dividends received by a nonresident foreign corporation from a domestic corporation is subjected to the condition that a foreign tax credit will be given by the domiciliary country in an amount equivalent to taxes that are merely deemed paid.27 Although true, this provision actually refers to the tax credit as a condition only for the imposition of a lower tax rate, not as a deduction from the corresponding tax liability. Besides, it is not our government but the domiciliary country that credits against the income tax payable to the latter by the foreign corporation, the tax to be foregone or spared.28 In contrast, Section 34(C)(3), in relation to Section 34(C)(7)(b), categorically allows as credits, against the income tax imposable under Title II, the amount of income taxes merely incurred -- not necessarily paid -- by a domestic corporation during a taxable year in any foreign country. Moreover, Section 34(C)(5) provides that for such taxes incurred but not paid, a tax credit may be allowed, subject to the condition precedent that the taxpayer shall simply give a bond with sureties satisfactory to and approved by petitioner, in such sum as may be required; and further conditioned upon payment by the taxpayer of any tax found due, upon petitioner’s redetermination of it. In addition to the above-cited provisions in the Tax Code, there are also tax treaties and special laws that grant or allow tax credits, even though no prior tax payments have been made. Under the treaties in which the tax credit method is used as a relief to avoid double taxation, income that is taxed in the state of source is also taxable in the state of residence, but the tax paid in the former is

merely allowed as a credit against the tax levied in the latter.29 Apparently, payment is made to the state of source, not the state of residence. No tax, therefore, has been previously paid to the latter. Under special laws that particularly affect businesses, there can also be tax credit incentives. To illustrate, the incentives provided for in Article 48 of Presidential Decree No. (PD) 1789, as amended by Batas Pambansa Blg. (BP) 391, include tax credits equivalent to either five percent of the net value earned, or five or ten percent of the net local content of exports.30 In order to avail of such credits under the said law and still achieve its objectives, no prior tax payments are necessary. From all the foregoing instances, it is evident that prior tax payments are not indispensable to the availment of a tax credit. Thus, the CA correctly held that the availment under RA 7432 did not require prior tax payments by private establishments concerned.31 However, we do not agree with its finding32 that the carry-over of tax credits under the said special law to succeeding taxable periods, and even their application against internal revenue taxes, did not necessitate the existence of a tax liability. The examples above show that a tax liability is certainly important in the availment or use, not the existence or grant, of a tax credit. Regarding this matter, a private establishment reporting a net loss in its financial statements is no different from another that presents a net income. Both are entitled to the tax credit provided for under RA 7432, since the law itself accords that unconditional benefit. However, for the losing establishment to immediately apply such credit, where no tax is due, will be an improvident usance. Sections 2.i and 4 of Revenue Regulations No. 2-94 Erroneous RA 7432 specifically allows private establishments to claim as tax credit the amount of discounts they grant.33 In turn, the Implementing Rules and Regulations, issued pursuant thereto, provide the procedures for its availment.34 To deny such credit, despite the plain mandate of the law and the regulations carrying out that mandate, is indefensible. First, the definition given by petitioner is erroneous. It refers to tax credit as the amount representing the 20 percent discount that "shall be deducted by the said establishments from their gross income for income tax purposes and from their gross sales for value-added tax or other percentage tax purposes."35 In ordinary business language,

the tax credit represents the amount of such discount. However, the manner by which the discount shall be credited against taxes has not been clarified by the revenue regulations. By ordinary acceptation, a discount is an "abatement or reduction made from the gross amount or value of anything."36 To be more precise, it is in business parlance "a deduction or lowering of an amount of money;"37 or "a reduction from the full amount or value of something, especially a price."38 In business there are many kinds of discount, the most common of which is that affecting the income statement39 or financial report upon which the income tax is based. Business Discounts Deducted from Gross Sales A cash discount, for example, is one granted by business establishments to credit customers for their prompt payment.40 It is a "reduction in price offered to the purchaser if payment is made within a shorter period of time than the maximum time specified."41 Also referred to as a sales discount on the part of the seller and a purchase discount on the part of the buyer, it may be expressed in such terms as "5/10, n/30."42 A quantity discount, however, is a "reduction in price allowed for purchases made in large quantities, justified by savings in packaging, shipping, and handling."43 It is also called a volume or bulk discount.44 A "percentage reduction from the list price x x x allowed by manufacturers to wholesalers and by wholesalers to retailers"45 is known as a trade discount. No entry for it need be made in the manual or computerized books of accounts, since the purchase or sale is already valued at the net price actually charged the buyer.46 The purpose for the discount is to encourage trading or increase sales, and the prices at which the purchased goods may be resold are also suggested.47 Even a chain discount -- a series of discounts from one list price -- is recorded at net.48 Finally, akin to a trade discount is a functional discount. It is "a supplier’s price discount given to a purchaser based on the [latter’s] role in the [former’s] distribution system."49 This role usually involves warehousing or advertising. Based on this discussion, we find that the nature of a sales discount is peculiar. Applying generally accepted accounting principles (GAAP) in the country, this type of discount is reflected in the income statement50 as a line item deducted -- along with returns, allowances,

rebates and other similar expenses -- from gross sales to arrive at net sales.51 This type of presentation is resorted to, because the accounts receivable and sales figures that arise from sales discounts, -- as well as from quantity, volume or bulk discounts -- are recorded in the manual and computerized books of accounts and reflected in the financial statements at the gross amounts of the invoices.52 This manner of recording credit sales -- known as the gross method -- is most widely used, because it is simple, more convenient to apply than the net method, and produces no material errors over time.53 However, under the net method used in recording trade, chain or functional discounts, only the net amounts of the invoices -- after the discounts have been deducted -- are recorded in the books of accounts54 and reflected in the financial statements. A separate line item cannot be shown,55 because the transactions themselves involving both accounts receivable and sales have already been entered into, net of the said discounts. The term sales discounts is not expressly defined in the Tax Code, but one provision adverts to amounts whose sum -- along with sales returns, allowances and cost of goods sold56 -- is deducted from gross sales to come up with the gross income, profit or margin57 derived from business.58 In another provision therein, sales discounts that are granted and indicated in the invoices at the time of sale -- and that do not depend upon the happening of any future event -- may be excluded from the gross sales within the same quarter they were given.59 While determinative only of the VAT, the latter provision also appears as a suitable reference point for income tax purposes already embraced in the former. After all, these two provisions affirm that sales discounts are amounts that are always deductible from gross sales. Reason for the Senior Citizen Discount: The Law, Not Prompt Payment A distinguishing feature of the implementing rules of RA 7432 is the private establishment’s outright deduction of the discount from the invoice price of the medicine sold to the senior citizen.60 It is, therefore, expected that for each retail sale made under this law, the discount period lasts no more than a day, because such discount is given -- and the net amount thereof collected -- immediately upon perfection of the sale.61 Although prompt payment is made for an arm’s-length transaction by the senior citizen, the real and compelling

reason for the private establishment giving the discount is that the law itself makes it mandatory. What RA 7432 grants the senior citizen is a mere discount privilege, not a sales discount or any of the above discounts in particular. Prompt payment is not the reason for (although a necessary consequence of) such grant. To be sure, the privilege enjoyed by the senior citizen must be equivalent to the tax credit benefit enjoyed by the private establishment granting the discount. Yet, under the revenue regulations promulgated by our tax authorities, this benefit has been erroneously likened and confined to a sales discount. To a senior citizen, the monetary effect of the privilege may be the same as that resulting from a sales discount. However, to a private establishment, the effect is different from a simple reduction in price that results from such discount. In other words, the tax credit benefit is not the same as a sales discount. To repeat from our earlier discourse, this benefit cannot and should not be treated as a tax deduction. To stress, the effect of a sales discount on the income statement and income tax return of an establishment covered by RA 7432 is different from that resulting from the availment or use of its tax credit benefit. While the former is a deduction before, the latter is a deduction after, the income tax is computed. As mentioned earlier, a discount is not necessarily a sales discount, and a tax credit for a simple discount privilege should not be automatically treated like a sales discount. Ubi lex non distinguit, nec nos distinguere debemus. Where the law does not distinguish, we ought not to distinguish. Sections 2.i and 4 of Revenue Regulations No. (RR) 2-94 define tax credit as the 20 percent discount deductible from gross income for income tax purposes, or from gross sales for VAT or other percentage tax purposes. In effect, the tax credit benefit under RA 7432 is related to a sales discount. This contrived definition is improper, considering that the latter has to be deducted from gross sales in order to compute the gross income in the income statement and cannot be deducted again, even for purposes of computing the income tax. When the law says that the cost of the discount may be claimed as a tax credit, it means that the amount -- when claimed -- shall be treated as a reduction from any tax liability, plain and simple. The option to avail of the tax credit benefit depends upon the existence of a tax liability, but to limit the benefit to a sales discount -- which is not

even identical to the discount privilege that is granted by law -- does not define it at all and serves no useful purpose. The definition must, therefore, be stricken down. Laws Not Amended by Regulations Second, the law cannot be amended by a mere regulation. In fact, a regulation that "operates to create a rule out of harmony with the statute is a mere nullity";62 it cannot prevail. It is a cardinal rule that courts "will and should respect the contemporaneous construction placed upon a statute by the executive officers whose duty it is to enforce it x x x."63 In the scheme of judicial tax administration, the need for certainty and predictability in the implementation of tax laws is crucial.64 Our tax authorities fill in the details that "Congress may not have the opportunity or competence to provide."65 The regulations these authorities issue are relied upon by taxpayers, who are certain that these will be followed by the courts.66 Courts, however, will not uphold these authorities’ interpretations when clearly absurd, erroneous or improper. In the present case, the tax authorities have given the term tax credit in Sections 2.i and 4 of RR 2-94 a meaning utterly in contrast to what RA 7432 provides. Their interpretation has muddled up the intent of Congress in granting a mere discount privilege, not a sales discount. The administrative agency issuing these regulations may not enlarge, alter or restrict the provisions of the law it administers; it cannot engraft additional requirements not contemplated by the legislature.67 In case of conflict, the law must prevail.68 A "regulation adopted pursuant to law is law."69 Conversely, a regulation or any portion thereof not adopted pursuant to law is no law and has neither the force nor the effect of law.70 Availment of Tax Credit Voluntary Third, the word may in the text of the statute71 implies that the availability of the tax credit benefit is neither unrestricted nor mandatory.72 There is no absolute right conferred upon respondent, or any similar taxpayer, to avail itself of the tax credit remedy whenever it chooses; "neither does it impose a duty on the part of the government to sit back and allow an important facet of tax collection to be at the sole control and discretion of the taxpayer."73 For the tax authorities to compel respondent to deduct the 20 percent discount

from either its gross income or its gross sales74 is, therefore, not only to make an imposition without basis in law, but also to blatantly contravene the law itself. What Section 4.a of RA 7432 means is that the tax credit benefit is merely permissive, not imperative. Respondent is given two options -either to claim or not to claim the cost of the discounts as a tax credit. In fact, it may even ignore the credit and simply consider the gesture as an act of beneficence, an expression of its social conscience. Granting that there is a tax liability and respondent claims such cost as a tax credit, then the tax credit can easily be applied. If there is none, the credit cannot be used and will just have to be carried over and revalidated75 accordingly. If, however, the business continues to operate at a loss and no other taxes are due, thus compelling it to close shop, the credit can never be applied and will be lost altogether. In other words, it is the existence or the lack of a tax liability that determines whether the cost of the discounts can be used as a tax credit. RA 7432 does not give respondent the unfettered right to avail itself of the credit whenever it pleases. Neither does it allow our tax administrators to expand or contract the legislative mandate. "The ‘plain meaning rule’ or verba legis in statutory construction is thus applicable x x x. Where the words of a statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation."76 Tax Credit Benefit Deemed Just Compensation Fourth, Sections 2.i and 4 of RR 2-94 deny the exercise by the State of its power of eminent domain. Be it stressed that the privilege enjoyed by senior citizens does not come directly from the State, but rather from the private establishments concerned. Accordingly, the tax credit benefit granted to these establishments can be deemed as their just compensation for private property taken by the State for public use.77 The concept of public use is no longer confined to the traditional notion of use by the public, but held synonymous with public interest, public benefit, public welfare, and public convenience.78 The discount privilege to which our senior citizens are entitled is actually a benefit enjoyed by the general public to which these citizens belong. The discounts given would have entered the coffers and formed part of the gross sales of the private establishments concerned, were it not for RA 7432. The permanent reduction in their total revenues is a

forced subsidy corresponding to the taking of private property for public use or benefit. As a result of the 20 percent discount imposed by RA 7432, respondent becomes entitled to a just compensation. This term refers not only to the issuance of a tax credit certificate indicating the correct amount of the discounts given, but also to the promptness in its release. Equivalent to the payment of property taken by the State, such issuance -- when not done within a reasonable time from the grant of the discounts -- cannot be considered as just compensation. In effect, respondent is made to suffer the consequences of being immediately deprived of its revenues while awaiting actual receipt, through the certificate, of the equivalent amount it needs to cope with the reduction in its revenues.79 Besides, the taxation power can also be used as an implement for the exercise of the power of eminent domain.80 Tax measures are but "enforced contributions exacted on pain of penal sanctions"81 and "clearly imposed for a public purpose."82 In recent years, the power to tax has indeed become a most effective tool to realize social justice, public welfare, and the equitable distribution of wealth.83 While it is a declared commitment under Section 1 of RA 7432, social justice "cannot be invoked to trample on the rights of property owners who under our Constitution and laws are also entitled to protection. The social justice consecrated in our [C]onstitution [is] not intended to take away rights from a person and give them to another who is not entitled thereto."84 For this reason, a just compensation for income that is taken away from respondent becomes necessary. It is in the tax credit that our legislators find support to realize social justice, and no administrative body can alter that fact. To put it differently, a private establishment that merely breaks even85 -- without the discounts yet -- will surely start to incur losses because of such discounts. The same effect is expected if its mark-up is less than 20 percent, and if all its sales come from retail purchases by senior citizens. Aside from the observation we have already raised earlier, it will also be grossly unfair to an establishment if the discounts will be treated merely as deductions from either its gross income or its gross sales. Operating at a loss through no fault of its own, it will realize that the tax credit limitation under RR 2-94 is inutile, if not improper. Worse, profit-generating businesses will be put in a better position if they avail themselves of tax credits denied those that are losing, because no taxes are due from the latter.

Grant of Tax Credit Intended by the Legislature Fifth, RA 7432 itself seeks to adopt measures whereby senior citizens are assisted by the community as a whole and to establish a program beneficial to them.86 These objectives are consonant with the constitutional policy of making "health x x x services available to all the people at affordable cost"87 and of giving "priority for the needs of the x x x elderly."88 Sections 2.i and 4 of RR 2-94, however, contradict these constitutional policies and statutory objectives. Furthermore, Congress has allowed all private establishments a simple tax credit, not a deduction. In fact, no cash outlay is required from the government for the availment or use of such credit. The deliberations on February 5, 1992 of the Bicameral Conference Committee Meeting on Social Justice, which finalized RA 7432, disclose the true intent of our legislators to treat the sales discounts as a tax credit, rather than as a deduction from gross income. We quote from those deliberations as follows: "THE CHAIRMAN (Rep. Unico). By the way, before that ano, about deductions from taxable income. I think we incorporated there a provision na - on the responsibility of the private hospitals and drugstores, hindi ba? SEN. ANGARA. Oo. THE CHAIRMAN. (Rep. Unico), So, I think we have to put in also a provision here about the deductions from taxable income of that private hospitals, di ba ganon 'yan? MS. ADVENTO. Kaya lang po sir, and mga discounts po nila affecting government and public institutions, so, puwede na po nating hindi isama yung mga less deductions ng taxable income. THE CHAIRMAN. (Rep. Unico). Puwede na. Yung about the private hospitals. Yung isiningit natin? MS. ADVENTO. Singit na po ba yung 15% on credit. (inaudible/did not use the microphone). SEN. ANGARA. Hindi pa, hindi pa. THE CHAIRMAN. (Rep. Unico) Ah, 'di pa ba naisama natin? SEN. ANGARA. Oo. You want to insert that? THE CHAIRMAN (Rep. Unico). Yung ang proposal ni Senator Shahani, e. SEN. ANGARA. In the case of private hospitals they got the grant of 15% discount, provided that, the private hospitals can claim the expense as a tax credit.

REP. AQUINO. Yah could be allowed as deductions in the perpetrations of (inaudible) income. SEN. ANGARA. I-tax credit na lang natin para walang cash-out ano? REP. AQUINO. Oo, tax credit. Tama, Okay. Hospitals ba o lahat ng establishments na covered. THE CHAIRMAN. (Rep. Unico). Sa kuwan lang yon, as private hospitals lang. REP. AQUINO. Ano ba yung establishments na covered? SEN. ANGARA. Restaurant lodging houses, recreation centers. REP. AQUINO. All establishments covered siguro? SEN. ANGARA. From all establishments. Alisin na natin 'Yung kuwan kung ganon. Can we go back to Section 4 ha? REP. AQUINO. Oho. SEN. ANGARA. Letter A. To capture that thought, we'll say the grant of 20% discount from all establishments et cetera, et cetera, provided that said establishments - provided that private establishments may claim the cost as a tax credit. Ganon ba 'yon? REP. AQUINO. Yah. SEN. ANGARA. Dahil kung government, they don't need to claim it. THE CHAIRMAN. (Rep. Unico). Tax credit. SEN. ANGARA. As a tax credit [rather] than a kuwan - deduction, Okay. REP. AQUINO Okay. SEN. ANGARA. Sige Okay. Di subject to style na lang sa Letter A".89 Special Law Over General Law Sixth and last, RA 7432 is a special law that should prevail over the Tax Code -- a general law. "x x x [T]he rule is that on a specific matter the special law shall prevail over the general law, which shall be resorted to only to supply deficiencies in the former."90 In addition, "[w]here there are two statutes, the earlier special and the later general -- the terms of the general broad enough to include the matter provided for in the special -- the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general,91 one as a general law of the land, the other as the law of a particular case."92 "It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute."93

RA 7432 is an earlier law not expressly repealed by, and therefore remains an exception to, the Tax Code -- a later law. When the former states that a tax credit may be claimed, then the requirement of prior tax payments under certain provisions of the latter, as discussed above, cannot be made to apply. Neither can the instances of or references to a tax deduction under the Tax Code94 be made to restrict RA 7432. No provision of any revenue regulation can supplant or modify the acts of Congress. WHEREFORE, the Petition is hereby DENIED. The assailed Decision and Resolution of the Court of Appeals AFFIRMED. No pronouncement as to costs. SO ORDERED. ARTEMIO V. PANGANIBAN Associate Justice Chairman, Third Division W E C O N C U R: ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA Associate Justice Associate Justice

CONCHITA CARPIO MORALES CANCIO C. GARCIA Associate Justice Associate Justice ATTESTATION I attest that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. ARTEMIO V. PANGANIBAN Associate Justice Chairman, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Chairman’s Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. HILARIO G. DAVIDE, JR. Chief Justice Footnotes

1

Rollo, pp. 9-31. Id., pp. 33-41. Penned by Justice Rebecca de GuiaSalvador, with the concurrence of Justices Godardo A. Jacinto (Fourth Division chair) and Eloy R. Bello Jr. (member, now retired). 3 Id., p. 43. 4 CA Decision, p. 9; rollo, p. 41. 5 Penned by Judge Ramon O. De Veyra with the concurrence of Judge Amancio Q. Saga. Presiding Judge (now Presiding Justice) Ernesto D. Acosta dissented. 6 Penned by Presiding Judge (now Presiding Justice) Ernesto D. Acosta with the concurrence of Judge (now Justice) Juanito C. Castañeda, Jr. Judge Amancio Q. Saga dissented. 7 Id., pp. 2-4 & 34-36. 8 The Petition was deemed submitted for decision on June 10, 2004, upon receipt by the Court of respondent’s Memorandum, signed by Atty. Joy Ann Marie G. Nolasco. Petitioner’s Memorandum -- signed by Solicitor General Alfredo L. Benipayo, Assistant Solicitor General Ma. Antonia Edita C. Dizon, and Solicitor Magtanggol M. Castro -- was filed on June 2, 2004. 9 Petitioner’s Memorandum, p. 5; rollo, p. 96. Original in upper case. 10 Entitled "An Act to Maximize the Contribution of Senior Citizens to Nation Building, Grant Benefits and Special Privileges and for other purposes," this law took effect in 1992. See Santos, Jr. v. Llamas, 379 Phil. 569, 577, January 20, 2000. 11 §4.a of RA 7432. 12 Ibid. 13 Republic Act No. (RA) 8424 as amended by RAs 8761 and 9010. Likewise, the term tax credit is not defined in Presidential Decree No. (PD) 1158, otherwise known as the National Internal Revenue Code of 1977 as amended. 14 Garner (ed.), Black’s Law Dictionary (8th ed., 1999), p. 1501. 15 Smith, West’s Tax Law Dictionary (1993), pp. 177-178. 2

Oran and Tosti, Oran’s Dictionary of the Law (3rd ed., 2000), p. 124. 17 Malapo-Agato and San Andres-Francisco, Dictionary of Accounting Terms (2003), p. 258. 18 Oran and Tosti, supra, p. 135. 19 Smith, supra, p. 196. 20 The itemized deductions considered as allowable deductions from gross income include ordinary and necessary expenses, interest, taxes, losses, bad debts, depreciation, depletion of oil and gas wells and mines, charitable and other contributions, research and development expenditures, and pension trust contributions. 21 "While taxable income is based on the method of accounting used by the taxpayer, it will almost always differ from accounting income. This is so because of a fundamental difference in the ends the two concepts serve. Accounting attempts to match cost against revenue. Tax law is aimed at collecting revenue. It is quick to treat an item as income, slow to recognize deductions or losses. Thus, the tax law will not recognize deductions for contingent future losses except in very limited situations. Good accounting, on the other hand, requires their recognition. Once this fundamental difference in approach is accepted, income tax accounting methods can be understood more easily." Consolidated Mines, Inc. v. CTA, 157 Phil. 608, August 29, 1974, per Makalintal, CJ. Underscoring supplied. 22 Smith, supra, pp. 177-178. 23 Id., p. 196. 24 BPI-Family Savings Bank, Inc. v. CA, 386 Phil. 719, 727, April 12, 2000. 25 §4.105-1 of BIR Revenue Regulations No. (RR) 7-95. 26 Commissioner of Internal Revenue v. Seagate Technology (Phils.), Inc., GR No. 153866, February 11, 2005, pp. 13-15. 27 Commissioner of Internal Revenue v. Procter & Gamble Philippine Manufacturing Corp., 204 SCRA 377, 388, December 2, 1991. 16

28

Deoferio Jr. and Tan Torres, Know Your CTRP: Comments on the Amendments to the National Internal Revenue Code under Republic Act No. 8424 (2nd printing, 1999), p. 61. 29 Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 368 Phil. 388, 405-406, June 25, 1999. 30 Pilipinas Kao, Inc. v. CA, 423 Phil. 834, 838-839, 851, December 18, 2001. 31 CA Decision, p. 9; rollo, pp. 40-41. 32 Id., pp. 7-8; id., pp. 39-40. 33 §4.a of RA 7432. 34 D. and E. of Rule V of the "Rules And Regulations in the Implementation of RA 7432, The Act to Maximize the Contribution of Senior Citizens to Nation Building, Grant Benefits and Special Privileges and for other purposes," approved per Resolution No. 1 (Series 1993) issued by the National Economic and Development Authority (NEDA) Social Development Committee. 35 §2.i of RR 2-94, issued August 23, 1993. See also §4 thereof. 36 Gove (Ed. in Chief), Webster’s Third New International Dictionary of the English Language, Unabridged (1976), p. 646. 37 Oran and Tosti, supra, p. 149. 38 Garner (ed.), supra, p. 498. 39 An income statement, profit and loss statement, or statement of income and expenses is a "financial statement prepared from accounts and designed to show the several elements entering into the computation of net income for a given period." Malapo-Agato and San Andres-Francisco, Dictionary of Accounting Terms (2003), p. 136. 40 Valix and Peralta, Financial Accounting, Volume One (2002), p. 347. 41 Editorial Staff of Prentice-Hall, Inc., Encyclopedic Dictionary of Business Finance (2nd printing, 1962), pp. 117-118. See Malapo-Agato and San Andres-Francisco, supra, p. 49. 42 This means that the customer is entitled to a 5% discount, if payment is made within 10 days from the

invoice date. Beyond that, but within 30 days from the invoice date, the gross amount of the invoice price is due. Valix and Peralta, supra, p. 347. 43 Editorial Staff of Prentice-Hall, Inc., supra, pp. 503-504. 44 Garner (Ed.), supra, p. 498. 45 Editorial Staff of Prentice-Hall, Inc., supra, pp. 607-609. 46 Valix and Peralta, supra, p. 453. See Malapo-Agato and San Andres-Francisco, supra, p. 263. 47 Id., p. 453. 48 Editorial Staff of Prentice-Hall, Inc., supra, pp. 607-609. 49 Garner (Ed.), supra, p. 498. 50 Functional, as opposed to the natural, presentation is the traditional and common form of the income statement. Functional presentation classifies expenses according to their function -- whether as part of cost of sales, selling activities, administrative activities, or other operating activities. The Accounting Standards Council (ASC) in the Philippines does not prescribe any format, the choice being based on that which "fairly presents the elements of the enterprise performance." If the functional format is used, an additional disclosure of the nature of the expenses is necessary. Valix and Peralta, supra, pp. 155 & 162. 51 Garner (Ed.), supra, p. 1365. See Valix and Peralta, supra, pp. 156-160 & 453. On the other hand, purchase discounts are deducted -also along with returns, allowances, rebates and other similar revenues -- from gross purchases to arrive at net purchases. 52 Valix and Peralta, supra, p. 347. 53 Id., pp. 347 & 456. 54 Id., p. 347. 55 Except when presented for managerial or cost accounting reports, these items are chiefly internal and are neither disseminated to the general public nor attested to by the external auditors. 56 Cost of goods sold is the most commonly used term referring to a particular section in the financial statements, reports, or notes to financial statements of trading or merchandising concerns. For a manufacturing business,

however, the term used is cost of goods manufactured and sold or cost of goods produced and sold; for a service enterprise, cost of services; and, in general, cost of sales of a business. See Malapo-Agato and San AndresFrancisco, supra, p. 73. 57 Gross income, profit or margin is the "difference between sales revenues and manufacturing costs as an intermediate step in the computation of operating profits or net income." It is also the "excess of sales over the cost of goods sold." Malapo-Agato and San AndresFrancisco, supra, p. 129. More simply, gross sales less sales discounts, returns, allowances, rebates, and other similar expenses equal net sales; and net sales less cost of sales equal gross income. 58 Paragraphs 7 to 10 of §27(A), Chapter IV, Title II of RA 8424 as amended. 59 §106(D)(2), Chapter I, Title IV of RA 8424 as amended. 60 See D. of Rule V of the "Rules And Regulations in the Implementation of RA 7432, The Act to Maximize the Contribution of Senior Citizens to Nation Building, Grant Benefits and Special Privileges and for other purposes," approved per Resolution No. 1 (Series 1993) issued by the National Economic and Development Authority (NEDA) Social Development Committee. 61 Theoretically, an allowance for sales discount account can also be set up by a business establishment in its books of account at the end of its accounting period to reflect its estimates of cash discounts on open accounts based on past experience. The accounting entry for this account is then reversed at the beginning of the next accounting period, so that such discounts can again be normally charged to the sales discount account. Valix and Peralta, supra, p. 348. 62 Commissioner of Internal Revenue v. Vda. de Prieto, 109 Phil. 592, 597, September 30, 1960, per Gutierrez David, J. (citing Miller v. US, 294 US 435, 439-441, 55 S.Ct. 440,442, March 4, 1935; and Lynch v. Tilden Produce Co., 265 US 315, 321-322, 44 S.Ct. 488, 490, May 26, 1924).

63

Molina v. Rafferty, 37 Phil. 545, 555, February 1, 1918, per Malcolm, J. (citing Government ex rel. Municipality of Cardona v. Municipality of Binangonan, 34 Phil. 518, 520521, March 29, 1916; In re Allen, 2 Phil. 630, 640, October 29, 1903; and Pennoyer v. McConnaughy, 11 S.Ct. 699, 706, April 20, 1891). 64 Lim Hoa Ting v. Central Bank of the Philippines, 104 Phil. 573, 580, September 24, 1958 (citing Griswold, A Summary of the Regulations Problem, 54 Harvard Law Review 3, 398, 406, January 1941). 65 Eastern Shipping Lines, Inc. v. Philippine Overseas Employment Administration, 166 SCRA 533, 544, October 18, 1988, per Cruz, J. 66 Lim Hoa Ting v. Central Bank of the Philippines, supra, p. 580. 67 Pilipinas Kao, Inc. v. CA, supra, p. 858. 68 Wise & Co., Inc. v. Meer, 78 Phil. 655, 676, June 30, 1947. 69 Macailing v. Andrada, 31 SCRA 126, 139, January 30, 1970, per Sanchez, J. 70 See Banco Filipino Savings and Mortgage Bank v. Hon. Navarro, 158 SCRA 346, 354, July 28, 1987; and Valerio v. Secretary of Agriculture & Natural Resources, 117 Phil. 729, 733, April 23, 1963. 71 §4.a of RA 7432. 72 See also Manufacturers Hanover Trust Co. and/or Chemical Bank v. Guerrero, 445 Phil. 770, 782, February 19, 2003 (citing Shauf v. CA, 191 SCRA 713, 738, November 27, 1990; Ayala Land, Inc. v. Spouses Carpo, 345 SCRA 579, 585, November 22, 2000; and In re Guariña, 24 Phil. 37, 41, January 8, 1913). 73 San Carlos Milling Co., Inc. v. Commissioner of Internal Revenue, 228 SCRA 135, 142, November 23, 1993, per Padilla, J. 74 §§2.i & 4 of RR 2-94. 75 §230(B), Chapter III, Title VIII of RA 8424 as amended. 76 National Federation of Labor v. NLRC, 383 Phil. 910, 918, March 2, 2000, per De Leon Jr., J. (quoting Fianza v. People’s Law Enforcement Board, 243 SCRA 165, 178, March 31, 1995, per Romero, J.).

77

See City of Cebu v. Spouses Dedamo, 431 Phil. 524, 532, May 7, 2002. 78 Reyes v. National Housing Authority, 443 Phil. 603, 610-611, January 20, 2003 (citing Heirs of Juancho Ardona v. Hon. Reyes, 210 Phil. 187, 197-201, October 26, 1983). 79 See Land Bank of the Philippines v. De Leon, 437 Phil. 347, 359, September 10, 2002 (citing Estate of Salud Jimenez v. Philippine Export Processing Zone, 349 SCRA 240, 264, January 16, 2001). 80 See Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343, 371, July 14, 1989 (citing Powell v. Pennsylvania, 127 US 678, 683, 8 S.Ct. 992, 995, April 9, 1888). 81 Republic v. COCOFED, 423 Phil. 735, 764, December 14, 2001, per Panganiban, J. 82 Id. at 765. 83 National Power Corp. v. City of Cabanatuan, 449 Phil. 233, 248, April 9, 2003 (citing Vitug and Acosta, Tax Law and Jurisprudence [2nd ed., 2000], pp.1-2). 84 Salonga v. Farrales, 192 Phil. 614, 624, July 10, 1981, per Fernandez, J. 85 Break-even is the point at which a business neither generates an income nor incurs a loss from its operations. 86 Items 1 & 2, 2nd paragraph of §1 of RA 7432. 87 1st paragraph of §1 of RA 7432 and §11 of Article XIII of the 1987 Constitution. 88 Ibid. The constitutional references are reiterated in the sponsorship speech delivered on January 23, 1992 by Representative Dionisio S. Ojeda, regarding House Bill No. (HB) 35335, per Committee Report No. 01730, pp 3839 (jointly submitted by the Committee on Revision of Laws, the Committee on Family Relations and Population, and the Committee on Ways and Means). HB 35335 was approved on second reading without any amendment. 89 Deliberations of the Bicameral Conference Committee Meeting on Social Justice, February 5, 1992, pp. 22-24. Italics supplied.

90

Leyte Asphalt & Mineral Oil Co., Ltd. v. Block, Johnston & Greenbaum, 52 Phil. 429, 432, December 14, 1928, per Romualdez, J. 91 City Mayor v. The Chief Police Constabulary, 128 Phil. 674, 687, October 31, 1967. 92 Manila Railroad Co. v. Rafferty, 40 Phil. 224, 229, September 30, 1919, per Johnson, J. (citing State v. Stoll, 84 US 425, 431, 436, 17 Wall. 425, 431, 436, October term, 1873). 93 Ibid, per Johnson, J. (citing Minnesota v. Hitchcock, 185 US, 373, 396-397, 22 S.Ct. 650, 659, May 5, 1902, Cass County v. Gillett, 100 US 585, 593, 10 Otto 585, 593, October term, 1879; and New Jersey Steamboat Co. v. Collector, 85 US 478, 490-491, 18 Wall 478, 490-491, October term, 1873). 94 Not even the provisions of PD 1158 -- reiterated later in RA 8424 as amended -- change the Court’s observations on tax liability, prior tax payments, sales discount, tax deduction, and tax credit. PD 1158 was a general law that preceded RA 7432, a special law; thus, the latter prevails over the former. With all the more reason should the rules on statutory construction apply.

Notes:

Solid Homes v Payawal FIRST DIVISION G.R. No. 84811 August 29, 1989 SOLID HOMES, INC., petitioner, vs. TERESITA PAYAWAL and COURT OF APPEALS, respondents.

CRUZ, J.: We are asked to reverse a decision of the Court of Appeals sustaining the jurisdiction of the Regional Trial Court of Quezon City over a complaint filed by a buyer, the herein private respondent, against the petitioner, for delivery of title to a subdivision lot. The position of the petitioner, the defendant in that action, is that the decision of the trial court is null and void ab initio because the case should have been heard and decided by what is now called the Housing and Land Use Regulatory Board. The complaint was filed on August 31, 1982, by Teresita Payawal against Solid Homes, Inc. before the Regional Trial Court of Quezon City and docketed as Civil Case No. Q-36119. The plaintiff alleged that the defendant contracted to sell to her a subdivision lot in Marikina on June 9, 1975, for the agreed price of P 28,080.00, and that by September 10, 1981, she had already paid the defendant the total amount of P 38,949.87 in monthly installments and interests. Solid Homes subsequently executed a deed of sale over the land but failed to deliver the corresponding certificate of title despite her repeated demands because, as it appeared later, the defendant had mortgaged the property in bad faith to a financing company. The plaintiff asked for delivery of the title to the lot or, alternatively, the return of all the amounts paid by her plus interest. She also claimed moral and exemplary damages, attorney's fees and the costs of the suit. Solid Homes moved to dismiss the complaint on the ground that the court had no jurisdiction, this being vested in the National Housing Authority under PD No. 957. The motion was denied. The defendant repleaded the objection in its answer, citing Section 3 of the said decree providing that "the National Housing Authority shall have exclusive jurisdiction to regulate the real estate trade and business in accordance with the provisions of this Decree." After trial, judgment was rendered in favor of the plaintiff and the defendant was ordered to deliver to her the title to the land or, failing this, to refund to her the sum of P 38,949.87 plus interest from 1975 and until the full amount was paid. She was also awarded P 5,000.00 moral damages, P 5,000.00 exemplary damages, P 10,000.00 attorney's fees, and the costs of the suit.1 Solid Homes appealed but the decision was affirmed by the respondent court, 2 which also berated the appellant for its obvious efforts to evade a legitimate obligation, including its dilatory tactics during the trial. The petitioner was also reproved for its "gall" in collecting the further amount of P 1,238.47 from the plaintiff purportedly for realty taxes and registration expenses despite its inability to deliver the title to the land.

In holding that the trial court had jurisdiction, the respondent court referred to Section 41 of PD No. 957 itself providing that: SEC. 41. Other remedies.-The rights and remedies provided in this Decree shall be in addition to any and all other rights and remedies that may be available under existing laws. and declared that "its clear and unambiguous tenor undermine(d) the (petitioner's) pretension that the court a quo was bereft of jurisdiction." The decision also dismissed the contrary opinion of the Secretary of Justice as impinging on the authority of the courts of justice. While we are disturbed by the findings of fact of the trial court and the respondent court on the dubious conduct of the petitioner, we nevertheless must sustain it on the jurisdictional issue. The applicable law is PD No. 957, as amended by PD No. 1344, entitled "Empowering the National Housing Authority to Issue Writs of Execution in the Enforcement of Its Decisions Under Presidential Decree No. 957." Section 1 of the latter decree provides as follows: SECTION 1. In the exercise of its function to regulate the real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority shall have exclusive jurisdiction to hear and decide cases of the following nature: A. Unsound real estate business practices; B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and C. Cases involving specific performance of contractuala statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. (Emphasis supplied.) The language of this section, especially the italicized portions, leaves no room for doubt that "exclusive jurisdiction" over the case between the petitioner and the private respondent is vested not in the Regional Trial Court but in the National Housing Authority. 3 The private respondent contends that the applicable law is BP No. 129, which confers on regional trial courts jurisdiction to hear and decide cases mentioned in its Section 19, reading in part as follows: SEC. 19. Jurisdiction in civil cases.-Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry into

and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; xxx xxx xxx

(8) In all other cases in which the demand, exclusive of interest and cost or the value of the property in controversy, amounts to more than twenty thousand pesos (P 20,000.00). It stresses, additionally, that BP No. 129 should control as the later enactment, having been promulgated in 1981, after PD No. 957 was issued in 1975 and PD No. 1344 in 1978. This construction must yield to the familiar canon that in case of conflict between a general law and a special law, the latter must prevail regardless of the dates of their enactment. Thus, it has been held thatThe fact that one law is special and the other general creates a presumption that the special act is to be considered as remaining an exception of the general act, one as a general law of the land and the other as the law of the particular case. 4 xxx xxx xxx The circumstance that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication. 5 It is obvious that the general law in this case is BP No. 129 and PD No. 1344 the special law. The argument that the trial court could also assume jurisdiction because of Section 41 of PD No. 957, earlier quoted, is also unacceptable. We do not read that provision as vesting concurrent jurisdiction on the Regional Trial Court and the Board over the complaint mentioned in PD No. 1344 if only because grants of power are not to be lightly inferred or merely implied. The only purpose of this section, as we see it, is to reserve. to the aggrieved party such other remedies as may be provided by existing law, like a prosecution for the act complained of under the Revised Penal Code. 6 On the competence of the Board to award damages, we find that this is part of the exclusive power conferred upon it by PD No. 1344 to hear and decide "claims involving refund and any other claims filed by subdivision lot or condominium unit buyers against the project owner, developer, dealer, broker or salesman." It was therefore erroneous for the respondent to brush aside the well-taken opinion of the Secretary of Justice thatSuch claim for damages which the subdivision/condominium buyer may have against the owner, developer, dealer or salesman, being a

necessary consequence of an adjudication of liability for nonperformance of contractual or statutory obligation, may be deemed necessarily included in the phrase "claims involving refund and any other claims" used in the aforequoted subparagraph C of Section 1 of PD No. 1344. The phrase "any other claims" is, we believe, sufficiently broad to include any and all claims which are incidental to or a necessary consequence of the claims/cases specifically included in the grant of jurisdiction to the National Housing Authority under the subject provisions. The same may be said with respect to claims for attorney's fees which are recoverable either by agreement of the parties or pursuant to Art. 2208 of the Civil Code (1) when exemplary damages are awarded and (2) where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff 's plainly valid, just and demandable claim. xxx xxx xxx Besides, a strict construction of the subject provisions of PD No. 1344 which would deny the HSRC the authority to adjudicate claims for damages and for damages and for attorney's fees would result in multiplicity of suits in that the subdivision condominium buyer who wins a case in the HSRC and who is thereby deemed entitled to claim damages and attorney's fees would be forced to litigate in the regular courts for the purpose, a situation which is obviously not in the contemplation of the law. (Emphasis supplied.)7 As a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular fields assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unreasonably called the fourth department of the government. Statutes conferring powers on their administrative agencies must be liberally construed to enable them to discharge their assigned duties in accordance with the legislative purpose. 8 Following this policy in Antipolo Realty Corporation v. National Housing Authority, 9 the Court sustained the competence of the respondent administrative body, in the exercise of the exclusive jurisdiction vested in it by PD No. 957 and PD No. 1344, to determine the rights of the parties under a contract to sell a subdivision lot. It remains to state that, contrary to the contention of the petitioner, the case of Tropical Homes v. National Housing Authority 10 is not in point. We upheld in that case the constitutionality of the procedure for appeal provided for in PD No. 1344, but we did not rule there that the National Housing Authority and not the Regional Trial Court had exclusive jurisdiction over the cases enumerated in Section I of the said decree. That is what we are doing now. It is settled that any decision rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this Court. 11 The only exception is where the party raising the issue is barred by estoppel, 12 which does not appear in the case before us. On

the contrary, the issue was raised as early as in the motion to dismiss filed in the trial court by the petitioner, which continued to plead it in its answer and, later, on appeal to the respondent court. We have no choice, therefore, notwithstanding the delay this decision will entail, to nullify the proceedings in the trial court for lack of jurisdiction. WHEREFORE, the challenged decision of the respondent court is REVERSED and the decision of the Regional Trial Court of Quezon City in Civil Case No. Q-36119 is SET ASIDE, without prejudice to the filing of the appropriate complaint before the Housing and Land Use Regulatory Board. No costs. SO ORDERED. Narvasa, Gancayco, Griñ;o-Aquino and Medialdea, JJ., concur.

Footnotes 1 Rollo, pp. 6 & 14. 2 Tensuan, J., ponente, with Nocon and Kalalo, JJ., concurring. 3 Under E.O. No. 648 dated Feb. 7, 1981, the regulatory functions conferred on the National Housing Authority under P.D. Nos. 957, 1216, 1344 and other related laws were transferred to the Human Settlements Regulatory Commission, which was renamed Housing and Land Use Regulatory Board by E.O. No. 90 dated Dec. 17, 1986. 4 Manila Railroad Co. v. Rafferty, 40 Phil. 224 (1919); Butuan Sawmill, Inc. v. City of Butuan, 16 SCRA 758-1 Bagatsing v. Ramirez, 74 SCRA 306. 5 59 C.J., 1056-1058. 6 Article 316. 7 Min. of Justice Op. No. 271, s. 1982. 8 Cooper River Convalescent Ctr., Inc. v. Dougherty, 356 A. 2d 55, 1975. 9 153 SCRA 399. 10 152 SCRA 54. 11 Trinidad v. Yatco, 1 SCRA 866; Corominas, Jr. v. Labor Standards Commission, 2 SCRA 721; Sebastian v. Gerardo, 2 SCRA 763; Buena v. Sapnay, 6 SCRA 706.

12 Tijam v. Sibonghanoy, 23 SCRA 29; Philippine National Bank v. IAC, 143 SCRA 299; Tan Boon Bee & Company, Inc. v. Judge Jarencio, G.R. No. 41337, June 30, 1988.

SOJ v Lantion EN BANC G.R. No. 139465

January 18, 2000

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty — 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty — 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years on each count); E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty — less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts. In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date. SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 9994684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer

designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty). 1âw phi1.nêt

With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly

evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or

accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasijudicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As

described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to counsel and the right against selfincrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result — the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization

of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components — substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the

alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this

certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity — the Department of State — which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency

will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fasttracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition papers, he may hold that federal and statutory requirements, which are significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the requested state has the power to deny the behest from the requesting state. Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not forward the request to the Department of Justice for the filing of the extradition petition since non-compliance with the aforesaid requirements will not vest our government with jurisdiction to effect the extradition. In this light, it should be observed that the Department of Justice exerted notable efforts in assuring compliance with the requirements of the law and the treaty since it even informed the U.S. Government of certain problems in the extradition papers (such as those that are in Spanish and without the official English translation, and those that are not properly authenticated). In fact, petitioner even admits that consultation meetings are still supposed to take place between the lawyers in his Department and those from the U.S. Justice Department. With the meticulous nature of the evaluation, which cannot just be completed in an abbreviated period of time due to its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate and prompt action where notice and hearing can be dispensed with? Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is private respondent precluded from enjoying the right to notice and hearing at a later time without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if adverse to the person involved, may cause his immediate incarceration. The grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed with and shelved aside. Apart from the due process clause of the Constitution, private respondent likewise invokes Section 7 of Article III which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The above provision guarantees political rights which are available to citizens of the Philippines, namely: (1) the right to information on matters of public concern, and (2) the corollary right of access to official records documents. The general right guaranteed by said provision is the right to information on matters of public concern. In its implementation, the right of access to official records is likewise conferred. These cognate or related rights are "subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution? First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states

where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence. Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus

is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto? The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's nonperformance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . .

(at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible. We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion. Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department. There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law. There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern.2 I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents. I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural due process — founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3 Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process — the more litigated of the two — focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored. A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the Executive on the request for extradition by the foreign State cannot totally be discounted. The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file

his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made. I vote to deny the petition.

KAPUNAN, J., separate concurring opinion; I vote to dismiss the petition, both on technical and substantial grounds. The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to: . . . maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.) The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2 Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us. Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3 Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit. The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution. Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private

respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access. While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them. While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries. Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution. In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed. With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole. Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement. But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion; As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations. The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land. For this primordial reason, I vote to DENY the petition. Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court — in the exercise of its judicial power to find and state what the law is — has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law. As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties. Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted

augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago. That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges. There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion; I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved. However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives. I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed why he may be deported from his own country. I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later. Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent. The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available. 2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information. 3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously. I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" — are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine Constitution. Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike. Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states. The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around. The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure

of the same grand jury information to the Philippine Government and its law enforcement personnel. Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines. Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence. I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement. It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated. There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him. Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines. The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process. In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided.

The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose." The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State. 1âwphi1.nêt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion; If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion. Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida. A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of

extradition into four (4) periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations."2 It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee — whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states.5 Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ." Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the

elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law. We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13 I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments, the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration. The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences.

These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under which the extraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17 The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonization between said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy. Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition

proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court. The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has adopted a highly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience. In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition. Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides: PROVISIONAL ARREST 1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. 2. The application for provisional arrest shall contain: a) a description of the person sought;

b) the location of the person sought, if known; c) a brief statements of the facts of the case, including, if possible, the time and location of the offense; d) a description of the laws violated; e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and f) a statement that a request for extradition for the person sought will follow. 3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial. 4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7. In relation to the above, Section 20 of P.D. No. 1069 provides: Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree. (b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph. (c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request. (d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody. The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must

comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest. In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides: Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case. Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law. Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities.25 Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing

persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz: WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations; WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . . The increasing incidence of international and transnational crimes, the development of new technologies of death, and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness. At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes. I vote to grant the petition.

PANGANIBAN, J., dissenting opinion; With due respect, I dissent. The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him.

Two Staged in Extradition There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited. The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court. Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision. Evaluation Stage Essentially Ministerial The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under non-military penal legislation.2 Upon a finding of the secretary of foreign affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3 When the Right to Notice and Hearing Becomes Available According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due process of law. He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads: In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice. xxx

xxx

xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court. However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition. In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6 Mark Jimenez Not in Jeopardy of Arrest Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request. It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full

opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10 Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures. In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought. 1âwphi1.nêt

The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect. The Need for Respondent Jimenez to Face Charges in the US One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient. Conclusion In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process — particularly the right to be heard — finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings. WHEREFORE, I vote to grant the Petition.

Footnotes VITUG, J., separate opinion; Sec. 7. The right of the people to information of public concern shall be recognized. Access to official records, and to documents, and papers a pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 1

Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170 SCRA 256. 2

Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals, 193 SCRA 597. 3

Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers Review, Vol. IX, 30 April 1995, p. 1. 4

5

Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.

KAPUNAN, J., separate concurring opinion; 1

Annex "L," petition.

2

Petition, p. 4.

Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334 (1976). 3

4

Stanley v. Illinois, 1405 U.S. 645, 647.

PUNO, J., dissenting opinion; Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990). 1

International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987). 2

The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981). 3

They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing and Kent. See Sheareer, Extradition in Internal Law, p. 24 (1971). 4

They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied, Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24. 5

6

119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).

See Universal Declaration of Human Rights (1948), The International Covenant on Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and Political Rights (1966). 7

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) otherwise known as "Bill of Rights for Women" was adopted by the UN General Assembly in December 1979. As of November 1999, one hundred sixty seven (167) states including the Philippines have ratified or acceded to it. See Statement of Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of Women, Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999. 8

Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp. 44 (1991). 9

See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966). 10

The Conquering March of an Idea, Speech before the 72nd Annual Meeting of the American Bar Association, St. Louis, Mo., September 6, 1949. 11

See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and L. Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968). 12

13

Bassiouni, supra, p. 625.

US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936). 14

Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev., vol. 51, pp. 62-63, (Winter, 1993). 15

16

Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).

Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July 1991). 17

18

Sec. 9, P.D. No. 1069.

19

Ibid.

20

Sec. 2, Rule 133, Revised Rules of Court.

21

Sec. 10, P.D. No. 1069.

Referring to the Regional Trial Courts and the Court of Appeals whose decisions are deemed final and executory. See Section 12, P.D. No. 1069. 22

23

Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.

24

Spencer, op cit., citing decided cases.

Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990). 25

26

Semmelman. op cit., p. 1206.

PANGANIBAN, J., dissenting opinion; 1

35 CJS § 14(1) Extradition 410. See also ponencia, p. 25.

2

See ponencia, pp. 11-12.

3

Ibid., Section 5, pars. (1) & (2), PD 1069.

4

Ponencia, p. 18.

5

TSN, p. 76.

6

See also TSN, p. 30.

7

§ 5 (2) & (3) in rel. to § 10, PD 1069. See also last par., p. 13 of ponencia.

18 USCS § 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d § 109 Extradition 828. 8

9

18 USCS § 3184, n 64 Criminal Procedure 458.

10

See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.

11

31A Am Jur 2d Extradition § 14.

Heirs of Santiago Pastoral v SPW and Communications

THIRD DIVISION G.R. No. L-44485 June 27, 1988 HEIRS OF SANTIAGO PASTORAL and AGUSTIN BATO, petitioners-appellants, vs. THE SECRETARY OF PUBLIC WORKS and COMMUNICATIONS, THE CITY ENGINEER OF DAGUPAN CITY and LEONARDO ESPANOL, respondents-appellees. Paulino S. Cabugao for petitioners-appellants.

GUTIERREZ, JR., J.: This case was certified to us by the Court of Appeals pursuant to Sections 17 and 21 of the Judiciary Act, as amended in relation to Section 3, Rule 50 of the Rules of Court on the ground that the issues raised are pure questions of law. The main issue centers on the authority of the Secretary of Public Works and Communications under Republic Act 2056 to declare the construction of dikes encroaching into public navigable waters as a public nuisance and to order their removal.

Sometime in October 1958, residents of Bacayao Norte, Caranglaan, and Mayombo Districts of Dagupan City led by Leonardo Espanol filed complaints with the Secretary of Public Works and Communications (hereinafter referred to as Secretary) denouncing the heirs of Santiago Pastoral and Agustin Bato for "alleged encroachments into the Tulao River ... to the prejudice of public interest." The complaints were docketed as Cases Nos. RA-2056-26 and RA-2056-37 respectively. The Secretary designated the City Engineer of Dagupan City to conduct hearings in the two cases. All the parties were notified of the hearings set for both cases. Based on the evidence submitted by the parties, the Secretary rendered two separate decisions ordering the removal of the encroachments complained of within thirty (30) days from receipt of notice. Thus, in Case No. RA-2056-26, the heirs of Santiago Pastoral were ordered to remove the fishpond dikes indicated as Encroachments Nos. 1, 2, 3 and 4 in Exhibit "A" while in Case No. RA-2056-37, Agustin Bato was ordered to remove the fishpond dikes indicated as Encroachment No. 5 in Exhibit "A." The Secretary ruled that encroachments Nos. 1, 2, 3, 4 and 5 in Exhibit "A" had been illegally constructed within the channel of Tulao River. The Secretary declared the encouragement croachments as public nuisances under Republic Act 2056. Their motion for reconsideration having been denied by the Secretary, the respondents filed in the Court of First Instance of Pangasinan a petition for certiorari and prohibition with a prayer for a writ of preliminary injunction against the Secretary, the City Engineer of Dagupan City and Leonardo Espanol. The case was docketed as Civil Case No. D-833. The petitioners (respondents in the administrative cases) alleged "... that respondent City Engineer informed petitioners that the 30-day period given them to remove the fishpond

dikes has expired and that his office will proceed to demolish the dikes on orders from the Secretary of Public Works and Communications; that they have title over the alleged encroachments and a fishpond permit issued by the Department of Agriculture and Natural Resources, through the Bureau of Fisheries, authorizing them to construct a fishpond on an adjoining parcel of their property not covered by title." The petitioners sought the annulment of the decision of the Secretary of Public Works and Communications on the ground of lack of jurisdiction and the issuance of a writ of prohibition commanding the respondents to desist absolutely and perpetually from further molesting in any manner the petitioners and interfering with the exercise of their rights over the lands in question. In his answer, the Secretary invoked his authority to remove the encroachments under Republic Act No. 2056 and stated that he had acted lawfully and justly and within the sound limits of his authority and jurisdiction thereunder. The parties agreed to submit the case for judgment on the pleadings and were allowed by the lower court to submit their respective memoranda. The trial court then rendered a decision in favor of the petitioners-appellants prompting the Secretary to interpose an appeal to the Court of Appeals. The Secretary assigned a single assignment of error, to wit: THE TRIAL COURT COMMITTED ERROR IN HAVING ANNULLED THE DECISIONS RENDERED BY THE SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, IN CASES JURISDICTION, AND IN PERMANENTLY ENJOINING SAID SECRETARY FROM IMPLEMENTING THE ORDER TO REMOVE THE ENCROACMENTS PLACED BY THE APPEALLEES ON THE TULAO RIVER. (At p. 17, Rollo) In support of this lone assignment of error, the petitioner raised the following arguments: 1) The Secretary was duly vested with jurisdiction both over the parties and subject matter of the controversy. 2) The Secretary duly conformed to the requirements of due process in the exercise of his authority under Republic Act No. 2056. 3) The Secretary did not, as concluded by the court a quo, rule on the validity of appellees' titles over the lots in question. 4) The issuance of fishpond permits by the Bureau of Fisheries did not preclude the Secretary from conducting due investigation and in ruling upon the same. 5) The Secretary's findings of fact are entitled to respect from the courts. (At pp. 17-18, Rollo) As stated earlier, the main issue hinges on the authority of the Secretary of Public Works and Communications under Republic Act 2056 to declare that the construction or building of dams, dikes or any other works which encroach into any public navigable river, stream,

coastal waters and any other navigable public waters or waterways as well as the construction or building of dams, dikes or any other works in areas declared as communal fishing grounds is prohibited and to order their removal as "public nuisances or as prohibited constructions." The lower court concluded that the Secretary abused his authority under Republic Act No. 2056 on the following points: (1) The Secretary passed judgment on the validity of the titles of the petitioners over Encroachments 3, 4 and 5 when he declared such titles as null and void; and (2) the dikes denominated as Encroachments Nos. 1 and 2 were constructed by virtue of a permit legally issued in favor of the late Santiago Pastoral by the Bureau of Fisheries on July 19, 1948 because the area was deemed fit by said Office of fishpond purposes, and the construction of such dikes would not impede the flow of the river. The lower court opined that in constructing the dikes, the petitioners were only exercising a right legally granted to them and that "they shall remain to enjoy the privilege until such time that their permit shall have been cancelled." The petition is impressed with merit. The records belie the lower court's finding that the Secretary passed judgment on the titles of the lots in question. In connection with Encroachments Nos. 3 and 4, the Heirs of Santiago Pastoral presented a certified true copy of Original Certificate of Title No. 9 issued by the Register of Deeds of Dagupan City to show that the encroachments are within their titled lands. The Secretary, however, stated in his decision: As regards the last two encroachments, the evidence shows that the southern boundary thereof is the original bank of the Tulao River. The properties in question, titled as they are, are clearly within the bed of the river. Even the testimony of Aniceto Luis, a representative of the Bureau of Lands in the investigation, shows without doubt, that the encroachments are within the river bed as may be gleaned from the following: Q As it appears in the record, title was granted to Santiago Pastoral on this alleged encroachment No. 3 and 4 which falls squarely on the Tulao River and during the ocular inspection by the undersigned, the fact became evident that the river is highly navigable. Now, what explanation can you make as to why title was issued over a portion of a river, public river at that, which is highly navigable? A So far, our record does not show that it is a navigable river, but it is just stated that "the area applied for is a part of the Tulao River and therefore it is covered by water." (From the report of the Deputy Public Land Inspector E. Ventura dated March, 1954 in connection with the Sales application of Santiago Pastoral.)

Q So in the report, it was stated that the land applied for by Santiago Pastoral is entirely covered by water and part of the river? A Yes, sir, The propriety of the title over the last two encroachments is beyond the jurisdiction of this Office to inquire into, much less question, although it seems worth looking into by the proper authorities. Be that as it may, the fact remains that the dikes and other works therein are encroachments into the Tulao River and, as such, are public nuisances within the contemplation of Republic Act No. 2056. (pp. 12, Decision in RA-2056-26) Petitioner Agustin Bato also submitted a verified copy of the Original Certificate of Title No. 2 to show that encroachment No. 5 was privately owned. Anent this argument, the Secretary said: xxx xxx xxx ... It has been found, however, that the land in question, although titled, is within the bed of the Tulao River. Even the representative of the Bureau of Lands bolstered such finding as may be gleaned from the following portion of his testimony: Q But you stated that the technical description falls squarely to the Tulao River. What I am after is the condition of the land when the application was made. Do you have that in your records? " A Yes sir. Q Now, if I show the certificate of title that covered the portion of this land, will you agree with me that the technical description is the same as that appearing in your record? A Yes, they are the same. Q Mr. Luis, we have the technical description appearing in the certificate of title which you admitted to be the same as appearing in your record plotted, and it appears that the same land covered by the description falls squarely on the river? Is it still on the side of the river or in the river itself? I am referring to the encroachment No. 5 by Agustin Bato. A No, if this encroachment made by Agustin Bato is the same land as described in the technical description from the title, then it is within the river."

Moreover, Section 39 of Act No. 496, in defining the scope and efficacy of a certificate of title under the Torrens System, established some exceptions which the force of said title does not reach or affect. Among them are properties of the public domain. Since the portion appropriated is of public dominion, registration under Act No. 496 did not make the possessor a true owner thereof. (Celso Ledesma v. The Municipality of Iloilo, Concepcion Lopez, Maximo M. Kalaw and wife, and Julia Ledesma, defendants, 49 Phil. 769). (pp. 1-2, Decision in RA-2056-37) In effect, the Secretary passed judgment only to the extent that, although the encroachments were inside titled properties, they are within the bed of a river. With this factual finding, he declared the encroachments, converted into fishponds within the Tulao River, as prohibited and ordered their removal pursuant to his authority under Republic Act 2056. He never declared that the titles of the petitioners over the lots in question were null and void. The Secretary's authority to determine questions of fact such as the existence of a river even inside titled properties was recognized in the cases of Lovina v. Moreno, (9 SCRA 557) and Taleon vs. Secretary of Public Works and Communications (20 SCRA 69). We stated that the fact-finding power of the Secretary of Public Works and Communications is merely "incidental to his duty to clear all navigable streams of unauthorized constructions and, hence its grant did not constitute an unlawful delegation of judicial power. ... that although the titles were silent as to the existence of any stream inside the property, that did not confer a right to the stream, it being of a public nature and not subject to private appropriation, even by prescription." In the instant cases, the residents along the Tulao River complained about obstructions on the river. From a width of 70 to 105 meters, the river had been reduced to a width of only 10 to 15 meters. The river was navigable and even at low-tide was two to three meters deep. As regards the lower court's finding that the dikes designated as Encroachments Nos. 1 and 2 were constructed under the petitioners' Fishpond Permit issued by the Bureau of Fisheries in 1948 and, therefore, must be respected, the Secretary counters that such issuance of fishpond permit did not preclude him from conducting due investigation pursuant to his authority under Republic Act 2056. We agree. Section 1 of Republic Act 2056 is explicit in that "Any provision or provisions of law to the contrary notwithstanding, the construction or building of dams, dikes ... which encroaches into any public navigable river, stream, coastal waters and any other navigable public waters or waterways ... shall be ordered removed as public nuisance or as prohibited construction as herein provided ... The record shows that the petitioners' fishpond permit was issued in 1948 while the Act took effect on June 3, 1958. Therefore, the Secretary's more specific authority to remove dikes constructed in fishponds whenever they obstruct or impede the free passage of any navigable river or stream or would cause inundation of agricultural areas (Section 2, Republic Act 2056) takes precedence. Moreover, the power of the Secretary of Public Works to investigate and clear public streams from unauthorized encroachments and obstructions was granted as early as Act 3708 of the old Philippine Legislature and has been upheld by this Court in the cases of Palanca v. Commonwealth (69 Phil. 449) and Meneses v. Commonwealth (69 Phil. 647). The same rule was applied in Lovina v. Moreno, (supra) Santos etc., et al. v. Secretary of Public Works and Communications (19 SCRA 637).

All in all, we find no grave abuse of discretion or an illegal exercise of authority on the part of the Secretary of Public Works and Communications in ordering the removal of the encroachments designated as Nos. 1, 2, 3, 4 and 5 of Exhibit "A". The rules of due process were observed in the conduct of investigation in the two cases. The parties concerned were all notified and hearings of the two cases were conducted by the Secretary through the City Engineer of Dagupan City. All parties were given opportunity to present evidence to prove their claims after which the Secretary rendered separate decisions pursuant to Republic Act 2056. The factual findings of the Secretary are substantiated by evidence in the administrative records. In the absence of any illegality, error of law, fraud or imposition, none of which were proved by the petitioners in the instant case, said findings should be respected. (Lovina v. Moreno, supra; Santos, etc., et al. v. Secretary of Public Works and Communications, supra; See also Borja v. Moreno, 11 SCRA 568; Taleon v. Secretary of Public Works and Communications, 20 SCRA 69). WHEREFORE, the instant appeal is GRANTED. The questioned decision of the Court of First Instance of Pangasinan is REVERSED and SET ASIDE. The decisions of the then Secretary of Public Works and Communications in Cases No. RA 2056-26 and No. RA-205637 are REINSTATED. SO ORDERED. Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

GSIS v CSC EN BANC G.R. No. 96938 October 15, 1991 GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), petitioner, vs. CIVIL SERVICE COMMISSION, HEIRS OF ELIZAR NAMUCO, and HEIRS OF EUSEBIO MANUEL, respondents. Benigno M. Puno for private respondents. Fetalino, Llamas-Villanueva and Noro for CSC.

NARVASA, J.: In May, 1981, the Government Service Insurance System (GSIS) dismissed six (6) employees as being "notoriously undersirable," they having allegedly been found to be connected with irregularities in the canvass of supplies and materials. The dismissal was based on Article IX, Presidential Decree No. 807 (Civil Service Law) 1 in relation to LOI 14-A and/or LOI No. 72. The employees' Motion for Reconsideration was subsequently denied. Five of these six dismissed employees appealed to the Merit Systems Board. The Board found the dismissals to be illegal because effected without formal charges having been filed or an opportunity given to the employees to answer, and ordered the remand of the cases to the GSIS for appropriate disciplinary proceedings. The GSIS appealed tothe Civil Service Commission. By Resolution dated October 21, 1987, the Commission ruled that the dismissal of all five was indeed illegal and disposed as follows: WHEREFORE, it being obvious that respondents' separation from the service is illegal, the GSIS is directed to reinstate them with payment of back salaries and benefits due them not later than ten (10) days from receipt of a copy hereof, without prejudice to the right of the GSIS to pursue proper disciplinary action against them. It is also directed that the services of their replacement be terminated effective upon reinstatement of herein respondents. xxx

xxx

xxx

Still unconvinced, the GSIS appealed to the Supreme Court (G.R. Nos. 80321-22). Once more, it was rebuffed. On July 4, 1988 this Court's Second Division promulgated a Resolution which:

a) denied its petition for failing to show any grave abuse of discretion on the part of the Civl Service Commission, the dismissals of the employees having in truth been made without formal charge and hearin, and b) declared that reinstatement of said five employees was proper, "without prejudice to the right of the GSIS to pursue proper disciplinary action against them;" c) MODIFIED, however, the challenged CSC Resolution of October 21, 1987 "by elminating the payment of back salaries to private respondents (employees) until the outcome of the disciplinary proceedings is known, considering the gravity of the offenses imputed to them ..., 2 d) ordered reinstateement only of three employees, namely: Domingo Canero, Renato Navarro and Belen Guerrero, "it appearing tht respondents Elizar Namuco and Eusebio Manuel have since passed away." 3

On January 8, 1990, the aforesaid Resolution of July 4, 1988 having become final, the heirs of Namuco and Manuel filed a motion for execution of the Civil Service Commission Resolution of October 21, 1987, supra. The GSIS opposed the motion. It argued that the CSC Resolution of October 21, 1987 — directing reinstatement of the employees and payment to them of back salaries and benefits — had been superseded by the Second Division's Resolution of July 4, 1988 — precisely eliminating the payment of back salaries.

The Civil Service Commission granted the motion for execution in an Order dated June 20, 1990. It accordingly directed the GSIS "to pay the compulsory heirs of deceased Elizar Namuco and Eusebio Manuel for the period from the date of their illegal separation up to the date of their demise." The GSIS filed a motion for reconsideration. It was denied by Order of the CSC dated November 22, 1990.

Once again the GSIS has come to this Court, this time praying that certiorari issue to nullify the Orders of June 20, 1990 and November 22, 1990. Here it contends that the Civil Service Commission has no pwer to execute its judgments and final orders or resolutions, and even conceding the contrary, the writ of execution issued on June 20, 1990 is void because it varies this Court's Resolution of July 4, 1988.

The Civil Service Commission, like the Commission on Elections and the Commission on Audit, is a consitutional commission invested by the Constitution and relevant laws not only with authority to administer the civil

but also with quasi-judicial powers. 5 It has the authority to hear and decide administrative disciplinary cases instituted directly with it or brought to it on appeal. 6 The Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision it within sixty days from the date of its submission for on certiorari by any aggrieved party within thirty days from receipt of a copy thereof. 7 It has the power, too, sitting en banc, to promulgate its own rules concerning pleadings and practice before it or before any of its offices, which rules should not however diminish, increase, or modify substantive rights. 8 service, 4

On October 9, 1989, the Civil Service Commission promulgated Resolution No. 89-779 adopting, approving and putting into effect simplified rules of procedure on administrative disciplinary and protest cases, pursuant

Those rules provide, among other things, that decision in "administrative disciplinary cases" shall be immediately executory unless a motion for reconsideration is seasonably filed. If the decision of the Commission is brought to the Supreme Court on certiorari, the same shall still be executory unless a restraining order or preliminary injunction is issued by the High Court." 11 This is similar to a provision in the former Civil Service Rules authorizing the Commissioner, "if public interest so warrants, ... (to) order his decision executed pending appeal to the Civil Service Board of Appeals." 12 The provisions are analogous and entirely consistent with the duty or responsibility reposed in the Chairman by PD 807, subject to policies and resolutions adopted by the Commission, "to tothe authority granted by the constitutional and statutory provisions above cited, as well as Republic Act No. 6713. 9 10

enforce decision on administrative discipline involving officials of the Commission," 13 as well as with Section 37 of the same decree declaring that an appeal to the Commission 14 "shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal." In light of all the foregoing consitutional and statutory provisions, it would appear absurd to deny to the Civil Service Commission the power or authority or order execution of its decisions, resolutions or orders which, it should be stressed, it has been exercising through the years. It would seem quite obvious that the authority to decide cases is inutile unless accompanied by the authority to see taht what has been decided is carried out. Hence, the grant to a tribunal or agency of adjudicatory power, or the authority to hear and adjudge cases, should normally and logically be deemed to include the grant of authority to enforce or execute the judgments it thus renders, unless the law otherwise provides. In any event, the Commission's exercise of that power of execution has been sanctioned by this Court in several cases. In Cucharo v. Subido, 15 for instance, this Court sustained the challenged directive of the Civil Service Commissioner, that his decision "be executed immediately 'but not beyond ten days from receipt thereof ...". The Court said: As a major premise, it has been the repeated pronouncement of this Supreme Tribunal that the Civil Service Commissioner has the discretion toorder the immediate execution in the public interst of his decision separating petitioner-appellant from the service, always sbuject however to the rule that, in the event the Civil Service Board of Appeals or the proper court determines that his dismissal is illegal, he should be paid the salary corresponding to the period of his separation from the service unitl his reinstatement. Petitioner GSIS concedes that the heirs of Namuco and Manuel "are entitled tothe retirement/death and other benefits due them as government employees" since, at the time of their death, they "can be considered not to have been separated from the separated from the service." 16 It contend, however, that since Namuco and Manuel had not been "completely exonerated of the administrative charge filed against them — as the filing of the proper disciplinary action was yet to have been taken had death not claimed them" — no back salaries may be paid to them, although they "may charge the period of (their) suspension against (their) leave credits, if any, and may commute such leave credits to money

this, on the authority of this Court's decision in Clemente v. Commission on Audit. 18 It is in line with these considerations, it argues, that the final and executory Resolution of this Court's Second Division of July 4, 1988 should be construed; 19 and since the Commission's Order of July 20, 1990 maikes a contrary disposition, the latter order obviously cannot prevail and must be deemed void and ineffectual. value;" 17

This Court's Resolution of July 4, 1988, as already stated, modified the Civil Service Commission's Resolution of October 21, 1987 — inter alia granting back salaries tothe five dismissed employees, including Namuco and Manuel — and pertinently reads as follows: We modify the said Order, however, by eliminating the payment of back salaries to private respondents until the outcome of the disciplinary proceedings is known, considering the gravity of the offense imputed to them in connection with the irregularities in the canvass of supplies and materials at the GSIS.

The reinstatement order shall apply only to respondents Domingo Canero, Renato Navarro and Belen Guerrero, it appearing that respondents Elizar Namuco and Eusebio Manuel have since passed away. .... On the other hand, as also already stated, the Commission's Order of June 20, 1990 directed the GSIS "to pay the compulsory heirs of deceased Elizar Namuco and Eusebio Manuel for the period from the date of their illegal separation up to the date of their demise." The Commission asserted that in promulgating its disparate ruling, it was acting "in the interest of justice and for other humanitarian reasons," since the question of whether or not Namuco and Manuel should receive back salaries was "dependent on the result of the disciplinary proceedings against their co-respondents in the administrative case before the GSIS," and since at the tiem of their death, "no formal charge ... (had) as yet been made, nor any finding of their personal culpability ... and ... they are no longer in a position to refute the charge." The Court agrees that the challenged orders of the Civil Service Commission should be upheld, and not merely upon compassionate grounds, but simply because there is no fair and feasible alternative in the circumstances. To be sure, if the deceased employees were still alive, it would at least be arguable, positing the primacy of this Court's final dispositions, that the issue of payment of their back salaries should properly await the outcome of the disciplinary proceedings referred to in the Second Division's Resolution of July 4, 1988. Death, however, has already sealed that outcome, foreclosing the initiation of disciplinary administrative proceedings, or the continuation of any then pending, against the deceased employees. Whatever may be said of the binding force of the Resolution of July 4, 1988 so far as, to all intents and pursposes, it makes exoneration in the adminstrative proceedings a condition precedent to payment of back salaries, it cannot exact an impossible performance or decree a useless exercise. Even in the case of crimes, the death of the offender exteinguishes criminal liability, not only as to the personal, but also as to the pecuniary, penalties if it occurs before final judgment. 20 In this context, the subsequent disciplinary proceedings, even if not assailable on grounds of due process, would be an inutile, empty procedure in so far as the deceased employees are concerned; they could not possibly be bound by any substatiation in said proceedings of the original charges: irrigularities in the canvass of supplies and materials. The questioned order of the Civil Service Commission merely recognized the impossibility of complying with the Resolution of July 4, 1988 and the legal futility of attempting a post-mortem investigation of the character contemplated. WHEREFORE, the petition is DISMISSED, without pronouncement as to costs. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Melencio-Herrera, J., is on leave.

# Footnotes 1 Sec. 40 of said PD 807 (sub-head, Summary Proceedings) provides that "No formal investigation is necessary, and the respondent may be

immediately removed or dismissed if any of the following circumstances is present: (a) When te charge is serious and the evidence of guilt is stron; (b) When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty of the present charge; (c) When the respondent is notoriously undesirable. ...." (Emphasis supplied.) However, said Section 40 has since been repealed by R.A. No. 6654, approved on May 20, 1988 and published in the Official Gazette on May 30, 1988 (Abalos v. Civil Service Commission, et al., G.R. No. 95861, April 19, 1991) 2 Emphasis supplied. 3 Emphasis supplied. 4 SECS. 1, (1), 3, ART. IX-B, 1987 Constitution. 5 Secs. 1, 6, 7, ART, IX-A, 1987 Constitution; SEE Secs. 659-661, Revised Administrative Code and CA 598 (repealed by RA 2260, which act in turne repealed by PD 807. 6 SEC. 9(j), PD 807; SEE Sec. 16 (f), (g), (i) and (j); and SECS. 32 and 33 of RA 2260. 7 SEC. 7, ART. IX Constitution. 8 SEC. 6, ART. IX, Constitution; SEE Sec. 9 (b), PD 807. 9 "An Act Establishing a Code of Conduct and Ethical Standards for Public Officials and Employees, ...," requiring inter alia that public officials and employees shall simplify and systematize policy, rules and procedures and avoid red tape to better serve the public. 10 SEC. 3, Rule X (Decision) under the sub-head, "A. Rules on Administrative Disciplinary Cases" 11 As regards "protest cases," the Rules similarly provide that decisions therein of the Commission "shall be executory, unless a motion for reconsideration is seasonably filed, in which case the execution of the decision shall be held in abeyance" (Sec. 1, Rule VIII ["Execution of Decision"] under the sub-head, "B. Rules on Protest Cases." 12 SEC. 28, under the sub-head, "D. Procedure in Administrative Proceedings," Rule XVIII ("Discipline") 13 Sec. 10 (a) (3) 14 In "administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary, or transfer, removal or dismissal from office"

15 37 SCRA 523, citing SEC. 35, Civil Service of Act of 1959; Yarcia v. City of Baguio, 33 SCRA 419; Trocio v. Subido, 20 SCRA 354; Cabigao v. del Rosario, 6 SCRA 578 (1962); Austria v. Auditor General, 19 SCRA 79, 83-84; Gonzales v. Hernandez, 2 SCRA 228, 233-234). 16 Rollo, p. 7; p. 40; p. 8 of petitioner's "Reply to Comment" dated May, 29, 1991. 17 Id., p. 7; pp. 39-40; 7-8, Id. 18 128 SCRA 297, citing Octot v. Ibanez, et al., 111 SCRA 79 and San Miguel Corporation v. Secretary of Labor, 64 SCRA 56. 19 SEE footnotes 2 and 3 and related text, supra. 20 ART. 89 (No. 1), Revised Penal Code.

Besaga v Acosta

SECOND DIVISION G.R. No. 194061, April 20, 2015 EMELIE L. BESAGA, Petitioner, v. SPOUSES FELIPE ACOSTA AND LUZVIMINDA ACOSTA AND DIGNA MATALANG COCHING, Respondent. DECISION BRION, J.: We resolve the present petition for review on certiorari1 assailing the October 30, 2009 decision2 and the October 1, 2010 resolution3 of the Court of Appeals (CA) in CA-G.R.'SP No. 100616. The CA affirmed the decision4 of the Office of the President setting aside the resolution5 of the Department of Environment and Natural Resources (DENR) Secretary. The DENR Secretary earlier affirmed the orders dated December 1, 20036 and July 26, 20047 of the DENR Regional Executive Director (RED), Region IV-B-MIMAROPA.8 The Antecedents9 The dispute involved Lot Nos. 4512 and 4514 located at Barangay Port Barton, San Vicente, Palawan, which are parts of a six-hectare timberland. On February 11, 2003, Emelie L. Besaga (petitioner) applied for a Special Land Use Permit (SLUP) for Lot Nos. 4512, 4513 and 4514 for a bathing establishment. According to the petitioner, the lots are covered by Tax Declaration No. 048 in the name of her father, the late Arturo Besaga, Sr. who allegedly occupied the land during his lifetime. On February 13, 2003, spouses Felipe and Luzviminda Acosta (respondent spouses) also applied for SLUP for a bathing establishment over Lot Nos. 4512 and 4514. According to the respondent spouses, they acquired Lot Nos. 4512 and 4514 through a March 19, 1998 Affidavit of Waiver of Rights executed by Rogelio Maranon, a registered survey claimant, and a February 9, 1999 Joint Affidavit of Waiver of Rights, executed by Arturo Besaga, Jr.,10 and Digna Matalang Coching (another respondent in this case), also registered survey claimants. On September 10, 2003, the respondents challenged the petitioner's SLUP

application before the DENR. On December 1, 2003, the RED issued the order giving due course to the petitioner's SLUP application and rejecting the respondents' SLUP application. The RED later denied the respondents' motion for reconsideration on July 26, 2004. The respondent spouses received the July 26, 2004 order on August 16, 2004. They tiled on. August 25, 2004, through registered mail, an Appeal Memorandum to the Office of the DENR Secretary, copy furnished the petitioner's lawyer and the Office of the RED. The appeal fee was paid on September 10, 2004. Respondent Digna Matalang Coching received the July 26, 2004 order on August 30, 2004 and filed her appeal (which adopted the appeal of the respondent spouses) on September 16, 2004. While the appeal was pending in the Office of the DENR Secretary, the RED issued a Certificate of Finality11 declaring the December 1, 2003 and July 26, 2004 orders final and executory for failure of the respondents to file a Notice of Appeal. On December 10, 2004, the Provincial Environment and Natural Resources Officer (PENRO) issued the SLUP12 to the petitioner covering Lot Nos. 4512, 4513 and 4514. On November 18, 2005, the SLUP was converted into a Special Forest Land-Use Agreement for Tourism Purposes (FLAgT). On August 6, 2006, the DENR Secretary rendered a decision (i) vacating the December 1, 2003 and July 26, 2004 orders of the RED; (ii) amending the coverage of the SLUP of the petitioner to cover Lot No. 4513 only; and (iii) giving due course to the SLUP of the respondent spouses to cover Lot Nos. 4512 and 4514. Acting on the motion for reconsideration13 filed by the petitioner, the DENR Secretary reversed his August 6, 2006 decision on October 17, 2006 and held that the December 1, 2003 and July 26, 2004 orders of the RED have attained finality because: (i) the respondent spouses filed an Appeal Memorandum, instead of a Notice of Appeal; (ii) the Appeal Memorandum was directly filed with the DENR Secretary and not with the RED; and (iii) the respondent spouses failed to pay the required appeal fees within the reglementary period. The Office of the President reversed the October 17, 2006 resolution of the DENR Secretary. The CA, through the assailed decision and resolution, affirmed the decision of the Office of the President. The petitioner filed the present petition to contest the CA's ruling. The DENR's Findings

The RED, relying mainly on the report14 prepared by the chief of Forest Management Services ruled in favor of the petitioner. The report gave credence to Tax Declaration No. 048,15 which purportedly showed that Lot Nos. 4512, 4513 and 4514 are parts of the six (6) hectare timberland occupied by the petitioner's father during his lifetime. The RED also gave weight to the statements of two former Barangay Captains of Port Barton and the document signed by the alleged occupants of the said six (6) hectare timberland supporting the petitioner's claim. The DENR Secretary reversed the orders of the RED in his decision dated August 6, 2006.16 He ruled that the petitioner cannot claim preferential right to apply for an SLUP over Lot Nos. 4512 and 4514 in view of her sweeping allegation that the said lots are part of the six (6) hectare timberland, which his father possessed in his lifetime and whose possession she tacked. The DENR Secretary asked: if indeed the petitioner tacked the possession of his father and she was the actual occupant over Lot Nos. 4512 and 4514, why was she not made the survey claimants of the said lots? The DENR Secretary found that the respondent spouses have a preferential right over Lot Nos. 4512 and 4514. Rogelio Maranon, the registered survey claimant and occupant of Lot No. 4512, waived and transferred his right over the lot in favor of the respondent spouses in a duly-notarized Affidavit of Waiver of Rights. The respondent spouses derived their right over Lot No. 4514 from Arturo Besaga, Jr. and Digna Matalang Coching, the registered survey claimants, who executed a duly-notarized Joint-Affidavit of Waiver of Rights over the said lot. The DENR Secretary held that these are the legal and vital documents (disregarded by the chief of Forest Management Services) which support the preferential rights of the respondent spouses over Lot Nos. 4512 and 4514. The DENR Secretary, however, reversed his August 6, 2006 decision in a resolution17 dated October 17, 2006. He ruled that the respondent spouses failed to perfect the appeal because they filed a Memorandum of Appeal instead of a Notice of Appeal contrary to Section 1(a) of DENR Department Administrative Order (DAO) No. 87, series of 1990.18 The Office of the President's Ruling19 The Office of the President reversed the October 17, 2006 resolution of the DENR Secretary. It held that the orders of the RED did not become final because there is no law, rule or regulation prohibiting an appellant to file an appeal memorandum, instead of a notice of appeal, to the office concerned. It further held that the appeal

memorandum itself serves as a sufficient notice of the party's intention to elevate the case to a higher authority. The Office of the President observed that in a plethora of cases, notices of appeal are filed directly with the DENR, rather than with the RED, which practice has not since been prohibited nor made as a ground for the outright dismissal of the appeal. Finally, it found that the respondent spouses paid the appeal fees. All of these negate the finding that the respondent spouses did not perfect their appeal to the DENR Secretary. As to the merits of the case, the Office of the President found that Tax Declaration No. 048 did not cover Lot Nos. 4512, 4513 and 4514 but Lot No. 4741, which is entirely different and distinct from the contested lots. It gave credence to the Affidavit of Waiver of Rights executed by Rogelio Maranon and the Joint Affidavit of Waiver of Rights jointly executed by Arturo Besaga, Jr. and Digna Matalang Coching in favor of the respondent spouses. No countervailing proof was presented by the petitioner to impugn these affidavits. The CA's Ruling The CA sustained the Office of the President. Citing decisions of this Court, it held that rules of procedure are construed liberally in proceedings before administrative bodies. They are not to be applied in a very rigid and technical manner, as they are used only to hold secure and not to override substantial justice. The CA ruled that the orders of the RED have not attained finality. The Petition The petitioner seeks reversal of the CA decision and resolution for being contrary to law and jurisprudence. She submits that the respondent spouses failed to perfect an appeal in the administrative proceedings. She argues that the perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but also jurisdictional and that failure to conform to the rules will render the judgment sought to be reviewed final and unappealable. She adds that the liberal interpretation of the rules has no clear application in the present case because the respondents failed to adequately explain their non-compliance therewith. As is proper under Rule 45 of the Rules of Court, the petitioner does not raise any factual questions. Respondent's Comment20 The respondent spouses ask for the petition's dismissal for lack of merit. They submit that the CA acted in accordance with law and jurisprudence in upholding the ruling of the Office of the President.

They argue that to dismiss the case on the mere ground of technicalities would mean to dispense with the determination of the party having preferential right on the disputed lots and could cause the perpetuation of a wrong. They maintain that the cases cited by the petitioner, where procedural rules were strictly enforced by this Court, involved violation of the rules either before the trial court, the CA or before this Court, and not before an administrative agency like the DENR. In sum, the respondent spouses contend that the orders of the RED have not attained finality, thus, said orders are still subject to reversal, amendment or modification on appeal. Issues The petitioner raises the following issues:21 I.

WHETHER THE APPEAL INTERPOSED BY THE RESPONDENTS WAS CORRECTLY FILED TO THE DENR SECRETARY AND NOT TO THE REGIONAL OFFICE AS PROVIDED UNDER SECTION 1 (A) OF DAO NO. 87, SERIES OF 1990;

II.

WHETHER OR NOT RESPONDENTS' APPEAL TO THE OFFICE OF THE DENR SECRETARY WAS PERFECTED DESPITE OF THEIR FAILURE TO COMPLY WITH SECTION 1 (A) OF DAO NO. 87, SERIES OF 1990;

III.

WHETHER THE LIBERAL INTERPRETATION OF THE RULES ON APPEAL INVOLVING ADMINISTRATIVE PROCEEDINGS WAS CORRECTLY APPLIED BY THE HONORABLE COURT OF APPEALS IN THE CASE OF RESPONDENTS;

IV.

WHETHER� THE� ASSAILED� ORDERS,� ISSUED� ON DECEMBER 1, 2003 AND JULY 26, 2004, OF THE REGIONAL EXECUTIVE DIRECTOR OF DENR REGION IV-MIMAROPA IN DENR CASE NO. M-003-03-F, WERE ALREADY FINAL AND EXECUTORY;

V.

WHETHER THE PERFECTION OF APPEAL IN ACCORDANCE WITH SECTION 1 (A) OF DAO NO. 87, SERIES OF 1990 IS NOT ONLY MANDATORY BUT JURISDICTIONAL; AND

VI.

WHETHER THE ORDERS DATED DECEMBER 1, 2003 AND JULY 23, 2014 CAN STILL BE MODIFIED AND SET ASIDE BY THE HONORABLE COURT OF APPEALS.

The resolution of these issues hinges on whether the orders of the RED dated December 1, 2003 and July 26, 2004 have attained finality because the

respondents filed a Memorandum of Appeal directly to the DENR Secretary instead of a Notice of Appeal to the RED. The Court's Ruling We deny the petition. The petitioner insists that the filing of a Memorandum of Appeal instead of a Notice of Appeal was fatal to the respondent spouses' case. We are not convinced of the merits of this position. The crux of the dispute is Section 1(a) of DAO No. 87. It provides: Section 1. Perfection of Appeals. - a) Unless otherwise provided by law or executive order, appeals from the decisions/orders of the DENR Regional Offices shall be perfected within fifteen (15) days after the receipt of a copy of the decision/order complained of by the party adversely affected, by tiling with the Regional Office which adjudicated the case a notice of appeal, serving copies thereof upon the prevailing party and Office of the Secretary, and paying the required fees. [Emphasis ours.] According to the petitioner, this provision is mandatory and jurisdictional. She argues that respondents filed a defective appeal because: (i) they filed a Memorandum of Appeal instead of a Notice of Appeal; (ii) directly to the DENR and not to the Regional Office, which adjudicated the case; and (iii) no docket fee was paid.22 The petitioner cites jurisprudence to bolster her argument that the perfection of an appeal in the manner and within the period prescribed by law is not oniy mandatory but also jurisdictional. We accordingly review the cited cases to determine the correctness of the petitioner's submitted position. In Asian Spirit Airlines v. Bautista,23 the CA dismissed the appeal because the appellant failed to file his brief within the time provided by the Rules of Court. The appellant not only neglected to file its brief within the stipulated time but also failed to seek an extension of time based on a cogent ground before the expiration of the time sought to be extended. In sustaining the CA, we held that liberality in the application of rules of procedure may not be invoked if it will result in the wanton disregard of the rules or cause needless delay in the administration of justice. In Land Bank of the Philippines v. Natividad,24 we affirmed the trial court when it considered a motion for reconsideration pro forma for not containing a notice of

hearing. We held that a motion that does not contain the requisite notice of hearing is nothing but a mere scrap of paper. The clerk of court does not even have the duty to accept it, much less to bring it to the attention of the presiding judge. In Videogram Regulatory Board v. CA,25 the Regional Trial Court granted the petitioner a non-extendible 15-day period to file a Petition for Review from the decision of the Metropolitan Trial Court. The petitioner failed to file the petition despite the extension. We held that the requirements for perfecting an appeal within the reglementary period specified in the law must be strictly followed as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business. In MC Engineering, Inc. v. NLRC,26 we affirm the CA when it denied due course to the petitioner's appeal because of its failure to explain why another mode of service other than personal service was resorted to. We held that an affidavit of service is required merely as proof that service has been made to the other parties in a case. It is a requirement totally different from the requirement that an explanation be made if personal service of pleadings was not resorted to. Finally, in Artistica Ceramica v. Ciudad Del Carmen Homeowner's Association, Inc.,27 the issue was whether the petitioner properly filed a petition for certiorari under Rule 65 instead of an appeal by certiorari under Rule 45 of the Rules of Court. We held that as a rule, the remedy from a judgment or final order of the CA is appeal by certiorari under Rule 45. The failure to file the appeal within the 15-day reglementary period under Rule 45 is not an excuse to use Rule 65. Rule 65 is not a substitute for a lost appeal, In sum, all these cases strictly applied the rule that the right to appeal is a mere statutory right and the party who avails of such right must comply with the law. Otherwise, the right to appeal is lost. To reiterate, these involved violations of the Rules of Court while the cases were pending in the trial court, the CA or before this Court. They do not involved violation of administrative rules of procedure. They are not strictly applicable in the present case. The Nature of Administrative Rules of Procedure It is true that the right to appeal, being merely a statutory privilege, should be exercised in the manner prescribed by law. This has been consistently held in relation to non-observance by a party-litigant of the Rules of Court and failure to offer a valid and acceptable excuse for non-compliance. Yet, it is equally true that in proceedings before administrative bodies the general

rule has always been liberality. Strict compliance with the rules of procedure in administrative cases is not required by law.28� Administrative rules of procedure should be construed liberally in order to promote their object to assist the parties in obtaining a just, speedy and inexpensive determination of their respective claims and defenses.29 In Birkenstock Orthopaedie GmbH and Co. KG v. Philippine Shoe Expo Marketing Corp.,30 we held: It is well-settled that the rules of procedure are mere tools aimed at facilitating the attainment of justice, rather than its frustration. A strict and rigid application of the rules must always be eschewed when it would subvert the primary objective of the rules, that is, to enhance fair trials and expedite justice. Technicalities should never be used to defeat the substantive rights of the other party. Every party-litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities, x x x This is especially true with quasi-judicial and administrative bodies, such as the IPO, which are not bound by technical rules of procedure. [Emphasis supplied.] The liberality of procedure in administrative actions, however, is subject to limitations imposed by the requirements of due process.31 Administrative due process means reasonable opportunity to be heard. As held in Vivo v. Pagcor.32 The observance of fairness in the conduct of any investigation is at the very heart of procedural due process. The essence of due process is to be heard, and, as applied to administrative proceedings, this means a fair and reasonable opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of. Administrative due process cannot be fully equated with due process in its strict judicial sense, for in the former a formal or trial-type hearing is not always necessary, and technical rules of procedure are not strictly applied. [Emphasis supplied.] Where due process is present, the administrative decision is generally sustained.33 Thus, while this Court allows liberal construction of administrative rules of procedure to enhance fair trial and expedite justice, we are keenly aware that liberal construction has no application when due process is violated. The crucial point of inquiry in cases involving violation of administrative rules of procedure is whether such violation disregards the basic tenets of administrative due process. If the gravity of the violation of the rules is such that due process is breached, the rules of procedure should be strictly applied. Otherwise, the rules are liberally

construed. Liberal Construction as Applied in the Present Case It is undisputed that the respondent spouses, instead of filing a Notice of Appeal to the RED, filed a Memorandum of Appeal to the DENR Secretary within the fifteen (15)-day reglementary period. They paid the appeal fee, although beyond the fifteen (15)-day period. These violate Section 1 (a) of DAO No. 87 which requires the filing of a Notice of Appeal and the payment of the appeal fee within the reglementary period. Do these errors breach due process so as to call for the strict application of administrative rules of procedure? Is there basis for the liberal construction of the rules? We uphold liberality. First, there is no violation of due process. In fact, to sustain the position of the petitioner and strictly apply Section l(a) of DAO No. 87 may violate the respondent spouses right to due process as this would result to a denial of their right to appeal. We stress that the respondent spouses appealed within the reglementary period. The appeal was timely filed, albeit not directly to the office which issued the order sought to be reviewed. They also paid the full appeal fees although beyond the 15-day period. We hold that these procedural lapses were neither prejudicial nor unfair to the petitioner. The petitioner's right to due process was not breached. Notably, both the petitioner and the RED were furnished copies of the Memorandum of Appeal, a fact that the petitioner did not deny.34 We agree with the observation of the Office of the President that the Memorandum of Appeal essentially served the purpose of the Notice of Appeal. The filing of the Memorandum of Appeal had the same practical effect had a Notice of Appeal been filed: inform the RED that his order is sought to be appealed to the DENR Secretary. Significantly, the respondent spouses notified the petitioner of the filing of the Memorandum of Appeal. The petitioner subsequently filed her opposition thereto. When the DENR Secretary initially ruled in favor of the respondent spouses, the petitioner tiled a motion for reconsideration of the said decision. Clearly, the petitioner participated in every stage of the administrative

proceeding. Her right to be heard was not compromised despite the wrong mode of appeal. As to the late payment of the appeal fee, suffice it to say that this Court has disregarded late payment of appeal fees at the administrative level in order to render substantial justice.35 Second, the liberal construction of DAO No. 87 would serve its purpose, i.e., grant a party the right to appeal decisions of the Regional Offices to the DENR Secretary in order for the latter to review the findings of the former. To disallow appeal in this case would not only work injustice to the respondent spouses, it would also diminish the DENR Secretary's power to review the decision of the RED. It would deny the DENR Secretary the opportunity to correct, at the earliest opportunity, "errors of judgment" of his subordinates. This is obviously not the intent of DAO No. 87. Finally, the petitioner failed to convince us why liberality should not be applied. The petitioner does not claim that her right to due process was violated as a result of the wrong mode of appeal. The petitioner merely asks this Court to strictly construe DAO No. 87 and affirm the orders of the RED, which according to her, have attained finality. Between strict construction of administrative rules of procedure for their own sake and their liberal application in order to enhance fair trials and expedite justice, we uphold the latter. After all, administrative rules of procedure do not operate in a vacuum. The rules facilitate just, speedy and inexpensive resolution of disputes before administrative bodies. The better policy is to apply these rules in a manner that would give effect rather than defeat their intended purpose. WHEREFORE, premises considered, we DENY the petition and AFFIRM the October 30, 2009 decision and October 1, 2010 resolution of the Court of Appeals in CA-G.R. SP No. 100616, affirming the August 13, 2007 decision of the Office of the President in O.P. Case No. 06-K-398. SO ORDERED. Carpio, (Chairperson), Del Castillo, Mendoza, and Leonen, JJ., concur. Endnotes: 1

2

Rollo, pp. 3-27. The petition is hied under Mule 45 of the Rules of Court.

Id. at 28-40. The assayed decision and resolution are penned by Associate Justice Stephen C. Cruz, and concurred in by Associate Justice Jose C. Reyes, Jr. and Associate Justice Estela M. Perlas-Bernabe (now a Member of this

Court). 3

Id. at 42-43.

4

Id. at 61-65. O.P. Case No. 06-K-398 dated August 13, 2007.

5

Id. at 157-162. The Resolution is dated October 17, 2006.

6

Id. at 104-106.

7

Id, at 107-108.

8

MIMAROPA is Region IV-B composed of the provinces of Occidental Mindoro, Oriental Mindoro, Marinduque, Romblon and Palawan (Executive Order No. 103 dated May 17, 2002). 9

Supra note 2, at 29-31.

10

Son of Arturo Besaga, Sr.

11Rollo,

p. 114

12

Id. at 102.

13

Id. at 133-140.

14

Id. at 91-94.

15

Id. at 71.

16

Id. at 125-132.

17Supra

note 5.

18Rollo,

pp. 163-164. "Regulations Governing Appeals to the Office of the Secretary from the Decisions/Orders of the Regional Offices" (DAO No. 87, series of 1990). 19Supra 20Rollo,

note 4.

pp. 224-241. Comment is dated February 24, 2011.� Respondent Digna Matalang Coching filed her Manifestation on April 7, 2011 adopting, in toto; the respondent spouses' Comment.

21Supra

note 1, at 17-18.

22Supra

note 1, at 18.

23

491 Phil. 476 (2005).

24

497 Phil. 738 (2005).

25

322 Phil. 820 (1996).

26

412 Phil 614(2001).

27

635 Phil. 21 (2010).

28Barcelona

v. Lim, G.R. No. 189171, June 03, 2014.

29

Id.

30

G.R. No. 194307, November 20, 2013, 710 SCRA 474, 482.

31Spouses 32

Aya-ay v. Arpaphil Shipping Corp., 576 Phil. 628 (2006).

G.R. No 187854, November 12, 2013, 709 SCRA 276, 281.

33Mangubat 34

35

v. De Castro, 246 Phil. 620 (1998)

Supra note 2, at 30.

See Adalim v. Taninas, et al., G.R. No., 198682, April 10, 2013, 695 SCRA 648.

Pison Arceo Agricultural and Development Corp v NLRC THIRD DIVISION

G.R. No. 117890 September 18, 1997 PISON-ARCEO AGRICULTURAL and DEVELOPMENT CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and NATIONAL FEDERATION OF SUGAR WORKERS-FOOD and GENERAL TRADE (NFSWFGT)/JESUS PASCO, MARTIN BONARES, EVANGELINE PASCO, TERESITA NAVA, FELIXBERTO NAVA, JOHNNY GARRIDO, EDUARDO NUÑEZ and DELMA NUÑEZ, respondents.

PANGANIBAN, J.: In the proceedings before the labor arbiter, only the unregistered trade name of the employer-corporation and its administrator/manager were impleaded and subsequently held liable for illegal dismissal, backwages and separation pay. On appeal, however, the National Labor Relations Commission motu proprio included the corporate name of the employee as jointly and severally liable for the workers' claims. Because of such inclusion, the corporation now raises of due process and jurisdiction before this Court. The Case Assailed in this petition for certiorari under Rule 65 of the Rules of Court is the Decision1 of Public Respondent National Labor Relations Commission2 in NLRC Case No. V-0334-923 promulgated on September 27, 1993 and its Resolution4 promulgated on September 12, 1994 denying reconsideration. Affirming the decision5 dated September 2, 1992 of Executive Labor Arbiter Oscar S. Uy, the impugned NLRC Decision disposed thus:6 WHEREFORE, judgment is hereby rendered affirming the decision of Executive Labor Arbiter Oscar S. Uy, dated September 2, 1992, subject to the amendments and modification stated above and ordering the respondentappellant, Jose Edmundo Pison and the respondent PisonArceo Agricultural and Development Corporation to pay jointly and severally the claims for backwages and

separation pay of the complainant-appellees in the aboveentitled case, except the claims of Danny Felix and Helen Felix, in the amount specified below: Name Backwages Separation Pay Total 1. Jesus Pasco P14,729.00 P12,818.06 P27,547.06 2. Evangeline 14,729.00 12,874.81 27,603.81 Pasco 3. Martin Bonares 14,729.00 9,035.06 23,764.06 4. Mariolita Bonares 14,729.00 8,455.00 23,184.00 5. Felixberto Nava 14,729.00 13,505.31 28,234.31 6. Teresita Nava 14,729.00 3,417.31 18,146.31 7. Johnny Garrido 8,489.00 4,463.94 12,952.94 8. Eduardo Nuñez 8,489.00 11,399.44 19,888.44 9. Delma Nuñez 8,489.00 9,507.94 17,996.94 In addition, the respondent-appellant and the respondent corporation are ordered to pay attorney's fees equivalent to ten (10%) percent of the total award. The dispositive portion of the assailed Resolution, on the other hand, reads: 7 WHEREFORE, the decision in question is hereby modified in the sense that the monetary award of Mariolita Bonares be [sic] deleted. Except for such modification, the rest of the decision stands. Arguing that the National Labor Relations Commission did not have jurisdiction over it because it was not a party before the labor arbiter, petitioner elevated this matter before this Court via a petition for certiorari under Rule 65. Acting on petitioner's prayer 8, this Court (First Division) issued on January 18, 1995 a temporary restraining order enjoining the respondents from executing the assailed Decision and Resolution. The Facts

As gathered from the complaint9 and other submissions of the parties filed with Executive Labor Arbiter Oscar S. Uy, the facts of the case are as follows: Together with Complainants Danny and Helen Felix, private respondents — Jesus Pasco, Evangeline Pasco, Martin Bonares, Teresita Nava, Felixberto Nava, Johnny Garrido, Eduardo Nuñez and Delma Nuñez, all represented by Private Respondent National Federation of Sugar Workers-Food and General Trade (NSFW-FGT) — filed on June 13, 1988 a complaint for illegal dismissal, reinstatement, payment of backwages and attorney's fees against "Hacienda Lanutan/Jose Edmundo Pison." Complainants alleged that they were previously employed as regular sugar farm workers of Hacienda Lanutan in Talisay, Negros Occidental. On the other hand, Jose Edmundo Pison claimed that he was merely the administrator of Hacienda Lanutan which was owned by Pison-Arceo Agricultural and Development Corporation. As earlier stated, the executive labor arbiter rendered on September 2, 1992 a decision in favor of the workers-complainants, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered ordering respondent Jose Edmundo Pison/Hda. Lanutan, Talisay, Negros Occidental, to PAY the following complainants their backwages (one year) plus separation pay in the following amounts, to wit: BACKWAGES SEPARATION PAY TOTAL 1. J. Pasco P14,729.00 P12,818.06 P27,547.06 2. E. Pasco 14,729.00 12,784.81 27,603.81 3. Bonares 14,729.00 8,404.56 23,133.56 4. F. Nava 14,729.00 13,505.31 28,234.31 5. T. Nava 14,729.00 3,427.31 18,146.31 6. J. Garrido 8,489.00 4,463.94 12,952.94 7. E. Nuñez 8,489.00 11,399.44 19,888.44 8. D. Nuñez 8,489.00 9,507.94 17,996.94

plus ten percent (10%) of the total award as attorney's fees in the amount of P17,550.34 or in the total amount of ONE HUNDRED NINETY THREE THOUSAND FIFTY THREE AND 71/100 (P193,053.71), all these amounts to be deposited with this Office within ten (10) days from receipt of this decision. The claim of complainants Danny and Helen Felix are hereby DENIED for lack of merit. In affirming the decision of the executive labor arbiter, public respondent ordered "respondent-appellant, Jose Edmundo Pison and the respondent Pison-Arceo Agricultural and Development Corporation to pay jointly and severally the claims for backwages and separation pay" of private respondents. The motion for reconsideration dated October 14, 1993 was apparently filed by Jose Edmundo Pison for and on his own behalf only. However, Pison did not elevate his case before this Court. The sole petitioner now before us is Pison-Arceo Agricultural and Development Corporation, the owner of Hacienda Lanutan. The Issue Petitioner submits only one issue for our resolution: 10 Public Respondent NLRC acted without or in excess of jurisdiction or with grave abuse of discretion when it included motu proprio petitioner corporation as a party respondent and ordered said corporation liable to pay jointly and severally, with Jose Edmundo Pison the claims of private respondents. In essence, petitioner alleges deprivation of due process. The Court's Ruling The petition lacks merit. Petitioner contends that it was never served any summons; hence, public respondent did not acquire jurisdiction over it. It argues that "from the time the complaint was filed before the Regional Arbitration Branch No. VI up to the time the said case was appealed by Jose Edmundo Pison to the NLRC, Cebu, petitioner Corporation was never impleaded as one of the parties . . . ." It was only in the public respondent's assailed Decision of September 27, 1993 "that petitioner Corporation was wrongly included as party respondent without its knowledge." Copies of the assailed Decision and Resolution were not sent to petitioner but only to Jose Edmundo Pison, on the theory that the two were one and the same. Petitioner avers that Jose Edmundo Pison, "is only a minority stockholder" of Hacienda Lanutan, which in turn is one of the of business of petitioner. 11 Petitioner further argues that it did not "voluntarily appear before

said tribunal" and that it was not "given (any) opportunity to be heard", 12 thus, the assailed Decision and Resolution in this case are void "for having been issued without jurisdiction." 13 In its memorandum, petitioner adds that Eden vs. Ministry of Labor and Employment, 14 cited by public respondent, does not apply to this case. In Eden, "petitioners were duly served with notices of hearings, while in the instant case, the petitioner was never summoned nor was served with notice of hearings as a respondent in the case." 15 At the outset, we must stress that in quasi-judicial proceedings, procedural rules governing service of summons are not strictly construed. Substantial compliance thereof is sufficient. 16 Also, in labor cases, punctilious adherence to stringent technical rules may be relaxed in the interest of the working man; it should not defeat the complete and equitable resolution of the rights and obligations of the parties. This Court is ever mindful of the underlying spirit and intention of the Labor Code to ascertain the facts of each case speedily and objectively without regard to technical rules of law and procedure, all in the interest of due process. 17 Furthermore, the Labor Code itself, as amended by RA 6715, 18 provides for the specific power of the Commission to correct, amend, or waive any error, defect or irregularity whether in the substance or in the form of the proceedings before it 19 under Article 218 (c) as follows: (c) To conduct investigation for the determination of a question, matter or controversy within its jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who has been summoned or served with notice to appear, conduct its proceedings or any part thereof in public or in private, adjourn its hearings to any time and place, refer technical matters or accounts to an expert and to accept his report as evidence after hearing of the parties upon due notice, direct parties to be joined in or excluded from the proceedings, correct, amend, or waive any error, defect or irregularity whether in substance or in form, give all such directions as it may deem necessary or expedient in the determination of the dispute before it, and dismiss any matter or refrain from further hearing or from determining the dispute or part thereof, where it is trivial or where further proceedings by the Commission are not necessary or desirable; . . . (Emphasis supplied.) In this case, there are legal and factual reasons to hold petitioner jointly and severally liable with Jose Edmundo Pison. Jurisdiction Acquired Over Petitioner

Consistent with the foregoing principles applicable to labor cases, we find that jurisdiction was acquired over the petitioner. There is no dispute that Hacienda Lanutan, which was owned SOLELY by petitioner, was impleaded and was heard. If at all, the non-inclusion of the corporate name of petitioner in the case before the executive labor arbiter was a mere procedural error which did not at all affect the jurisdiction of the labor tribunals. 20 Petitioner was adequately represented in the proceedings conducted at the regional arbitration branch by no less than Hacienda Lanutan's administrator, Jose Edmundo Pison, who verified and signed his/Hacienda Lanutan's position paper and other pleadings submitted before the labor arbiter. It can thus be said that petitioner, acting through its corporate officer Jose Edmundo Pison, traversed private respondents' complaint and controverted their claims. Further rebutted by petitioner are the following findings of public respondent: 21 It should further be noted that two responsible employees of the said corporation, namely, Teresita Dangcasil, the secretary of the administrator/manager, and Fernando Gallego, the hacienda overseer, had submitted their affidavits, both dated July 20, 1988, as part of the evidence for the respondent, and that, as shown by the records, the lawyer who appeared as the legal counsel of the respondent-appellant, specifically, Atty. Jose Ma. Torres, of the Torres and Valencia Law Office in Bacolod City, (Rollo, p. 17) was also the legal counsel of the said corporation. (Rollo, p. 23) Also, it is undisputed that summons and all notices of hearing were duly served upon Jose Edmundo Pison. Since Pison is the administrator and representative of petitioner in its property (Hacienda Lanutan) and recognized as such by the workers therein, we deem the service of summons upon him as sufficient and substantial compliance with the requirements for service of summons and other notices in respect of petitioner corporation. Insofar as the complainants are concerned, Jose Edmundo Pison was their employer and/or their employer's representative. In view of the peculiar circumstances of this case, we rule that Jose Pison's knowledge of the labor case and effort to resist can be deemed knowledge and action of the corporation. Indeed, to apply the normal precepts on corporate fiction and the technical rules on service of summons would be to overturn the bias of the Constitution and the laws in favor of labor. Hence, it is fair to state that petitioner, through its administrator and manager, Jose Edmundo Pison, was duly notified of the labor case against it and was actually afforded an opportunity to be heard. That it refused to take advantage of such opportunity and opted to hide behind its corporate veil will not shield it from the encompassing application of labor laws. As we held in Bautista vs. Secretary of Labor and Employment: 22

Moreover, since the proceeding was not judicial but merely administrative, the rigid requirements of procedural laws were not strictly enforceable. It is settled that — While the administrative tribunals exercising quasi-judicial powers are free from the rigidity of certain procedural requirements they are bound by law and practice to observe the fundamental and essential requirements of due process in justiciable cases presented before them. However, the standard of due process that must be met in administrative tribunals allows a certain latitude as long as the element of fairness is not ignored. (fn: Adamson & Adamson, Inc. vs. Amores, 152 SCRA 237). xxx

xxx

xxx

It is of course also sound and settled rule that administrative agencies performing quasijudicial functions are unfettered by the rigid technicalities of procedure observed in the courts of law, and this is so that disputes brought before such bodies may be resolved in the most expeditious and inexpensive manner possible. (fn: Rizal Workers Union vs. FerrerCalleja, 186 SCRA 431). Given all these circumstances, we feel that the lack of summons upon the petitioners is not sufficient justification for annulling the acts of the public respondents. Contrary to petitioner's contention, the principles laid down in Eden are to relevant to this case. In that case, a religious organization, SCAFI, 23 denied responsibility for the monetary claims of several employees, as these were filed against SCAPS 24 and its officer in charge — the employees believed that SCAPS was their employer. In rejecting such defense, this Court ruled: 25 With regard to the contention that SCAPS and SCAFI are two different entities, this lacks merit. The change from SCAPS to SCAFI was a mere modification, if not rectification of the caption as to respondent in the MOLE case, when it was pointed out in the complainant's position paper that SCAPS belongs to or is integral with SCAFI as gleaned from the brochure, Annex "A" of said position paper, which is already part of the records of the case and incorporated in

the Comment by way of reference. The brochure stated that SCAPS is the implementing and service arm of SCAFI, with Bishop Gaviola as National Director of SCAPS and Board Chairman of SCAFI, both their address: 2655 F.B. Harrison, St., Pasay City. Thus, the real party in interest is SCAFI, more so because it has the juridical personality that can sue and be sued. The change in caption from SCAPS to SCAFI however does not absolve SCAPS from liability, for SCAFI includes SCAPS, SCAPS — the arm, SCAFI, — the organism to which the arm is an integral part of the rise and fall of SCAPS, and vice-versa. Thus, SCAFI has never been a stranger to the case. Jurisprudence is to the effect that: An action may be entertained, notwithstanding the failure to include an indispensable party where it appears that the naming of the party would be a formality. (Baguio vs. Rodriguez, L11078, May 27, 1959) Comparable to Eden, Hacienda Lanutan is an arm of petitioner, the organism of which it is an integral part. Ineluctably, the real party in interest in this case is petitioner, not "Hacienda Lanutan" which is merely its non-juridical arm. In dealing with private respondents, petitioner represented itself to be "Hacienda Lanutan." Hacienda Lanutan is roughly equivalent to its trade name or even nickname or alias. The names may have been different, but the IDENTITY of the petitioner is not in dispute. Thus, it may be sued under the same by which it made itself known to the workers. Liability of Jose Edmundo Pison Jose Edmundo Pison did not appeal from the Decision of public respondent. It thus follows that he is bound by the said judgment. A party who has not appealed an adverse decision cannot obtain from the appellate court any affirmative relief other than those granted, if there is any, in the decision of the lower court or administrative body. 26 WHEREFORE, premises considered, the petition is hereby DISMISSED, for its failure to show grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the National Labor Relations Commission. The assailed Decision and Resolution are AFFIRMED. The temporary restraining order issued on January 19, 1995 is hereby LIFTED. Cost against petitioner. SO ORDERED. Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.

Footnotes 1 In "National Federation of Sugar Workers-Food and General Trade (NFSW-FGT)/Jesus Pasco, et al. vs. Hda. Lanutan/Jose Edmundo Pison (And Pison-Arceo Agricultural and Development Corporation)"; rollo, pp. 43-65. 2 Fourth Division composed of Commissioner Bernabe S. Batuhan, ponente, and Commissioner Irenea S. Ceniza, concurring. The third member is not named in the assailed Decision. 3 Originally numbered as RAB Case No. 06-06-10202-88. 4 Rollo, pp. 78-79, with an additional concurrence of Commissioner Anchito V. Cañete. 5 Ibid., pp. 18-25. 6 Ibid., pp. 64-65. 7 Ibid., p. 78. 8 Ibid., p. 11. 9 Rollo, pp. 15-17. 10 Ibid., p. 7; original text in upper case. 11 Ibid., p. 8. 12 Ibid., p. 9. 13 Ibid., p. 11. 14 182 SCRA 840, February 28, 11990. 15 Rollo, pp. 200-201. 16 Eden vs. Ministry of Labor and Employment, 182 SCRA 840, 847, February 28, 1990; citing Ang Tibay vs. Court of Industrial Relations, 69 Phil. 635, February 27, 1940. 17 Cabalan Pastulan Negrito Labor Association vs. NLRC, 241 SCRA 643, 656-657, February 23, 1994; citing YBL (Your Bus Lines), et al. vs. NLRC, et al., 190 SCRA 160,

September 28, 1990; Rada vs. NLRC, et al., G.R. No. 96078, 205 SCRA 69, January 9, 1992. 18 The New Labor Relations Law. 19 City Fair Corporation vs. National Labor Relations Commission, 243 SCRA 572, 576, April 21, 1995. 20 This should be distinguished from the case of Laureano Investment & Development Corporation vs. The Honorable Court of Appeals and Bormaheco, Inc., (G.R. No. 100468, p. 13, May 6, 1997) where we ruled: Examining the records of the case, we observe that the motion adverted to indeed made use of LIDECO as an acronym for Laureano Investment and Development Corporation. But said motion distinctly specified that LIDECO was the shorter term for Laureano Investment and Development Corporation. It is obvious that no false representation or concealment can be attributed to private respondent. Neither can it be charged with conveying the impression that the facts are other than, or inconsistent with, those which it now asserts since LIDECO, as an acronym, is clearly different from "Lideco Corporation" which represented itself as a corporation duly registered and organized in accordance with law. Nor can it be logically inferred that petitioner relied or acted upon such representation or private representation of private respondent in thereafter referring to itself as "Lideco Corporation;" for petitioner is presumed to know by which name it is registered, and the legal provisions on the use of its corporate name. 21 NLRC's Decision, pp. 19-20; rollo, pp. 61-62. 22 196 SCRA 470, 475, April 30, 1991, per Cruz, J. 23 Share and Care Apostolate Foundation, Inc. (SCAFI). 24 Share and Care Apostolate for Poor Settlers (SCAPS).

25 Eden vs. Ministry of Labor and Employment, supra, p. 847. 26 Atlantic Gulf and Pacific Company of Manila, Inc. vs. Court of Appeals, 247 SCRA 606, 612-613, August 23, 1995, citing cases of Makati Haberdashery, Inc., et al. vs. National Labor Relations Commission, et al., G.R. Nos. 83380-81, November 15, 1989, 179 SCRA 448; Dizon, Jr. vs. National Labor Relations Commission, et al., G.R. No. 69018, January 29, 1990, 181 SCRA 472; Lumibao vs. Intermediate Appellate Court, et al., G.R. No. 64677, September 13, 1990, 189 SCRA 649; SMI Fish Industries, Inc., et al. vs. National Labor Relations Commission, et al., G.R. Nos. 96952-56, September 2, 1992, 213 SCRA 444; Alba vs. Santander, et al., L-28409, April 15, 1988, 160 SCRA 8; Nessia vs. Fermin, et al., G.R. No. 102918, March 30, 1993, 220 SCRA 615.

Montemayor v Bundalian THIRD DIVISION G.R. No. 149335

July 1, 2003

EDILLO C. MONTEMAYOR, petitioner, vs. LUIS BUNDALIAN, RONALDO B. ZAMORA, Executive Secretary, Office of the President, AND GREGORIO R. VIGILAR, Secretary, Department of Public Works and Highways (DPWH), respondents. PUNO, J.: In this petition for review on certiorari, petitioner EDILLO C. MONTEMAYOR assails the Decision of the Court of Appeals, dated April 18, 2001, affirming the decision of the Office of the President in Administrative Order No. 12 ordering petitioner’s dismissal as Regional Director of the Department of Public Works and Highways (DPWH) for unexplained wealth. Petitioner’s dismissal originated from an unverified letter-complaint, dated July 15, 1995, addressed by private respondent LUIS BUNDALIAN to the Philippine Consulate General in San Francisco, California, U.S.A. Private respondent accused petitioner, then OIC-Regional Director, Region III, of the DPWH, of accumulating unexplained wealth, in violation of Section 8 of Republic Act No. 3019. Private respondent charged that in 1993, petitioner and his wife purchased a house and lot at 907 North Bel Aire Drive, Burbank, Los Angeles, California, making a down payment of US$100,000.00. He further alleged that petitioner’s in-laws who were living in California had a poor credit standing due to a number of debts and they could not have purchased such an expensive property for petitioner and his wife. Private respondent accused petitioner of amassing wealth from lahar funds and other public works projects. Private respondent attached to his letter-complaint the following documents: a) a copy of a Grant Deed, dated May 27, 1993, where spouses David and Judith Tedesco granted the subject property to petitioner and his wife; b) a copy of the Special Power of Attorney (SPA) executed by petitioner and his wife in California appointing petitioner’s sister-inlaw Estela D. Fajardo as their attorney-in-fact, to negotiate and execute all documents and requirements to complete the purchase of the subject property; and,

c) an excerpt from the newspaper column of Lito A. Catapusan in the Manila Bulletin, entitled "Beatwatch," where it was reported that a low-ranking, multimillionaire DPWH employee, traveled to Europe and the U.S. with his family, purchased an expensive house in California, appointed a woman through an SPA to manage the subject property and had hidden and unexplained wealth in the Philippines and in the U.S. Accordingly, the letter-complaint and its attached documents were indorsed by the Philippine Consulate General of San Francisco, California, to the Philippine Commission Against Graft and Corruption (PCAGC)1 for investigation. Petitioner, represented by counsel, submitted his counter-affidavit before the PCAGC alleging that the real owner of the subject property was his sister-in-law Estela Fajardo. Petitioner explained that in view of the unstable condition of government service in 1991, his wife inquired from her family in the U.S. about their possible emigration to the States. They were advised by an immigration lawyer that it would be an advantage if they had real property in the U.S. Fajardo intimated to them that she was interested in buying a house and lot in Burbank, California, but could not do so at that time as there was a provision in her mortgage contract prohibiting her to purchase another property pending full payment of a real estate she earlier acquired in Palmdale, Los Angeles. Fajardo offered to buy the Burbank property and put the title in the names of petitioner and his wife to support their emigration plans and to enable her at the same time to circumvent the prohibition in her mortgage contract. Petitioner likewise pointed out that the charge against him was the subject of similar cases filed before the Ombudsman.2 He attached to his counter-affidavit the Consolidated Investigation Report3 of the Ombudsman dismissing similar charges for insufficiency of evidence. From May 29, 1996 until March 13, 1997, the PCAGC conducted its own investigation of the complaint. While petitioner participated in the proceedings and submitted various pleadings and documents through his counsel, private respondent-complainant could not be located as his Philippine address could not be ascertained. In the course of the investigation, the PCAGC repeatedly required petitioner to submit his Statement of Assets, Liabilities and Net Worth (SALN), Income Tax Returns (ITRs) and Personal Data Sheet. Petitioner ignored these directives and submitted only his Service Record. He likewise adduced in evidence the checks allegedly issued by his sister-in-law to pay for the house and lot in Burbank, California. When the PCAGC requested the Deputy Ombudsman for Luzon to furnish it with copies of petitioner’s SALN from 19921994, it was informed that petitioner failed to file his SALN for those years. After the investigation, the PCAGC, in its Report to the Office of the President, made the following findings: Petitioner purchased a house and lot in Burbank, California, for US$195,000.00 (or P3.9M at the exchange rate prevailing in 1993).

The sale was evidenced by a Grant Deed. The PCAGC concluded that the petitioner could not have been able to afford to buy the property on his annual income of P168,648.00 in 1993 as appearing on his Service Record. It likewise found petitioner’s explanation as unusual, largely unsubstantiated, unbelievable and self-serving. The PCAGC noted that instead of adducing evidence, petitioner’s counsel exerted more effort in filing pleadings and motion to dismiss on the ground of forum shopping. It also took against petitioner his refusal to submit his SALN and ITR despite the undertaking made by his counsel which raised the presumption that evidence willfully suppressed would be adverse if produced. The PCAGC concluded that as petitioner’s acquisition of the subject property was manifestly out of proportion to his salary, it has been unlawfully acquired. Thus, it recommended petitioner’s dismissal from service pursuant to Section 8 of R.A. No. 3019. On August 24, 1998, the Office of the President, concurring with the findings and adopting the recommendation of the PCAGC, issued Administrative Order No. 12,4 ordering petitioner’s dismissal from service with forfeiture of all government benefits. Petitioner’s Motion for Reconsideration was denied. His appeal to the Court of Appeals was likewise dismissed.5 Hence, this petition for review where petitioner raises the following issues for resolution: first, whether he was denied due process in the investigation before the PCAGC; second, whether his guilt was proved by substantial evidence; and, third, whether the earlier dismissal of similar cases before the Ombudsman rendered the administrative case before the PCAGC moot and academic. On the issue of due process, petitioner submits that the PCAGC committed infractions of the cardinal rules of administrative due process when it relied on Bundalian’s unverified letter-complaint. He gripes that his counter-affidavit should have been given more weight as the unverified complaint constitutes hearsay evidence. Moreover, petitioner insists that in ruling against him, the PCAGC failed to respect his right to confront and cross-examine the complainant as the latter never appeared in any of the hearings before the PCAGC nor did he send a representative therein. We find no merit in his contentions. The essence of due process in administrative proceedings is the opportunity to explain one’s side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.6 In the case at bar, the PCAGC exerted efforts to notify the complainant of the proceedings but his Philippine residence could not be located.7 Be that as it may, petitioner cannot argue that he was deprived of due process because he failed to confront and cross-examine the complainant. Petitioner voluntarily submitted to the jurisdiction of the PCAGC by participating

in the proceedings before it. He was duly represented by counsel. He filed his counter-affidavit, submitted documentary evidence, attended the hearings, moved for a reconsideration of Administrative Order No. 12 issued by the President and eventually filed his appeal before the Court of Appeals. His active participation in every step of the investigation effectively removed any badge of procedural deficiency, if there was any, and satisfied the due process requirement. He cannot now be allowed to challenge the procedure adopted by the PCAGC in the investigation.8 Neither can we sustain petitioner’s contention that the charge against him was unsupported by substantial evidence as it was contained in an unverified complaint. The lack of verification of the administrative complaint and the nonappearance of the complainant at the investigation did not divest the PCAGC of its authority to investigate the charge of unexplained wealth. Under Section 3 of Executive Order No. 151 creating the PCAGC, complaints involving graft and corruption may be filed before it in any form or manner against presidential appointees in the executive department. Indeed, it is not totally uncommon that a government agency is given a wide latitude in the scope and exercise of its investigative powers. The Ombudsman, under the Constitution, is directed to act on any complaint likewise filed in any form and manner concerning official acts or omissions. The Court Administrator of this Court investigates and takes cognizance of, not only unverified, but even anonymous complaints filed against court employees or officials for violation of the Code of Ethical Conduct. This policy has been adopted in line with the serious effort of the government to minimize, if not eradicate, graft and corruption in the service. It is well to remember that in administrative proceedings, technical rules of procedure and evidence are not strictly applied. Administrative due process cannot be fully equated with due process in its strict judicial sense for it is enough that the party is given the chance to be heard before the case against him is decided.9 This was afforded to the petitioner in the case at bar. On the second issue, there is a need to lay down the basic principles in administrative investigations. First, the burden is on the complainant to prove by substantial evidence the allegations in his complaint.10 Substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise. 11 Second, in reviewing administrative decisions of the executive branch of the government, the findings of facts made therein are to be respected so long as they are supported by substantial evidence. Hence, it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the sufficiency of evidence. Third, administrative decisions in matters within the executive jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error of law. These principles negate the power of the

reviewing court to re-examine the sufficiency of the evidence in an administrative case as if originally instituted therein, and do not authorize the court to receive additional evidence that was not submitted to the administrative agency concerned.12 In the case at bar, petitioner admitted that the subject property was in his name. However, he insisted that it was his sister-in-law Estela Fajardo who paid for the property in installments. He submitted as proof thereof the checks issued by Fajardo as payment for the amortizations of the property. His evidence, however, likewise fail to convince us. First, the record is bereft of evidence to prove the alleged internal arrangement petitioner entered into with Fajardo. He did not submit her affidavit to the investigating body nor did she testify before it regarding her ownership of the Burbank property. Second, the checks allegedly issued by Fajardo to pay for the monthly amortizations on the property have no evidentiary weight as Fajardo’s mere issuance thereof cannot prove petitioner’s nonownership of the property. Fajardo would naturally issue the checks as she was appointed by petitioner as attorney-in-fact and the latter would naturally course through her the payments for the Burbank property. Third, petitioner’s own evidence contradict his position. We cannot reconcile petitioner’s denial of ownership of the property with the loan statement13 he adduced showing that he obtained a loan from the World Savings and Loan Association for $195,000.00 on June 23, 1993 to finance the acquisition of the property. Then, three (3) years later, on May 30, 1996, petitioner and his wife executed a Quitclaim Deed 14 donating the Burbank property to his sisters-in-law Estela and Rose Fajardo allegedly to prove his non-ownership of the property. It is obvious that the Quitclaim Deed is a mere afterthought, having been executed only after a complaint for unexplained wealth was lodged against petitioner. Why the Quitclaim Deed included Rose Fajardo when it was only Estela Fajardo who allegedly owned the property was not explained on the record. Petitioner’s evidence failed to clarify the issue as it produced, rather than settled, more questions. Petitioner admitted that the Grant Deed over the property was in his name. He never denied the existence and due execution of the Grant Deed and the Special Power of Attorney he conferred to Estela Fajardo with respect to the acquisition of the Burbank property. With these admissions, the burden of proof was shifted to petitioner to prove non-ownership of the property. He cannot now ask this Court to remand the case to the PCAGC for reception of additional evidence as, in the absence of any errors of law, it is not within the Court’s power to do so. He had every opportunity to adduce his evidence before the PCAGC. Lastly, we cannot sustain petitioner’s stance that the dismissal of similar charges against him before the Ombudsman rendered the administrative case against him before the PCAGC moot and academic. To be sure, the decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial

proceedings, not to the exercise of administrative powers.15 Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGC’s investigation of petitioner was administrative in nature, the doctrine of res judicata finds no application in the case at bar. Thus, we find that the Court of Appeals correctly sustained petitioner’s dismissal from service as the complaint and its supporting documents established that he acquired a property whose value is disproportionate to his income in the government service, unless he has other sources of income which he failed to reveal. His liability was proved by substantial evidence. IN VIEW WHEREOF, the petition is DISMISSED. No costs. SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.

Footnotes 1

Created under Executive Order No. 151, dated January 11, 1994, by then President Fidel V. Ramos and was subsequently abolished by his successor, former President Joseph Estrada through E.O. 253, dated July 18, 2000. 2

OMB-0-94-1172, OMB-0-94-1329 and OMB-0-94-1560.

3

Rollo at 162-173.

4

Id. at 54-60.

5

Decision, dated April 18, 2001; Penned by Associate Justice Fermin A. Martin, Jr. and concurred in by Associate Justices Portia Aliño-Hormachuelos and Mercedes Gozo-Dadole; Rollo at 41-50. 6

Umali vs. Guingona, Jr., 305 SCRA 533 (2000); Audion Electric Co., Inc. vs. NLRC, 308 SCRA 340 (2000). 7

See Letter of PCAGC Chairman Dario Rama to the Solicitor General, dated April 4, 2002; Rollo at 90.

8

Emin vs. Chairman Corazon Alma de Leon, G.R. No. 139794, February 27, 2002. 9

Ocampo vs. Office of the Ombudsman, 322 SCRA 17 (2000).

10

Lorena vs. Encomienda, 302 SCRA 632 (1999); Cortez vs. Agcaoili, 294 SCRA 423 (1998). 11

Enrique vs. Court of Appeals, 229 SCRA 180 (1994).

12

Ramos vs. Secretary of Agriculture and Natural Resources, 55 SCRA 330 (1974). 13

See Supplement to the Petition; Rollo at 74.

14

Id. at 75-78.

15

Dinsay vs. Cioco, 264 SCRA 703 (1996).

Evangelista v Jarencio EN BANC

G.R. No. L-29274 November 27, 1975 SEC. QUIRICO P. EVANGELISTA, in his capacity as Secretary of the Presidential Agency on Reforms and Government Operations, and the PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS (PARGO), petitioner, vs. HON. HILARION U. JARENCIO, as Presiding Judge, Court of First Instance of Manila, Branch XXIII, and FERNANDO MANALASTAS, Assistant City Public Service Officer of Manila, and ALL OTHER CITY OFFICIALS AND EMPLOYEES SIMILARLY SITUATED, respondents. Office of the Solicitor General Antonio P. Barredo, Ist. Assistant Solicitor General Esmeraldo Umali and Solicitor Bernardo P. Pardo for petitioners. Gregorio A. Ejercito and Felix C. Chavez for respondents.

MARTIN, J.: This is an original action for certiorari and prohibition with preliminary injunction, under Rule 65 of the Rules of Court, seeking to annul and set aside the order of respondent Judge, the Honorable Hilarion J. Jarencio, Presiding Judge of the Court of First Instance of Manila, dated July 1, 1968, in Civil Case No. 73305, entitled "Fernando Manalastas vs. Sec. Ramon D. Bagatsing, etc.", which reads as follows: IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ of preliminary injunction prayed for by the petitioner [private respondent] be issued restraining the respondents [petitioners], their agents, representatives, attorneys and/or other persons acting in their behalf from further issuing subpoenas in connection with the fact-finding investigations to the petitioner [private respondent] and from instituting contempt proceedings against the petitioner [private respondent] under Section 580 of the Revised Administrative Code. (Stress supplied).

Pursuant to his special powers and duties under Section 64 of the Revised Administrative Code,1 the President of the Philippines created the Presidential Agency on Reforms and Government Operations (PARGO) under Executive Order No. 4 of January 7, 1966.2 Purposedly, he charged the Agency with the following functions and responsibilities:3 b. To investigate all activities involving or affecting immoral practices, graft and corruptions, smuggling (physical or technical), lawlessness, subversion, and all other activities which are prejudicial to the government and the public interests, and to submit proper recommendations to the President of the Philippines. c. To investigate cases of graft and corruption and violations of Republic Acts Nos. 1379 and 3019, and gather necessary evidence to establish prima facie, acts of graft and acquisition of unlawfully amassed wealth ... . h. To receive and evaluate, and to conduct fact-finding investigations of sworn complaints against the acts, conduct or behavior of any public official or employee and to file and prosecute the proper charges with the appropriate agency. For a realistic performance of these functions, the President vested in the Agency all the powers of an investigating committee under Sections 71 and 580 of the Revised Administrative Code, including the power to summon witnesses by subpoena or subpoena duces tecum, administer oaths, take testimony or evidence relevant to the investigation.4 Whereupon, on June 7, 1968, petitioner Quirico Evangelista, as Undersecretary of the Agency, issued to respondent Fernando Manalastas, then Acting City Public Service Officer of Manila, a subpoena ad testificandum commanding him "to be and appear as witness at the Office of the PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS ... then and there to declare and testify in a certain investigation pending therein." Instead of obeying the subpoena, respondent Fernando Manalastas filed on June 25, 1968 with the Court of First Instance of Manila an Amended Petition for prohibition, certiorari and/or injunction with preliminary injunction and/or restraining order docketed as Civil Case No. 73305 and assailed its legality. On July 1, 1968, respondent Judge issued the aforementioned Order: IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ of preliminary injunction prayed for by the petitioner [private respondent] be issued restraining

the respondents [petitioners], their agents, representatives, attorneys and/or other persons acting in their behalf from further issuing subpoenas in connection with the fact-finding investigations to the petitioner [private respondent] and from instituting contempt proceedings against the petitioner [private respondent] under Section 530 of the Revised Administrative Code. (Stress supplied). Because of this, petitioners 5 elevated the matter direct to Us without a motion for reconsideration first filed on the fundamental submission that the Order is a patent nullity.6 As unfurled, the dominant issue in this case is whether the Agency, acting thru its officials, enjoys the authority to issue subpoenas in its conduct of fact-finding investigations. It has been essayed that the life blood of the administrative process is the flow of fact, the gathering, the organization and the analysis of evidence. 7 Investigations are useful for all administrative functions, not only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and directing, for determining general policy, for recommending, legislation, and for purposes no more specific than illuminating obscure areas to find out what if anything should be done.8 An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken 9 and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations for actions. 10 We recognize that in the case before Us, petitioner Agency draws its subpoena power from Executive Order No. 4, para. 5 which, in an effectuating mood, empowered it to "summon witness, administer oaths, and take testimony relevant to the investigation" 11 with the authority "to require the production of documents under a subpoena duces tecum or otherwise, subject in all respects to the same restrictions and qualifications as apply in judicial proceedings of a similar character." 12 Such subpoena power operates in extenso to all the functions of the Agency as laid out in the aforequoted sub-paragraphs (b),(e), and (h). It is not bordered by nor is it merely exercisable, as respondents would have it, in quasijudicial or adjudicatory function under sub-paragraph (b). The functions enumerated in all these sub-paragraphs (b), (e), and (h) interlink or intertwine with one another with the principal aim of meeting the very purpose of the creation of the Agency, which is to forestall and erode nefarious activities and anomalies in the civil service. To hold that the subpoena power of the Agency is confined to mere quasi-judicial or adjudicatory functions would therefore imperil or inactiviate the Agency in its investigatory functions under

sub-paragraphs (e) and (h). More than that, the enabling authority itself (Executive Order No. 4, para. 5) fixes no distinction when and in what function should the subpoena power be exercised. Similarly, We see no reason to depart from the established rule that forbids differentiation when the law itself makes none. Nor could We impress upon this subpoena power the alleged strictures of a subpoena issued under the Rules of Court 13 to abridge its application. The seeming proviso in Section 580 of the Revised Administrative Code that the right to summon witnesses and the authority to require the production of documents under a subpoena duces tecum or otherwise shall be "subject in all respects to the same restrictions and qualifications as apply in judicial proceedings of a similar character" cannot be validly seized upon to require, in respondents' formulation, that, as in a subpoena under the Rules, a specific case must be pending before a court for hearing or trial and that the hearing or trial must be in connection with the exercise of the court's judicial or adjudicatory functions 14 before a non-judicial subpoena can be issued by an administrative agency like petitioner Agency. It must be emphasized, however, that an administrative subpoena differs in essence from a judicial subpoena. Clearly, what the Rules speaks of is a judicial subpoena, one procurable from and issuable by a competent court, and not an administrative subpoena. To an extent, therefore, the "restrictions and qualifications" referred to in Section 580 of the Revised Administrative Code could mean the restraints against infringement of constitutional rights or when the subpoena is unreasonable or oppressive and when the relevancy of the books, documents or things does not appear. 15 Rightly, administrative agencies may enforce subpoenas issued in the course of investigations, whether or not adjudication is involved, and whether or not probable cause is shown 16 and even before the issuance of a complaint. 17 It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose. 18 The purpose of the subpoena is to discover evidence, not to prove a pending charge, but upon which to make one if the discovered evidence so justifies. 19 Its obligation cannot rest on a trial of the value of testimony sought; it is enough that the proposed investigation be for a lawfully authorized purpose, and that the proposed witness be claimed to have information that might shed some helpful light. 20 Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues on litigations it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. The administrative agency has the power of inquisition which is not dependent upon a case or controversy in order to get evidence, but can investigate merely on suspicion that the law is being violated or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too may take steps to inform itself as to whether there is probable violation of the

law. 21 In sum, it may be stated that a subpoena meets the requirements for enforcement if the inquiry is (1) within the authority of the agency; (2) the demand is not too indefinite; and (3) the information is reasonably relevant. 22 There is no doubt that the fact-finding investigations being conducted by the Agency upon sworn statements implicating certain public officials of the City Government of Manila in anomalous transactions 23 fall within the Agency's sphere of authority and that the information sought to be elicited from respondent Fernando Manalastas, of which he is claimed to be in possession, 24 is reasonably relevant to the investigations. We are mindful that the privilege against self-incrimination extends in administrative investigations, generally, in scope similar to adversary proceedings. 25 In Cabal v. Kapunan, Jr., 26 the Court ruled that since the administrative charge of unexplained wealth against the respondent therein may result in the forfeiture of the property under the Anti-Graft and Corrupt Practices Act, a proceeding criminal or penal in nature, the complainant cannot call the respondent to the witness stand without encroaching upon his constitutional privilege against self-incrimination. Later, in Pascual, Jr. v. Board of Medical Examiners, 27 the same approach was followed in the administrative proceedings against a medical practitioner that could possibly result in the loss of his privilege to practice the medical profession. Nevertheless, in the present case, We find that respondent Fernando Manalastas is not facing any administrative charge. 28 He is merely cited as a witness in connection with the fact-finding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or to file the corresponding charges. 29 Since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege would thus be unwise. 30 Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his privilege against self-incrimination. A question of constitutional dimension is raised by respondents on the inherent power of the President of the Philippines to issue subpoena. 31 More tersely stated, respondents would now challenge, in a collateral way, the validity of the basic authority, Executive Order No. 4, as amended in part by Executive Order No. 88. Unfortunately, for reasons of public policy, the constitutionality of executive orders, which are commonly said to have the force and effect of statutes 32 cannot be collaterally impeached. 33 Much more when the issue was not duly pleaded in the court below as to be acceptable for adjudication now. 34 The settled rule is that the Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. 35 Nothing then appears conclusive than that the disputed subpoena issued by petitioner Quirico Evangelista to respondent Fernando Manalastas is well within the legal competence of the Agency to issue.

WHEREFORE, the aforequoted order of respondent Judge, dated July 1, 1968, is hereby set aside and declared of no force and effect. Without pronouncement as to costs. SO ORDERED. Castro, Antonio, Esguerra, Muñoz Palma and Aquino, JJ., concur. Makalintal, C.J., concurs in the result. Barredo, Makasiar, and Concepcion, Jr., JJ, took no part.

Separate Opinions

FERNANDO, J., concurring: The opinion of the Court, ably penned by Justice Martin, is both learned and comprehensive. It reflects the current state of doctrinal pronouncements in American Administrative Law, which up to now possesses worth in this jurisdiction. It is in accordance with the views expressed in two authoritative American treatises that of Davis1 and that of Jaffe.2 The compact but highly useful text of Parker yields the same conclusion.3 A similar approach may be discerned in the casebooks of Katz,4 and McFarland and Vanderbelt.5 A concurrence is thus called for. That for me does not conclude matters though. The constitutional rights of a person who may be involved in such administrative investigation, call for respect. A recognition of the expanded reach of the administrative process in order to assure that the objectives of a regulatory statute be attained cannot obscure the protection that the Constitution affords a person who may find himself in the position of a respondent. It is worthwhile to my mind that there be a reference, even if far from detailed, to such an aspect. Hence this separate opinion. 1. The right to be protected against unreasonable search and seizure should not fall by the wayside. 6 The broad sweep of the administrative power of investigation cannot, consistently with the Constitution, go so far as to render it meaningless. It is with such a reading in mind that I view the pronouncement in United States v. Morton Salt

Co.,7 on which reliance is placed in the opinion of Justice Martin. The doctrine formulated in such American case by Justice Jackson reads thus: "Of course a governmental investigation into corporate matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power. Federal Trade Comm. v. American Tobacco Co., ... . But it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. "The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.""8 It has been given approval in an impressive number of subsequent adjudications. 9 It suffices, however, to call attention to the words of Justice Jackson in the two paragraphs preceding the excerpts cited to remove any doubt as to its lending itself to the construction that an inroad into the right of search and seizure is now permissible: "The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of unreasonable searches and seizures and the Fifth Amendment's due process of law clause. It is unnecessary here to examine the question of whether a corporation is entitled to the protection of the Fourth Amendment. ... Although the "right to be let alone — the most comprehensive of rights and the right most valued by civilized men," ... is not confined literally to searches and seizures as such, but extends as well to the orderly taking under compulsion of process, ... neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret. ... While they may and should have protection from unlawful demands made in the name of public investigation, ... corporations can claim no equality with individuals in the enjoyment of a right to privacy . ... They are endowed with public attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced measure of regulation. ... Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest." 10 Thus is rendered clear that the landmark Boyd decision which warned against the use of the subpoena power to trench upon this guarantee still speaks authoritatively. This Court has spoken to the same effect, Boyd having been cited in a number of cases. 11 I would, therefore, read the opinion of my brethren as not departing from but precisely adhering to its command. Whatever relaxation of its compelling force may be allowable in case of corporations should not apply where an individual is concerned. That should reassure respondent Manalastas that if he could demonstrate a failure to abide by the constitutional mandate on search and seizure, he is not without a remedy. 2. Nor can I fully reconcile myself to the implications lurking in this observation in the opinion of the Court: "Since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege would thus be unwise." 12 The right not to incriminate oneself 13 is equally

deserving of the utmost deference and respect. What is more, the present Constitution by the adoption of the Miranda doctrine has vitalized it even further. 14 There is, happily, the last sentence of such paragraph: "Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his privilege against selfincrimination." 15 When read in connection with the earlier reference to the fact that the respondent is called as a witness not as the party proceeded against, it cannot be said, in the light of the ruling in Planas v. Gil, 16 that it offends against this constitutional guarantee. As of now then, with the question of any modification of the Planas doctrine not being properly before us, I can yield my concurrence. Candor compels the statement, however, that for me a reexamination of such a pronouncement is desirable. A distinction between a witness and a respondent may be too tenuous if the realities of the situation be fully considered. I am bothered by the thought that the force of the Cabal 17 and the Pascual, Jr. decisions 18 may be eroded if the prospective respondent is first called as a witness and is thus compelled to testify. For the present, it may suffice if I express my misgivings. At any rate, concurrence is not ruled out in view of the aforementioned caveat in the able opinion of Justice Martin. TEEHANKEE, J., dissenting: I am constrained to dissent from the main opinion of Mr. Justice Martin which grants the petition and sets aside respondent court's order and writ of preliminary injunction of July 1, 1968 and would therefore require respondent Fernando Manalastas as assistant city public service officer of Manila (and all other city officials similarly situated) to comply with the PARGO subpoena "to testify to matters relevant to the investigation of anomalies and sworn statements involving or implicating certain City officials or other public officers."1 While the subpoena commands respondent Manalastas to appear as witness before the PARGO,2 on the basis whereof the main opinion finds that said respondent "is not facing any administrative charge" and that "he is merely cited as witness in connection with the fact-finding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or to file the corresponding charges",3 it is a fact shown by the very petition at bar itself and its Annexes B and B-1 that respondent Manalastas is in fact and for all intents and purposes subpoenaed as a respondent or one directly implicated with alleged bribery and graft in the said sworn statements that concededly as per the petition itself initiated the PARGO's alleged "fact-finding investigation."4 Thus Annex B of the petition which is a sworn statement of one Edilberto Arguelles, investigated by the PARGO on the overpricing of eight steam cleaners sold through him as commission agent to the City of Manila, sets forth the detailed allegations of said declarant that respondent Manalastas and a number of other city officials named and unnamed got the lion's share of the overpricing.

Annex B-1 of the petition is the sworn statement of one Carlos Montañez with reference to some overpriced equipment sold by him to the City of Manila wherein he likewise narrated in detail the modus operandi and specifically named respondent Manalastas and five other officials to whom he allegedly gave: "due monetary consideration." All claims of PARGO to the contrary notwithstanding, the very petition and said annexed sworn statements (which were not shown to respondent judge in spite of his expressly asking for them during the course of the hearing 5) show that respondent Manalastas (and others similarly situated) are indeed not merely witnesses but in reality respondents (subject to administrative and criminal charges.) Respondent has therefore correctly invoked Cabal vs. Kapunan,6 wherein the Court through then Chief Justice Roberto Concepcion held that therein petitioner rightfully refused to take the witness stand as against the order of the Presidential Committee investigating the complaint against him for alleged unexplained wealth (since such proceedings were in substance and effect a criminal one and his position was virtually that of an accused on trial and he therefore had the right to remain silent and invoke the privilege against selfincrimination in support of a blanket refusal to answer any and all questions) and ordered the dismissal of the criminal contempt charge against him. Pascual Jr. vs. Bd. of Examiners7 is equally in point, wherein the Court sustained the lower court's writ of injunction against the respondent board's order compelling therein petitioner to take the witness stand in a malpractice case (wherein he was respondent) in view of the penal nature of the proceedings and the right of the accused to refuse "not only to answer incriminatory questions, but also to take the witness stand."8 The Court therein stressed that "the constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens."" and that "while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment."

That petitioner's investigation and subpoena against respondent Manalastas were in substance and effect criminal in nature against him as a respondent (and not merely as witness) as indicated above, is borne out by the fact of record in Sugay vs. Pamaran 9 (of which the Court can well take judicial notice) that on July 22, 1971 respondent Manalastas as well as Carlos Montañez the trader (affiant in Annex B-1, petition, supra, 10) and a number of other city officials were charged by the city fiscal in the Circuit Criminal Court of Manila for violations of Republic Act 3019 (Anti-Graft Law) in connection with the alleged gross overpricing of the same equipment (steam cleaners and air compressor) purchased for the City. The main opinion's justification for upholding the subpoena, viz, that "since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege (against self-incrimination)would thus be unnecessary" 11 thus appears to be flawed in fact and in law: respondent was in fact being investigated as respondent-suspect and without submitting to the investigation was actually criminally charged in court; as a pure matter of legal principle, the 1973 Constitution has recognized the necessity of strengthening (and extending) the privilege against self-incrimination by expressly providing as a constitutional mandate in the Bill of Rights that "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right" (Article IV, section 20) and outlawing the use of any confession obtained in violation of said section by declaring its inadmissibility in evidence. Respondent Manalastas was therefore justified in invoking the privilege against self-incrimination and in securing the respondent court's injunction against enforcement of petitioner's subpoena. Respondent was unquestionably a party respondent who under the doctrine of Cabal and Pascual, supra, had the right to remain silent and invoke the privilege against self-incrimination and refuse to take the witness stand. This legal and constitutional right may not be defeated by the transparent expedient of citing respondent as a supposed witness in what was avowed to be a general fact-finding investigation but obviously was a fishing expedition to ensnare respondent as a prime suspect, as borne out by the sworn statements withheld from respondent court and now annexed to the very petition at bar and petitioner's contention that "In effect, the injunction issued by the lower court is one to restrain criminal prosecutions." This contention has of course been proven baseless by the events already cited above that such criminal prosecutions were in fact filed in court against respondent and others without the need of petitioner's "fact-finding investigation" and subpoenas. The thrust of all this is that the State with its overwhelming and vast powers and resources can and must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the constitutional guarantees of the individual's right to privacy, silence and due process and against selfincrimination and unreasonable search and seizure. This means that leads and

charges must be investigated and followed up through the assistance of the corresponding police and law enforcement agencies as provided in the petitioner's executive charter 12 and the evidence secured by proper applications for search warrants, and as conceded in the petition itself, after the corresponding report to the President "to file the corresponding charges against the persons who may appear responsible or merely refer them to other appropriate offices such as the Fiscal's office, like what was done in other cases." 13 There appears to be validity in respondent's contention that the subpoena power granted petitioner in its executive charter does not apply to general fact-finding investigations conducted by it. 14 I find no need, however, of going further into this issue, since this dissent is based directly on the fundamental tenet that respondent Manalastas was unquestionably being investigated by petitioner as respondent and a prime suspect (and not as a mere witness) and accordingly, under settled doctrine, he had every right to remain silent and to invoke his right against self-incrimination and to refuse to take the witness stand. I therefore vote for upholding respondent court's injunction against enforcement of petitioner's subpoena. Footnotes 1 "Sec. 64 (c). To order, when in his opinion the good of the public service so requires, an investigation of any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee, or person by whom such investigation shall be conducted." 2 Executive Order No. 208, dated February 9, 1967, converted the Agency into a division under the Executive Office and is now known as "Complaints and Investigating Office". 3 Executive Order No. 88, dated September 25, 1967, amending in part Executive Order No. 4. 4 Executive Order No. 4, para. (5). "The Agency is hereby vested with all the powers of an investigating committee under Sections 71 and 580 of the Revised Administrative Code, including the power to summon witnesses by subpoena duces tecum, administer oaths, take testimony or evidence relevant to the investigation. 5 Resolution of the Court on November 28, 1969 excluded Ramon D. Bagatsing as petitioner in the case.

6 See Matute v. Court of Appeals, 31 Jan. 1969, 26 SCRA 799, 800; Central Bank v. Cloribel, L-26971, 11 April 1972, 44 SCRA 314. 7 Administrative Law, Jaffe and Nathanson, 1961 ed., 491. 8 Pope & Talbot, Inc. v. Smith, 340 P. 2d 964, citing 1 Davis Administrative Law Treatise, 160. 9 See Notes on 27 ALR 2d 1208, 1209, and cases cited. 10 Marchitto v. Waterfront Commission of New York Harbor, 160 A 2d 832. 11 Section 71, Revised Administrative Code. 12 Section 580, Revised Administrative Code. 13 See Sections 1 and 3, Rule 23, Rules of Court. 14 Answer, Respondents, at 43, 45 Case Records. 15 See Section 4, Rule 23, Rules of Court. 16 1 Davis, Administrative Law Treatise 171. 17 NLRB v. Anchor Rome Mills, Inc., 197 F. 2d 447 (5th Cir. 1952). 18 Oklahoma Press Pub. Co. v. Walling, 327 US 185 (1946). 19 SEC v. Vacuum Can Co., 157 F. 2d 530, cert den 330 US 820 (1947). 20 See Marchitto, ante. 21 United States v. Morton Salt Co., 338 US 632 (1950), abandoning the Harriman, 211 US 407; (1908) and American Tobacco, 264 US 298; (1924) doctrine against "fishing expedition". 22 Adams v. FTC 296 F, 2d 861, cert den 369 US 864 (1962). 23 Petition, at 6, Case Records; See Annexes B, B-1, Petition; at 17-24, Case Records.

24 Petition, at 7, Case Records. 25 Rights of Witnesses in Administrative Investigations, 54 Harv. L. Rev. 1214. 26 L-19052, 29 Dec. 1962, 6 SCRA 1064, per Concepcion, J. 27 L-25018, 26 May 1969, 28 SCRA 345, per Fernando, J. 28 Memorandum, Petitioners, at 154, Case Records. 29 Idem; Petition, at 8, Case Records. 30 Rights of Witnesses in Administrative Investigations, ante. 31 Memorandum, Respondents, at 160, 161, Case Records. 32 US v. Borja, 191 F. Supp 563, 566; Farkas vs. Texas Instrument, Inc., 375 F. 2d 629, 632, dert den 389 US 977. 33 San Miguel Brewery, Inc. vs. Magno, L-21879, 29 Sept. 1967, 21 SCRA 297. 34 Idem; also 2 Modern Constitutional Law, Antieau 1969 ed., 648. 35 Petite vs. United States, 361 US 529 (1960). FERNANDO J., concurring. 1 Cf. I Davis, Administrative Law Treatise 159-232 (1958). 2 Cf. Jaffe Judicial Control of Administrative Action, 115-119 (1965). 3 Cf. Parker, Administrative Law, 135-143 (1952). . 4 Cf. Katz Cases and Materials in Administrative Law, 175221 (1947). 5 Cf. McFarland and Vanderbilt, Administrative Law: Cases and Materials, 83-86 (1952).

6 According to Article IV, Section 3 of the present Constitution: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." 7 338 US 632 (1950). 8 Ibid, 652-653. 9 Cf. F. T. C. v. Browning, 435 F2d 96 (1970); Local No. 104, Sheet Metal Worker's International Association v. Equal Employment Opportunity Commission, 439 F2d 237 (1971); United States v. Newman 441 F2d 165 (1971);Securities and Exchange Commission v. First Security Bank of Utah, 447 F2d 166(1971); Modine Manufacturing Company v. National Labor Relations, 453 F2d 292(1971); United States v. Litton Industries, Inc., 462 F2d 14 (1972); Burlington Northern Inc. v. Interstate Commerce Commission, 462 F2d 280 (1972); Wilmoth v. Hansel, 25 A 86 (1892); Flanagan v. New York LE & W.R. Co., 32 S. 84 (1895); Mobil Oil Corporation v. Durkin, 278 A2d 477 (1971); Fred Depkin & Son, Inc. v. Director, New Jersey Division of Taxation, 276 A2d 161 (1971); Appeal of Ohio Radio, Inc., 266 NE 2d 575 (1970); Mckay v. Stewart & Cecire v. Stewart, 272 NE 2d 887 (1971); McKay v. Cecire 324 S2d 302 (1971); Koch v. Kosydar 290 NE 2d 847 (1972); State Real Estate Commission v. Roberts, 271 A2d 246 (1970). 10 338 US 632, 651-652 (1950). 11 Cf. U.S. v. Navarro, 3 Phil, 143 (1904); Ocampo v. Jenkins, 14 Phil. 681 (1909); Worcester v. Ocampo, 22 Phil. 42 (1912); U.S. v. Ipil, 27 Phil. 530 (1914); Uy Kheytin v. Villareal, 42 Phil. 886 (1920); People v. Carlos, 47 Phil. 626 (1925); Alvarez v. Court of First Instance, 64 Phil. 33 (1937); Rodriguez v. Villamiel, 65 Phil. 230 (1937); Yee Sue Kay v.

Almeda, 70 Phil. 141 (1940); Moncado v. Peoples Court, 80 Phil. 1 (1948). 12 At 9. 13 According to Article IV, Section 20 of the present Constitution: "No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." 14 Cf. Magtoto v. Manguera, L-37021, March 3, 1975, 63 SCRA 4. 15 At 9. 16 67 Phil. 62 (1939). 17 Cabal v. Kapunan, Jr., L-19052, December 29, 1962, 6 SCRA 1064. . 18 Pascual, Jr. v. Board of Medical Examiners, L-25018, May 26, 1969,28 SCRA 345. TEEHANKEE, J., dissenting. 1 Petition, p. 11, prayer (b). 2 Now known as Complaints and Investigating Office (CIO) under Ex. Order No. 208, dated Feb. 9, 1967. 3 Main opinion at p. 9 thereof, citing petitioners' Memorandum at p. 154, Rollo, emphasis supplied. 4 Petition, p. 3, par. 5. 5. Answer, Rollo, p. 40. 6 6 SCRA 1064. 7 28 SCRA 344, per Fernando, J.; emphasis supplied.

8 Idem. at p. 348; citing Chavez vs. CA, 24 SCRA 663. 9 L-33877-79, 41 SCRA 260 (Sept. 30, 1971). 10 At page 2 hereof. 11 At page 9. 12 Ex. Order No. 88, dated Sept. 25, 1967, amending Ex. Order No. 9 which created petitioner "as the executive instrumentality in the Office of the President" thus provides that petitioner shall "receive and evaluate, and (to) conduct fact-finding investigations of sworn complaints against the acts, conduct or behavior of any public official or employee and (to) file aid prosecute the proper charges with the appropriate agency." Petition, Annexes A and A-1. (Emphasis supplied). . 13 Petition, at page 8. 14 Vide Harriman vs. Interstate Commerce Commission, 211 U.S. 407 and Federal Trade Commission vs. American Tobacco Co., 264 U.S. 298, where Justice Holmes in the first case ruled out a federal commission's application to require witness to testify before it except in connection with specific complaints for violation of the Interstate Commerce Act or with its investigation of specific subjects that might have been the object of complaint. In the second case, Justice Holmes likewise ruled against a federal commission's fishing expeditions into private papers on the mere possibility that they may disclose evidence of crime in view of the Constitutional provision against unreasonable searches and seizures.

Lastimosa v Vasquez

EN BANC

G.R. No. 116801 April 6, 1995 GLORIA G. LASTIMOSA, First Assistant Provincial Prosecutor of Cebu, petitioner, vs. HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE ARTURO C. MOJICA, DEPUTY OMBUDSMAN FOR THE VISAYAS, and HONORABLE FRANKLIN DRILON, SECRETARY OF JUSTICE, and UNDERSECRETARY OF JUSTICE RAMON J. LIWAG, respondents.

MENDOZA, J.: This case requires us to determine the extent to which the Ombudsman may call upon government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as ordered by the Ombudsman, an administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime was filed against her and the Provincial Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the Ombudsman. In the meantime the two were placed under preventive suspension. This is a petition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman with respect to the two proceedings. The background of this case is as follows: On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed 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. 1 The cases were filed with the Office

of the Ombudsman-Visayas where they were docketed as OMBVIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively. The complaint was assigned to a graft investigation officer who, after an investigation, found no prima facie evidence and accordingly recommended the dismissal of the complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez, disapproved the recommendation and instead directed that Mayor Ilustrisimo be charged with attempted rape in the Regional Trial Court.2 Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao City, . . ." 3 The case was eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa. It appears that petitioner conducted a preliminary investigation on the basis of which she found that only acts of lasciviousness had been committed.4 With the approval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial Court of Santa Fe. 5 In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with attempted rape.6 As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner 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. 7 For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor were given until August 3, 1994 within which to submit their answer. 8 An answer 9 was timely filed by them and hearings were thereupon conducted. It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors with the Office of the Ombudsman for

Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One was an administrative complaint for violation of Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) 10 and another one was a criminal complaint for violation of §3(e) of Republic Act No. 3019 and Art. 208 of the Revised Penal Code. 11 The complaints were based on the alleged refusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of six (6) months, 12 pursuant to Rule III, §9 of the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in relation to §24 of R.A. No. 6770. The order was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial Prosecutor of Cebu. On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders 13 in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter affidavits and controverting evidence. On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari and prohibition to set aside the following orders of the Office of the Ombudsman and Department of Justice: (a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica and related orders, referring to the Office of the Cebu Provincial Prosecutor the records of OMB-VIS-CRIM-93-0140, entitled Jessica V. Dayon vs. Mayor Rogelio Ilustrisimo, "for filing of the appropriate action (for Attempted Rape) with the Regional Trial Court of Danao City. (b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in writing within three (3) days from receipt 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 Mayor Rogelio Ilustrisimo. (c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J. Liwag, ordering 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 respondent Mayor Ilustrisimo in recognition of the authority of said Office. (d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved by Ombudsman Conrado Vasquez, and related orders in OMB-VIS(ADM)-94-0189, entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension for a period of six (6) months, without pay. (e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to implement the letter dated August 15, 1994 of Ombudsman Vasquez, together with the Order dated August 15, 1994, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension. (f) Department Order No. 259 issued by Acting Secretary Liwag on August 18, 1994, designating Assistant Regional State Prosecutor Concepcion Acting Provincial Prosecutor of Cebu. Petitioner raises a number of issues which will be discussed not necessarily in the order they are stated in the petition. I. The pivotal question in this case is whether 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 Ilustrisimo. Lastimosa claims that the 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. It then became the duty of the Ombudsman's office, according to petitioner, to finish the preliminary investigation by filing the information in court instead of asking the Office of the Provincial Prosecutor to do so. Petitioner contends that the preparation and filing of the information were part and parcel of the preliminary investigation assumed by the Office of the Ombudsman and the filing of information in court could not be delegated by it to the Office of the Provincial Prosecutor. Petitioner defends her actuations in conducting a preliminary investigation as having been made necessary by the insistence of the Ombudsman to delegate the filing of the case to her office. In any event, petitioner contends, 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. For this reason it is argued that 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. Petitioner's contention has no merit. 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." 14 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 15 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. In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance. §31 of the Ombudsman Act of 1989 (R.A. No. 6770) 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. (Emphasis added) It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an information for attempted rape against Mayor Rogelio Ilustrismo. It does not matter that the Office of the Provincial Prosecutor had already conducted the preliminary investigation and all that remained to be done was for the Office of the Provincial Prosecutor to file the corresponding case in court. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. This is because under §31 of the Ombudsman's Act, 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. 16 Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman. II. The records show that despite repeated orders of the Ombudsman, petitioner refused to file an information for attempted rape against Mayor Ilustrisimo, insisting that after investigating the complaint in the case she found that he had committed only acts of lasciviousness. §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." There is no merit in the argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an administrative, rather than judicial, proceeding before the Office of the Ombudsman. As petitioner herself says in another context, the preliminary investigation of a case, of which the filing of an information is a part, is quasi judicial in character. Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance, disobedience or resistance of a lawful process, order or command of the Ombudsman thus making her liable for indirect contempt under Rule 71, §3 of the Rules of Court

is for respondents to determine after appropriate hearing. At this point it is important only to note the existence of the contempt power of the Ombudsman as a means of enforcing his lawful orders. III. Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the Ombudsman's power to place her in the meantime under preventive suspension. The pertinent provisions of the Ombudsman Act of 1989 state: §21. Officials Subject To Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. §22. Preventive Suspension. — The Ombudsman or his Deputy may 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. A.

Petitioner contends that her suspension is invalid because the order was issued without giving her and Provincial Prosecutor Kintanar the opportunity to refute the charges against them and because, at any rate, the evidence against them is not strong as required by §24. The contention is without merit. Prior notice and hearing is a not required, such suspension not being a penalty but only a preliminary step in an administrative investigation. As held in Nera v. Garcia: 17 In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was 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. (Emphasis added). It is true that, under §24 of the Ombudsman's Act, to justify the preventive suspension of a public official, the evidence against him should be strong, and any of the following circumstances is present: (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. As held in Buenaseda v. Flavier, 18 however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case:

The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. . . . 19 In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of petitioner and Provincial Prosecutor Kintanar on the following grounds: A careful assessment of the facts and circumstances of the herein cases and the records pertaining thereto against respondents [Provincial Prosecutor Kintanar and herein petitioner] clearly leads to the conclusion that the evidence on record of guilt is strong and the charges involved offenses of grave misconduct, gross neglect of duty and dishonesty which will warrant respondents [Provincial Prosecutor Kintanar and herein petitioner] removal from the service. Moreover, considering the unabashed attitude of respondents in openly announcing various false pretexts and alibis to justify their stubborn disregard for the lawful directives of the Ombudsman as their official position in their pleadings filed in OMB-VIS-0-94-0478 and in print and broadcast media, the probability is strong that public service more particularly in the prosecution of cases referred by the Office of the Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and prejudiced and the records of said cases even be tampered with if respondents [Provincial Prosecutor Kintanar and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's Office during the pendency of these proceedings. Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts justifying the preventive suspension of petitioner and the Provincial Prosecutor since the acts alleged in the administrative complaint against them were done in the course of their official transaction with the Office of the Ombudsman. The administrative complaint against petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent Deputy Ombudsman did not have to go far to verify the matters alleged in

determine whether the evidence of guilt of petitioner and Provincial Prosecutor was strong for the purpose of placing them under preventive suspension. Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be hampered. 20 In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. B. Petitioner questions her preventive suspension for six (6) months without pay and contends that it should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in error. She is referring to cases where the law is either silent or expressly limits the period of suspension to ninety (90) days. With respect to the first situation, we ruled in the case of Gonzaga v. Sandiganbayan 21 that — To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows: 1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuances thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act. 2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall both be counted

in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the continuance of his suspension shall be for a reasonable time as the circumstances of the case may warrant. On the other hand, petitioner and the Provincial Prosecutor were placed under preventive suspension pursuant to §24 of the Ombudsman Act which expressly provides that "the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay." Their preventive suspension for six (6) months without pay is thus according to law. C. Nor is there merit in petitioner's claim that the contempt charge should first be resolved before any action in the administrative complaint case can be taken because the contempt case involves a prejudicial question. There is simply no basis for this contention. The two cases arose out of the same act or omission and may proceed hand in hand, or one can be heard before the other. Whatever order is followed will not really matter. WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Francisco, JJ., concur. Romero, J., is on leave. Separate Opinions

REGALADO, J., concurring: I concur and welcome this opportunity to make some observations on the matter of the power of the Ombudsman to preventively suspend petitioner for six (6) months without pay, and which petitioner assails in the case at bar.

It would, of course, be a handy expedient to just refer petitioner to the provisions of Section 24 of Republic Act No. 6770 which expressly grants that authority to respondent Ombudsman. Conveniently, we would merely need to remind petitioner that for this Court to limit such authority to suspend to a lesser period would, in effect, be constitutive of judicial legislation. But I will go a little further by essaying the rationale for such conferment of a more extended authority to the Ombudsman on the issue of preventive suspension, vis-a-vis the provisions on preventive suspension in other enactments, and thereby dispel lingering doubts or misgivings thereon. It is true that the Civil Service Decree allows a maximum preventive suspension of only ninety (90) days. 1 However, a comparison of the grounds therefor2 with those provided for in the Ombudsman Act 3 will readily show that there is in the latter the added requirement that the evidence of guilt is strong and the additional ground that "the respondent's continued stay in office may prejudice the case filed against him." Further, in the aforecited Section 41 of the Civil Service Decree, preventive suspension may be imposed on the mere simple showing that the charge involves dishonesty, oppression or grave misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service: whereas in Section 24 of Republic Act No. 6770, it is required that such charges must be supported by strong evidence of guilt in order to justify preventive suspension. On the other hand, the still shorter period of sixty (60) days prescribed in the Local Government Code of 1991 4 as the maximum period for the preventive suspension of local elective officials is justifiable and deemed sufficient not only because the respondent involved is elected by the people, but more precisely because such preventive suspension may only be ordered "after the issues are joined." That means that before the order of suspension is issued, all the preliminary requirements and exchanges had been completed and the respondent had already filed his counter-affidavits to the affidavits of the complainant and the latter's witnesses. At that stage, the case is ready for resolution if the parties would not opt for a formal hearing. The preparatory procedures before such stage is reached undoubtedly necessitate and consume a lot of time. Yet, it will be noted that those preliminary steps are included in the case of the period of preventive suspension ordered even before issues are joined, as in preventive suspension by the Ombudsman pursuant to

the aforecited Section 24 of Republic Act No. 6770. They conceivably include the service of the subpoena or order for the respondent to file his counter-affidavits, the usual resort to motions for extension of time to comply with the same, the improvident recourse to the Supreme Court to suspend, annul or otherwise delay the proceedings, as well as the filing and resolution of motions to dismiss or for a bill of particulars or for the inhibition of the investigating officer, the denial of which motions is often also brought all over again to this Court on petitions for certiorari. An illustration of how the proceedings can be delayed by such procedural maneuvers is afforded by the case of Buenaseda, et al. vs. Flavier, et al.,5 the decision in which was ultimately promulgated by this Court on September 21, 1993. The petitioners therein questioned through repeated resourceful submissions the order of preventive suspension issued by the Ombudsman on January 7, 1992 and it took more than twenty (20) months before said order could eventually be reviewed on the merits and finally sustained by the Supreme Court. That is not all. Even after the formal hearing is scheduled, respondents can easily resort to the same dilatory tactics usually employed by an accused in regular court trials in criminal actions. Such stratagems can obviously result in the continued occupancy by the respondent of his office and, in the language of the law, could "prejudice the case filed against him." The longer period of six (6) months for preventive suspension under Republic Act No. 6770 was evidently induced by a desire to more meaningfully emphasize and implement the authority of the Office of the Ombudsman over public officials and employees in order to serve as a deterrent against illegal, unjust, improper and inefficient conduct on their part. As the agency mandated by the Constitution to undertake such task, it was invested with the corresponding authority to enable it to perform its mission. This intention is easily deducible from the pertinent constitutional provisions creating said office and from the express provisions of Republic Act No. 6770. Significantly, it is the only body authorized to investigate even officials removable by impeachment. 6 For purposes of the present case, therefore, and specifically on the issue subject of this concurring opinion, it would be advisable to recall what we said in Buenaseda, to wit: The purpose of RA No. 6770 is to give the Ombudsman such powers as he may need to perform

efficiently the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objective of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided. A statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for Department of which it was created (Cf. Department of Public Utilities v. Arkansas Louisiana Gas, Co., 200 Ark. 983, 142 S.W. [2d] 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E. 438 [1934]). On the foregoing considerations, which are much a matter of judicial and legislative experience, it is puerile for petitioner to impugn the expanded authority of preventive suspension as now granted by law to the Ombudsman. In fact, in certain situations, the maximum allowable period may even prove too short to subserve the intended purpose of the law. Footnotes 1 Petition for Certiorari and Prohibition, Annex A, Rollo, pp. 42-43. 2 Annex B, Rollo, pp. 47-52. 3 Annex D, Rollo, p. 54. 4 Annex H, Rollo, pp. 59-69. 5 Annex I, Rollo, p. 70. 6 Annex E & F, Rollo, pp. 55-57. 7 Rollo, p. 72. 8 Annex O, Rollo, p. 80. 9 Annex Q, Rollo, pp. 83-90. 10 OMB-VIS-(ADM)-94-0189.

11 OMB-VIS-(CRIM)-94-0475. 12 Annex V, Rollo, pp. 95-96. 13 Annexes FF and GG, Rollo, pp. 110 and 118. 14 Ombudsman Act of 1989, (R.A. No. 6770) §15(1). 15 Deloso v. Domingo, 191 SCRA 545 (1990). 16 ADMINISTRATIVE CODE of 1987, Bk IV, Ch. 7, §38(1). 17 106 Phil. 1031 (1960). Accord, Buenaseda v. Flavier, 226 SCRA 645 (1993). 18 226 SCRA 645 (1993). 19 At 655. 20 Cf. Lacson v. Rogue, 92 Phil. 456, 469 (1953). 21 201 SCRA 417, 427-8 (1991). REGALADO, J., concurring: 1 Section 42, Presidential Decree No. 807. 2 Section 41, id. 3 Section 24, Republic Act No. 6770. 4 Section 63, Republic Act No. 7160. 5 G.R. No. 196719, September 21, 1993, 226 SCRA 645. 6 Section 22, Republic Act No. 6770.

Saunar v Executive Secretary THIRD DIVISION December 13, 2017 G.R. No. 186502 CARLOS R. SAUNAR, Petitioner vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA AND CONSTANCIA P. DE GUZMAN, CHAIRPERSON OF THE PRESIDENTIAL ANTI-GRAFT COMMISSION, Respondents DECISION MARTIRES, J.: This petition for review on certiorari seeks to reverse and set aside the 20 October 2008 Decision1 and the 17 February 2009 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 100157 which affirmed the 19 January 2007 decision3 of the Office of the President (OP) dismissing petitioner Carlos R. Saunar (Saunar) from government service. THE FACTS Saunar was a former Regional Director of the National Bureau of Investigation (NBI), which he joined as an agent in 1988. Through the years, he rose from the ranks and eventually became the Chief of the Anti-Graft Division. During his time as chief of the said division, Saunar conducted an official investigation regarding the alleged corruption relative to the tobacco excise taxes and involving then Governor Luis "Chavit" Singson, former President Joseph E. Estrada (President Estrada), and former Senator Jinggoy Estrada. President Estrada's assailed involvement in the tobacco excise tax issue became one of the predicate crimes included in his indictment for plunder.4 In Special Order No. 40035 dated 27 August 2004, Saunar was reassigned as regional director for Western Mindanao based in Zamboanga City. During his stint as such, he received a subpoena ad testificandum from the Sandiganbayan requiring him to testify in the plunder case against President Estrada. After securing approval from his immediate supervisor Filomeno Bautista (Bautista), Deputy Director for Regional Operation Services (DDROS), Saunar appeared before the Sandiganbayan on several hearing dates, the last being on 27 October 2004.6

On 29 October 2004, then NBI Director Reynaldo Wycoco (Wycoco) issued Special Order No. 0050337 informing Saunar that he was relieved from his duties as regional director for Western Mindanao and was ordered to report to the DDROS for further instructions. Pursuant thereto, he reported to Bautista on the first week of November 2004. Bautista informed Saunar that an investigation was being conducted over his testimony before the Sandiganbayan and that he should just wait for the developments in the investigation. In the meantime, Bautista did not assign him any duty and told him to be available at any time whenever he would be needed. He made himself accessible by staying in establishments near the NBI. In addition, he also attended court hearings whenever required.8 On 6 October 2006, Saunar received an order from the Presidential Anti-Graft Commission (PAGC) requiring him to answer the allegations against him in the PAGC Formal Charge dated 3 October 2006. The charge was based on a letter, dated 19 August 2005, from Wycoco recommending an immediate appropriate action against Saunar for his failure to report for work since 24 March 2005, without approved leave of absence for four (4) months. 9 On 23 October 2006, Saunar was reassigned as regional director of the Bicol Regional Office. On 29 January 2007, he received a copy of the OP decision dismissing him from service. The OP Decision In its 19 January 2007 decision, the OP found Saunar guilty of Gross Neglect of Duty and of violating Section 3(e) of Republic Act (R.A.) No. 3019, and dismissed him from service. It pointed out that Saunar failed to report for work for more than a year which he himself admitted when he explained that he did not report for work because he had not been assigned any specific duty or responsibility. The OP highlighted that he was clearly instructed to report to the DDROS but he did not do so. It added that it would have been more prudent for Saunar to have reported for work even if no duty was specifically assigned to him, for the precise reason that he may at any time be tasked with responsibilities. The OP, however, absolved Saunar from allegedly keeping government property during the time he did not report for work, noting that he was able to account for all the items attributed to him. The dispositive portion reads: WHEREFORE, premises considered, and as recommended by PAGC, Atty. Carlos R. Saunar, Regional Director, NBI, for Gross Neglect of Duty under Section 22(b), Rule XIV of the Omnibus Rules Implementing Book V of EO 292 in relation to Section 4(A) of RA 6713 and for violation of Section 3(e) of RA 3019, is hereby DISMISSED from government service with cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification for reemployment in the government service.10

Saunar moved for reconsideration but it was denied by the OP in its 12 June 2007 resolution.11 Undeterred, he appealed before the CA. The CA Ruling In its assailed 20 October 2008 decision, the CA affirmed in toto the OP decision. The appellate court ruled that Saunar was not deprived of due process because he was informed of the charges against him and was given the opportunity to defend himself. It expounded that the absence of formal hearings in administrative proceedings is not anathema to due process. On the other hand, the CA agreed that Saunar was guilty of Gross Neglect of Duty as manifested by his being on Absence Without Leave (AWOL) for a long period of time. The appellate court disregarded Saunar's explanation that he stayed in establishments nearby and that he had attended court hearings from time to time. In addition, the CA found that Saunar violated Section 3(e) of R.A. No. 3019 because public interest was prejudiced when he continued to receive his salary in spite of his unjustified absences. Thus, it ruled: WHEREFORE, in view of the foregoing premises, the petition for review filed in this case is hereby DENIED and, consequently, DISMISSED for lack of merit, and the assailed Decision of the Executive Secretary Eduardo R. Ermita dated January 19, 2007 is hereby AFFIRMEDintoto.12 Saunar moved for reconsideration but it was denied by the CA in its assailed 17 February 2009 resolution. Hence, this appeal raising the following: ISSUES I WHETHER THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PETITIONER WAS NOT DENIED DUE PROCESS AND THAT RESPONDENTS DID NOT VIOLATE PETITIONER'S RIGHT TO SECURITY OF TENURE AS GUARANTEED IN THE CONSTITUTION; AND II WHETHER THE HONORABLE COURT OF APPEAELS GRAVELY ERRED AND GRAVELY ABUSED ITS DISCRETION IN UPHOLDING THE FINDINGS OF RESPONDENTS THAT PETITIONER COMMITTED GROSS NEGLECT OF DUTY, HAD ABANDONED HIS POST AND WENT ON AWOL FOR HIS ALLEGED FAILURE TO REPORT FOR WORK FROM MARCH 24, 2005 TO MAY 2006.13

THE COURT’S RULING The petition is meritorious. Administrative due process revisited Saunar bewails that he was deprived of due process, pointing out that no real hearing was ever conducted considering that the clarificatory conference conducted by the P AGC was a sham. In addition, he asserts that he was not notified of the charges against him because he was only made aware of the allegations after the P AGC had formally charged him. Further, Saunar highlights the delay between the time PAGC received Wycoco’s letter-complaint and when he received the formal charge from the P AGC. Section 1, Article III of the Constitution is similar with the Fifth and Fourteenth Amendment of the American Constitution in that it guarantees that no one shall be deprived of life, liberty or property without due process of law. While the words used in our Constitution slightly differ from the American Constitution, the guarantee of due process is used in the same sense and has the same force and effect.14 Thus, while decisions on due process of American courts are not controlling in our jurisdiction, they may serve as guideposts in the analysis of due process as applied in our legal system. In American jurisprudence, the due process requirement entails the opportunity to be heard at a meaningful time and in a meaningful manner.15 Likewise, it was characterized with fluidity in that it negates any concept of inflexible procedures universally applicable to every imaginable situation.16 In Goldberg v. kelly(Goldberg), 17 the United States (US.) Supreme Court ruled that due process requires the opportunity for welfare r,ecipients to confront the witnesses against them at a pre-termination hearing before welfare benefits are terminated, to wit: The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decision maker in writing or second hand through his caseworker.x x x Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are wholly unsatisfactory basis for decision. In Goldberg, the U.S. Supreme Court went on to highlight the importance of confronting the witnesses presented against the claimant, viz:

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses. x x x What we said in Greene v McElroy, 360 US 474, 496-497, 3 Led 2d 1377, 1390, 1391, 79 S Ct 1400 (1959), is particularly pertinent here: Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment . . . This Court has be zealous to protect these rights from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative actions were under scrutiny. Welfare recipients must therefore be given an opportunity to confront and crossexamine the witnesses relied on by the department.18 In subsequent decisions, the U.S. Supreme Court clarified that a lack of formal hearing in the administrative level does not violate procedural due process. In Arnett v. Kennedy (Arnett), 19 a case involving the dismissal of a nonprobationary federal employee, the US Supreme Court ruled that a trial-type hearing before an impartial hearing officer was not necessary before the employee could be removed from office because the hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient requirement of the Due Process Clause. In Mathews v. Eldridge (Mathews), 20 the U.S. Supreme Court explained that an evidentiary hearing prior to termination of disability benefits is not indispensable, to wit: Only in Goldberg has the Court held that due process requires an evidentiary hearing prior to a temporary deprivation. It was emphasized there that welfare assistance is given to persons on the very margin of subsistence: The crucial factor in this context x x x is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Eligibility for disability benefits, in contrast, is not based upon financial need. x x x xxxx

All that is necessary is that the procedures be tailored, in light of the decision to be made, to the "capacities and circumstances of those who are to be heard to insure that they are given a meaningful opportunity to present their case. In assessing what process is due in this case, substantial weight must be given to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals. This is especially so where, as here, the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as to subsequent judicial review, before the denial of his claim becomes final. 21 It is true that in both Arnett and Mathews, the U.S. Supreme Court ruled that due process. was not violated due to the lack of a formal hearing before the employee "was dismissed and welfare benefits were cancelled in the respective cases: Nevertheless, in bo.th cases it was recognized that the aggrieved party had the opportunity for a hearing to settle factual or evidentiary disputes in subsequent procedures. In our legal system, however, the opportunity for a hearing after the administrative level may not arise as the reception of evidence or the conduct of hearings are discretionary on the part of the appellate courts. In our jurisdiction, the constitutional guarantee of due process is also not limited to an exact definition.22 It is flexible in that it depends on the circumstances and varies with the subject matter and the necessities of the situation.23 In the landmark case of Ang Tibay v. The Court of Industrial Relations,24 the Court eruditely expounded on the concept of due process in administrative proceedings, to wit: The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justiciable cases coming before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are cardinal primary rights which must be respected even in proceedings of this character: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Justice Hughes, in Morgan v. U. S., 304 U. S. 1, 58 S. Ct. 773, 999, 82 Law. ed 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play." (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 Law. ed. 1288.) In the language of this Court in

Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental principle that the genius of constitutional government is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G. R. No. 45844, promulgated November 29, 1937, XXXV10. G. 1335), but the evidence must be "substantial." (Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U. S. 142, 147, 57 S. Ct. 648, 650, 81 Law ed 965.) "Substantial evidence is more than a mere scintilla It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater Knitting Co. v. National Labor Relations Board, ·2 Cir., 98 F. 2d 758, 760.) ... The statute provides that 'the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U. S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93, 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct. 565, 569, 68 Law. ed. lola; Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 442, 50 S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)" (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U. S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see

that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute of any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal, a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers (Section 10, ibid.) (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally impossible for the titular heads of the Court of Industrial Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority ,authorizing examiners or other subordinates to render final decision, with right to appeal to board or commission, but in our case there is no such statutory authority. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. 25 (emphases supplied) From the pronouncements of the Court in Ang Tibay, the fluid concept of administrative due process continued to progress. In In Re: De Borja and Flores,26 the Court ruled that there was no denial of due process when the Public Service Commission cancelled the certificate of Jose de Borja to operate an ice plant without prior notice or hearing because a hearing was conducted after the applicant filed a motion for reconsideration. In Manila Trading Supply Co. v. Philippine Labor Union,27 the Court ruled that due process was observed even if the report of the investigating officer was not set for hearing before the Court of Industrial Relations because during the investigation stage, the parties were given the opportunity to cross-examine and present their side to the case. It is noteworthy that in both cases due process was observed because the parties were given the chance for a hearing where they could confront the witnesses against them. In Gas Corporation of the Phils. v. Minister Inciong, 28 the Court explained that there is no denial of due process when a party is afforded the right to crossexamine the witnesses but fails to exercise the same, to wit:

1. The vigor with which counsel for petitioner pressed the claim that there was a denial of procedural due process is inversely proportional to the merit of this certiorari and prohibition suit as is quite evident from the Comment of the office of the Solicitor General. It is undoubted that the due process mandate must be satisfied by an administrative tribunal or agency. So it was announced by Justice Laurel in the landmark case of Ang Tibay v. Court of Industrial Relations. That is still good law. It follows, therefore, that if procedural due process were in fact denied, then this petition must prosper. It is equally wellsettled, however, that the standard of due process that must be met in proceedings before administrative tribunals allows a certain latitude as long as the element of fairness is not ignored. So the following recent cases have uniformly held: Maglasang v. Opie, Nation Multi Service Labor Union v. Agcaoili, Jacqueline Industries v. National Labor Relations Commission, Philippine Association of Free Labor Unions v. Bureau of Labor Relations, Philippine Labor Alliance Council v. Bureau of Labor Relations, and Montemayor v. Araneta University Foundation. From the Comment of the office of the Solicitor General, it is quite clear that no imputation of arbitrariness can be justified. The opportunity to present its side of the case was given both parties to the controversy. If, for reasons best known to itself, petitioner did not avail of its right to do so, then it has only itself to blame. No constitutional infirmity could then be imputed to the proceeding before the labor arbiter.29 (emphasis supplied) Again, there was no denial of due process in the above-mentioned case because the parties were ultimately given the chance to confront the witnesses against them. It just so happened that therein petitioner failed to promptly avail of the same. In Arboleda v. National Labor Relations Commission (Arbqleda), 30 the Court expounded that administrative due process does not necessarily connote full adversarial proceedings, to wit: The requirement of notice and hearing in termination cases does not connote full adversarial proceedings as elucidated in numerous cases decided by this Court. Actual adversarial proceedings become necessary only for clarification or when there is a need to propound searching questions to witnesses who give vague testimonies. This is a procedural right which the employee must ask for since it is not an inherent right, and summary proceedings may be conducted thereon.31 (emphasis supplied) Thus, while the Court in Arboleda recognized that the lack of a formal hearing does not necessarily transgress the due process guarantee, it did not however regard the formal hearing as a mere superfluity. It continued that it is a procedural right that may be invoked by the party. It is true that in subsequent cases,32 the Court reiterated that a formal hearing is not obligatory in administrative proceedings because the due process requirement is satisfied if

the parties are given the opportunity to explain their respective sides through position papers or pleadings. Nonetheless, the idea that a formal hearing is not indispensable should not be hastily thrown around by administrative bodies. A closer perusal of past jurisprudence shows that the Court did not intend to trivialize the conduct of a formal hearing but merely afforded latitude to administrative bodies especially in cases where a party fails to invoke the right to hearing or is given the opportunity but opts not to avail of it. In the landmark case of Ang Tibay, the Court explained that administrative bodies are free from a strict application of technical rules of procedure and are given sufficient leeway. In the said case, however, nothing was said that the freedom included the setting aside of a hearing but merely to allow matters which would ordinarily be incompetent or inadmissible in the usual judicial proceedings. In fact, the seminal words of Ang Tibay manifest a desire for administrative bodies to exhaust all possible means to ensure that the decision rendered be based on the accurate appreciation of facts. The Court reminded that administrative bodies have the active duty to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. As such, it would be more in keeping with administrative due process that the conduct of a hearing be the general rule rather than the exception. The observance of a formal hearing in ·administrative tribunal or bodies other than judicial is not novel. In Perez v. Philippine Telegraph and Telephone Company, 33 the Court opined that in illegal dismissal cases, a formal hearing or conference becomes mandatory when requested by the employee in writing, or substantial evidentiary disputes exists, or a company rule or practice requires it, or when similar circumstances justify it. In Jason v. Executive Secretary Torres (Joson),34 the Court ruled that the respondent was denied due process after he was deprived of the right to a formal investigation with the opportunity to face the witnesses against him, to wit: The rejection of petitioner’s right to a formal investigation denied him procedural due process. Section 5 of A.O. No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider whether they desire a formal investigation. This provision does not give the Investigating Authority the discretion to determine whether a formal investigation would be conducted. The records show that petitioner filed a motion for formal investigation. As respondent, he is accorded several rights under the law, to wit: xxxx

Petitioner's right to a formal investigation was not satisfied when the complaint against him was decided on the basis of position papers. There is nothing in the Local Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that provide that administrative cases against elective local officials can be decided on the basis of position papers. A.O. No. 23 states that the Investigating Authority may require the parties to submit their respective memoranda but this is only after formal investigation and hearing. A.O. No. 23 does not authorize the Investigating Authority to dispense with a hearing especially in cases involving allegations of fact which are not only in contrast but contradictory to each other. These contradictions are best settled by allowing the examination and cross-examination of witnesses. Position papers are often-times prepared with the assistance of lawyers and their artful preparation can make the discovery of truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal investigation applies to appointive officials and employees. Administrative disciplinary proceedings against elective government officials are not exactly similar to those against appointive officials. In fact, the provisions that apply to elective local officials are separate and distinct from appointive government officers and employees. This can be gleaned from the Local Government Code itself. 35 (emphases and underlining supplied) xxxx Under the P AGC rules of procedure, it is crystal clear that the conduct of clarificatory hearings is discretionary. Nevertheless, in the event that it finds the necessity to conduct one, there are rules to be followed. One, the parties are to be notified of the clarificatory hearings. Two, the parties shall be afforded the opportunity to be present in the hearings without the right to examine witnesses. They, however, may ask questions and elicit answers from the opposing party coursed through the P AGC. To reiterate, due process is a malleable concept anchored on fairness and equity. The due process requirement before administrative bodies are not as strict compared to judicial tribunals in that it suffices that a party is given a reasonable opportunity to be heard. Nevertheless, such "reasonable opportunity" should not be confined to the mere submission of position papers and/or affidavits and the parties must be given the opportunity to examine the witnesses against them. The right to a hearing is a right which may be invoked by the parties to thresh out substantial factual issues. It becomes even more imperative when the rules itself of the administrative body provides for one. While the absence of a formal hearing does not necessarily result in the deprivation of due process, it should be acceptable only when the party does not invoke the said right or waives the same. The Court finds that Saunar was not treated fairly in the proceedings before the P AGC. He was deprived of the opportunity to appear in all clarificatory hearings

since he was not notified of the clarificatory hearing attended by an NBI official. Saunar was thus denied the chance to propound questions through the P AGC against the opposing parties, when the rules of the P AGC itself granted Saunar the right to be present during clarificatory hearings and the chance to ask questions against the opposing party. Even assuming that Saunar was not deprived of due process, we still find merit in reversing his dismissal from the government service. Gross neglect of duty negated by intent of the government employee concerned It is true that the dropping from the rolls as a result of AWOL is not disciplinary in nature and does not result in the forfeiture of benefits or disqualification from reemployment in the government.36 Nevertheless, being on AWOL may constitute other administrative offenses, which may result in the dismissal of the erring employees and a forfeiture of retirement benefits.37 In the case at bar, Saunar was charged with the administrative offense of gross neglect of duty in view of his prolonged absence from work. The OP found Saunar guilty of Gross Neglect of Duty and of violating Section 3(e) of R.A. No. 3019 because he was on AWOL from March 2005 to May 2006. He, however, bewails that from the time we was directed to report to the DDROS, he was never assigned a particular duty or responsibility. As such, Saunar argues that he cannot be guilty of gross neglect of duty because there was no "duty" to speak of. In addition, he assails that he had made himself readily available because he stayed in establishments near the NBI. Gross Neglect of Duty, as an administrative offense, has been jurisprudentially defined. It refers to negligence characterized by the glaring want of care; by acting or omitting to act in a situation where there is a duty to act, not inadvertently, but willfully and intentionally; or by acting with a conscious indifference to consequences with respect to other persons who may be affected.38 When Saunar was relieved as regional director of Western Mindanao and was ordered to report to the DDROS, he was obligated to report to the said office. He, however, was not assigned any specific task or duty and was merely advised to make himself readily available. Saunar often stayed in establishments near the NBI because he was also not provided a specific station or office. The same, nonetheless, does not establish that he willfully and intentionally neglected his duties especially since every time he was required to attend court hearings through special orders issued by the NBI, he would do so. Clearly, Saunar never manifested any intention to neglect or abandon his duties as an NBI official as he remained compliant with the lawful orders given to him. In addition, when he

received the order reassigning him as the regional director for the NBI Bicol Office, he also obeyed the same. Saunar’s continued compliance with the special orders given to him by his superiors to attend court hearings negate the charge of gross neglect of duty as it evinces a desire to fulfil the duties and responsibilities specifically assigned to him. The Office of the Solicitor General (OSG), however, argues that Saunar’s attendance at several court hearings pursuant to special orders does not exculpate him from the charge of gross neglect of duty. As highlighted by the OSG, the certificate of appearances Saunar presented account only for fourteen (14) days.39 Notwithstanding, Saunar’s conduct neither constitutes a violation of Section 3(e) of R.A. No. 3019. In order to be liable for violating the said provision, the following elements must concur: (a) the accused must be a public officer discharging administrative, judicial or official functions; (b) he must have acted with manifest partiality, evident bad faith or inexcusable negligence; and (c) that his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.40 As discussed above, Saunar’s action was not tantamount to inexcusable or gross negligence considering that there was no intention to abandon his duty as an NBI officer. Illegally dismissed government employees entitled to full back wages and retirement benefits On 11 August 2014, Saunar reached the compulsory age of retirement from government service.41 In view of Saunar’s retirement, reinstatement to his previous position had become impossible. Thus, the only recourse left is to grant monetary benefits to which illegally dismissed government employees are entitled. In Campol v. Balao-as, 42 the Court extensively expounded the rationale behind the grant of full back wages to illegally dismissed employees, to wit: An employee of the civil service who is invalidly dismissed is entitled to the payment of backwages. While this right is not disputed, there have been variations in our jurisprudence as to the proper fixing of the amount of backwages that should be awarded in these cases. We take this opportunity to clarify the doctrine on this matter. Ginson and Regis also involved the question of the proper fixing of backwages. Both cases awarded backwages but limited it to a period of five years. Ginson does not provide for an exhaustive explanation for this five-year cap. Regis, on

the other hand, cites Cristobal v. Melchor, Balquidra v. CFI of Capiz, Branch II, 32 Laganapan v. Asedillo, Antiporda v. Ticao, and San Luis v. Court of Appeals, in support of its ruling. We note that these cases also do not clearly explain why there must be a cap for the award of backwages, with the exception of Cristobal. In Cristobal, a 1977 case, we held that the award of backwages should be for a fixed period of five years, applying by analogy the then prevailing doctrine in labor law involving employees who suffered unfair labor practice. We highlight that this rule has been rendered obsolete by virtue of Republic Act No. 6175 which amended the Labor Code. Under the Labor Code, employees illegally dismissed are entitled to the payment of backwages from the time his or her compensation was withheld up to the time of his or her actual reinstatement. In 2005, our jurisprudence on backwages for illegally dismissed employees of the civil service veered away from the ruling in Cristobal. Thus, in Civil Service Commission v. Gentallan, we categorically declaredAn illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of her illegal dismissal up to her reinstatement. This is only fair and just because an employee who is reinstated after having been illegally dismissed is considered as not having left her office and should be given the corresponding compensation at the time of her reinstatement. We repeated this ruling in the 2005 case Batangas State University v. Bonifacio, in the 2007 case Ramagos v. Metro Cebu Water District, and in the 2010 case Civil Service Commission v. Magnaye, Jr. Thus, the Decision, in refusing to award backwages from Campol’s dismissal until his actual reinstatement, must be reversed. There is no legal nor jurisprudential basis for this ruling. An employee of the civil service who is ordered reinstated is also entitled to the full payment of his or her backwages during the entire period of time that he or she was wrongfully prevented from performing the duties of his or her position and from enjoying its benefits. This is necessarily so because, in the eyes of the law, the employee never truly left the office. Fixing the backwages to five years or to the period of time until the employee found a new employment is not a full recompense for the damage done by the illegal dismissal of an employee. Worse, it effectively punishes an employee for being dismissed without his or her fault. In cases like this, the twin award of reinstatement and payment of full backwages are dictated by the constitutional mandate to protect civil service employees' right to security of tenure. Anything less than this falls short of the justice due to government employees unfairly removed from office. This is the prevailing doctrine and should be applied in Campol’s case.

This entitlement to full backwages also means that there is no need to deduct Campol’s earnings from his employment with PAO from the award. The right to receive full backwages means exactly this - that it corresponds to Campol’s salary at the time of his dismissal until his reinstatement. Any income he may have obtained during the litigation of the case shall not be deducted from this amount. This is consistent with our ruling that an employee illegally dismissed has the right to live and to find employment elsewhere during the pendency of the case. At the same time, an employer who illegally dismisses an employee has the obligation to pay him or her what he or she should have received had the illegal act not be done. It is an employer's price or penalty for illegally dismissing an employee. xxxx We rule that employees in the civil service should be accorded this same right. It is only by imposing this rule that we will be able to uphold the constitutional right to security of tenure with full force and effect. Through this, those who possess the power to dismiss employees in the civil service will be reminded to be more circumspect in exercising their authority as a breach of an employee's right to security of tenure will lead to the full application of law and jurisprudence to ensure that the employee is reinstated and paid complete backwages. (emphasis supplied) As it stands, Saunar should have been entitled to full back wages from the time he was illegally dismissed until his reinstatement. In view of his retirement, however, reinstatement is no longer feasible. As such, the back wages should be computed from the time of his illegal dismissal up to his compulsory retirement. 43 In addition, Saunar is entitled to receive the retirement benefits he should have received if he were not illegally dismissed. WHEREFORE, the petition is GRANTED. The 20 October 2008 Decision of the Court of Appeals in CA-G.R. SP No. 100157 is REVERSED and SET ASIDE. Petitioner Carlos R. Saunar is entitled to full back wages from the time of his illegal dismissal until his retirement and to receive his retirement benefits. SO ORDERED. SAMUEL R. MARTIRES Associate Justice Footnotes *On 1

Official Leave

Rollo, pp. 8-19.

2

Id. at 21-22.

3

Id. at 168-172; issued by Executive Secretary Eduardo R. Ermita.

4

Id. at 34-36.

5

Id. at 226.

6

Id. at 38-39.

7

Id. at 225.

8

Id. at 41-44.

9

Id.at51-52.

10

Id. at 172.

11

Id. at 173-174.

12

Id. at. 18.

13

Id. at 66.

14

Smith, Bell and Co v. Natividad, 40 Phil. 136, 144-145 (1919).

15

Goldberg v. Kelly, 397 U.S. 267 (1970).

16

Arnettv. Kennedy, 416 U.S. 155 (1974).

17

Goldbergv. Kelly, supra note 15 at 269.

18

Id.

19

Arnett v. Kennedy, supra note 16 at 164.

20

424 U.S. 341-342, 349 (1976).

21

Citations omitted.

22

White Light Corporation v. City of Manila, 596 Phil. 444, 461 (2009). 23

Bernas, The 1987 Constitution of the Republic of the Philippiness: A Commentary (2003), p. 114.

24

69 Phil. 635 (1940).

25

Id. at 641-644.

26

62 Phil. 106 (1935).

27

70 Phil. 539 (1940).

28

182 Phil. 215 (1979).

29

Id. at 220-221.

30

362 Phil. 383 (1999).

31

Id. at 389.

32

Mateo v. Romulo, 799 Phil. 569 (2016); Samalio v. Court of Appeals, 494 Phil. 456 (2005); Artezuela v. Maderazo, 431 Phil. 15 (2002), citing Arboleda v. National Labor Relations Commission, id at 141, and Padilla v. Sto. Tomas, 243 SCRA 155. 33

602 Phil. 522, 542 (2009).

34

352 Phil. 888 (1998).

35

Id. at 923-925.

36

Municipality of Butig, Lanao de/ Sur v. Court of Appeals, 513 Phil. 217, 235 (2005). 37

Masadao, Jr. v. Glorioso, 345 Phil. 859, 864 (1997); Loyao v. Manatad, 387 Phil. 337, 344 (2000); Leave Division-0.A.S, Office of the Court Administrator v. Sarceno, 754 Phil. 1, 11 (2015) 38

Office of the Ombudsman v. Delos Reyes, Jr., 745 Phil. 366, 381 (2014). 39

Rollo, p. 484.

40

Consignav. People, 731Phil.108, 123-124 (2014).

41

Rollo, p. 637.

42

G.R. No. 197634, 28 November 2016.

43

Paz v. Northern Tobacco Redrying Co, Inc., 754 Phil. 251 (2015).

PPC v CA

SECOND DIVISION G.R. No. 173590

December 9, 2013

PHILIPPINE POSTAL CORPORATION, Petitioner, vs. COURT OF APPEALS and CRISANTO G. DE GUZMAN, Respondents. DECISION PERLAS-BERNABE, J.: Assailed in this petition for review on certiorari1 are the Decision2 dated April 4, 2006 July 19, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 88891 which reversed and set aside the Resolutions dated November 23, 2004 4 and January 6, 20055 of petitioner Philippine Postal Corporation (PPC), through its then Postmaster General and Chief Executive Officer (CEO) Dario C. Rama (PG Rama), finding that the latter gravely abused its discretion when it revived the administrative charges against respondent Crisanto G. De Guzman (De Guzman) despite their previous dismissal. The Facts Sometime in 1988, De Guzman, then a Postal Inspector at the Postal Services Office,6 was investigated by Regional Postal Inspector Atty. Raul Q. Buensalida (Atty. Buensalida) in view of an anonymous complaint charging him of dishonesty and conduct grossly prejudicial to the best interest of the service.7 As a result thereof, Atty. Buensalid are commended8 that De Guzman be formally charged with twelve (12) counts of the same offenses and eventually be relieved from his post to protect the employees and witnesses from harassment. Since the Postal Services Office was then a line-agency of the Department of Transportation and Communication(DOTC), Atty. Buensalida’s investigation report was forwarded to the said department’s Investigation Security and Law Enforcement Staff (ISLES) for further evaluation and approval. Contrary to the findings of Atty. Buensalida, however, the ISLES, through a Memorandum9dated February 26, 1990prepared by Director Antonio V. Reyes (Dir. Reyes), recommended that De Guzman be exonerated from the charges against him due to lack of merit. The said recommendation was later approved by DOTC Assistant Secretary Tagumpay R. Jardiniano (Asec. Jardiniano) in a Memorandum10 dated May 15, 1990.

On February 6, 1992, Republic Act No. (RA)7354,11 otherwise known as the ― ”Postal Service Act of 1992,” was passed. Pursuant to this law, the Postal Services Office under the DOTC was abolished, and all its powers, duties, and rights were transferred to the PPC.12 Likewise, officials and employees of the Postal Services Office were absorbed by the PPC.13 Subsequently, or on July 16, 1993, De Guzman, who had by then become Chief Postal Service Officer, was formally charged14 by the PPC, through Postmaster General Eduardo P. Pilapil(PG Pilapil), for the same acts of ―dishonesty, gross violation of regulations, and conduct grossly prejudicial to the best interest of the service, and the Anti-graft law, committed as follows”: Investigation disclosed that while you were designated as Acting District Postal Inspector with assignment at South Cotabato District, Postal Region XI, Davao City, you personally made unauthorized deductions and/or cuttings from the ten (10%) percent salary differential for the months of January-March, 1988,when you paid each of the employees of the post office at Surallah, South Cotabato, on the last week of April 1988, and you intentionally failed to give to Postmaster Juanito D. Dimaup, of the said post office his differential amounting to ₱453.91, Philippine currency; that you demanded and required Letter Carrier Benjamin Salero, of the aforestated post office to give fifty (₱50.00) pesos out of the aforesaid differential; that you personally demanded, take away and encashed the salary differential check No. 008695317 in the total amount of ₱1,585.67, Philippine currency, of Postmaster Benjamin C. Charlon, of the post office at Lake Cebu, South Cotabato, for your own personal gain and benefit to the damage and prejudice of the said postmaster; that you personally demanded, required and received from Postmaster Peniculita B. Ledesma, of the post office of Sto. Niño, South Cotabato, the amount of ₱300.00, ₱200.00 and ₱100.00 for hazard pay, COLA differential and contribution to the affair "Araw ng Kartero and Christmas Party," respectively; that you personally demanded and required Letter Carrier Feliciano Bayubay, of the post office at General Santos City to give money in the amount of ₱1,000.00, Philippine Currency, as a condition precedent for his employment in this Corporation, and you again demanded and personally received from the said letter carrier the amount of ₱300.00 Philippine currency, as gift to the employees of the Civil Service Commission, Davao City to facilitate the release of Bayubay’s appointment; that you demanded and forced Postmaster Felipe Collamar, Jr.,of the post office at Maitum, South Cotabato to contribute and/or produce one (1) whole Bariles fish for shesami (sic), and you also required and received from the aforesaid postmaster the amount of ₱500.00 Philippine currency; that you demanded and required Postmaster Diosdado B. Delfin to give imported wine and/or ₱700.00, Philippine currency, for gift to the outgoing Regional Director Escalada; and that you failed to liquidate and return the substantial amount of excess contributionson April, 1987, June, 1987 and December, 1987,for Postal Convention at MSU, arrival of Postmaster General Banayo and Araw ng Kartero and Christmas Party, respectively, for your own

personal gain and benefit to the damage and prejudice of all the employees assigned at the aforementioned district. In a Decision15dated August 15, 1994, De Guzman was found guilty as charged and was dismissed from the service. Pertinently, its dispositive reads that ―”[i]n the interest of the service, it is directed that this decision be implemented immediately.”16 It appears, however, that the a fore-stated decision was not implemented until five (5) years later when Regional Director Mama S. Lalanto (Dir. Lalanto) issued a Memorandum17 dated August 17, 1999 for this purpose. De Guzman lost no time in filing a motion for reconsideration,18 claiming that: (a) the decision sought to be implemented was recalled on August 29, 1994 by PG Pilapil himself; and (b)since the decision had been dormant for more than five (5)years, it may not be revived without filing another formal charge. The motion was, however, denied in a Resolution19 dated May 14, 2003, pointing out that De Guzman failed to produce a copy of the alleged recall order even if he had been directed to do so. Undaunted, De Guzman filed a second motion for reconsideration, which was resolved20 on June 2, 2003 in his favor in that: (a) the Resolution dated May 14, 2003 denying De Guzman’s first motion for Reconsideration was recalled; and (b) a formal hearing of the case was ordered to be conducted as soon as possible. After due hearing, the PPC, through PG Rama, issued a Resolution21 dated November 23, 2004, finding De Guzman guilty of the charges against him and consequently dismissing him from the service. It was emphasized therein that when De Guzman was formally charged on July 16, 1993, the complainant was the PPC, which had its own charter and was no longer under the DOTC. Thus, the ISLES Memorandum dated February 26, 1990 prepared by Dir. Reyes which endorsed the exoneration of De Guzman and the dismissal of the complaints against him was merely recommendatory. As such, the filing of the formal charge on July 16, 1993 was an obvious rejection of said recommendation.22 De Guzman’s motion for reconsideration was denied initially in a Resolution 23 dated January 6, 2005, but the motion was, at the same time, considered as an appeal to the PPC Board of Directors (Board).24 The Board, however, required PG Rama to rule on the motion. Thus, in a Resolution25 dated May 10, 2005, PG Rama pointed out that, being the third motion for reconsideration filed by De Guzman, the same was in gross violation of the rules of procedure recognized by the PPC, as well as of the Civil Service Commission (CSC), which both allowed only one (1) such motion to be entertained.26 It was further held that res judicata was unavailing as the decision exonerating De Guzman was ―”only a ruling after a fact-finding investigation.” Hence, the same could not be considered as a dismissal on the merits but rather, a dismissal made by an investigative body which was not clothed with judicial or quasi-judicial power.27

Meanwhile, before the issuance of the Resolution dated May 10, 2005, De Guzman elevated his case on March 12, 200528 to the CA via a special civil action for certiorari and mandamus,29 docketed as CA-G.R. SP No. 88891, imputing grave abuse of discretion amounting to lack or excess of jurisdiction in that: (a) the case against him was a mere rehash of the previous complaint already dismissed by the DOTC, and therefore, a clear violation of the rule on res judicata; (b) the assailed PPC Resolutions did not consider the evidences submitted by De Guzman; (c) the uncorroborated, unsubstantiated and contradictory statements contained in the affidavits presented became the bases of the assailed Resolutions; (d) the Resolution dated November 23, 2004 affirmed a non-existent decision; (e) Atty. Buensalida was not a credible witness and his testimony bore no probative value; and(f) the motion for reconsideration filed by De Guzman of the Resolution dated November 23, 2004 is not the third motion for reconsideration filed by him. On June 10, 2005, De Guzman appealed30 the Resolution dated May 10, 2005 before the PPC Board, which resolution was allegedly received by De Guzman on May 26, 2005. Almost a year later, the Board issued a Resolution 31 dated May 25, 2006,denying the appeal and affirming with finality the Decision dated August 15, 1994 and the Resolution dated May 14, 2003. The motion for reconsideration subsequently filed by De Guzman was likewise denied in aResolution32 dated June 29, 2006. On April 4, 2006, the CA rendered a Decision33 in CA-G.R. SP No. 88891, reversing the PPC Resolutions dated November 23, 2004 and January 6, 2005, respectively. It held that the revival of the case against De Guzman constituted grave abuse of discretion considering the clear and unequivocal content of the Memorandum dated May 15, 1990 duly signed by Asec. Jardiniano that the complaint against De Guzman was already dismissed. Aggrieved, PPC moved for reconsideration which was, however, denied in a Resolution34 dated July 19, 2006, hence, the instant petition. Meanwhile, on July 26, 2006, De Guzman filed an appeal of the PPC Board’s Resolutions dated May 25, 2006 and June 29, 2006 with the CSC35 which was, however, dismissedin Resolution No. 08081536 dated May 6, 2008. The CSC equally denied De Guzman’s motion for reconsideration there from in Resolution No. 09007737 dated January 14, 2009. The Issues Before the Court The essential issues for the Court’s resolution are whether: (a) De Guzman unjustifiably failed to exhaust the administrative remedies available to him; (b) De Guzman engaged inforum-shopping; and (c) the investigation conducted by the DOTC, through the ISLES, bars the filing of the subsequent charges by PPC. The Court’s Ruling

The petition is meritorious. A. Exhaustion of administrative remedies. The thrust of the rule on exhaustion of administrative remedies is that the courts must allow the administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. It is presumed that an administrative agency, if afforded an opportunity to pass upon a matter, will decide the same correctly, or correct any previous error committed in its forum. Furthermore, reasons of law, comity and convenience prevent the courts from entertaining cases proper for determination by administrative agencies. Hence, premature resort to the courts necessarily becomes fatal to the cause of action of the petitioner.38 PPC claims that De Guzman failed to subscribe to the rule on exhaustion of administrative remedies since he opted to file a premature certiorari case before the CA instead of filing an appeal with the PPC Board, or of an appeal to the CSC, which are adequate remedies under the law.39 The Court agrees with PPC’s submission. Under Section 21(d) of RA7354, the removal by the Postmaster General of PPC officials and employees below the rank of Assistant Postmaster General may be appealed to the Board of the PPC, viz.: Sec.21.Powers and Functions of the Postmaster General. — as the Chief Executive Officer, the Postmaster General shall have the following powers and functions: xxxx (d) to appoint, promote, assign, reassign, transfer and remove personnel below the ranks of Assistant Postmaster General: Provided, That in the case of removal of officials and employees, the same may be appealed to the Board; xxxx This remedy of appeal to the Board is reiterated in Section 2(a), Rule II of the Disciplinary Rules and Procedures of the PPC, which providesfurther that the decision of the Board is, in turn, appeal able to the CSC, viz.: Section2. DISCIPLINARY JURISDICTION. – (a) The Board of Directors shall decide upon appeal the decision of the Postmaster General removing officials and employees from the service. (R.A. 7354, Sec. 21 (d)). The decision of the Board of Directors is appeal able to the Civil Service Commission. It is wellestablished that the CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and agencies, including government-

owned or controlled corporations with original charters, and, as such, is the sole arbiter of controversies relating to the civil service.40 The PPC, created under RA7354, is a government-owned and controlled corporation with an original charter. Thus, being an employee of the PPC, De Guzman should have, after availing of the remedy of appeal before the PPC Board, sought further recourse before the CSC. Records, however, disclose that while De Guzman filed on June 10, 2005 a notice of appeal41 to the PPC Board and subsequently appealed the latter’s ruling to the CSC on July 26, 2006, the sewere all after he challenged the PPC Resolution dated November 23, 2004 (wherein he was adjudged guilty of the charges against him and consequently dismissed from the service) in a petition for certiorari and mandamus before the CA(docketed as CA-G.R. SP No. 88891). That the subject of De Guzman’s appeal to the Board was not the Resolution dated November 23, 2004 but the Resolution dated May 10, 2005 denying the motion for reconsideration of the first - mentioned resolution is of no moment. In Alma Jose v. Javellana,42 the Court ruled that an appeal from an order denying a motion for reconsideration of a final order or judgment is effectively an appeal from the final order or judgment itself. 43 Thus, finding no cogent explanation on DeGuzman’s endor any justifiable reason for his premature resort to a petition for certiorari and mandamus before the CA, the Court holds that he failed to adhere to the rule on exhaustion of administrative remedies which should have warranted the dismissal of said petition. B. Forum-shopping. PPC further submits that De Guzman violated the rule on forum-shopping since he still appealed the order of his dismissal before the PPC Board, notwithstanding the pendency of his petition for certiorari before the CA identically contesting the same.44 The Court also concurs with PPC on this point. Aside from violating the rule on exhaustion of administrative remedies, De Guzman was also guilty of forum-shopping by pursuing two (2) separate remedies –petition for certiorari and appeal –that have long been held to be mutually exclusive, and not alternative or cumulative remedies. 45 Evidently, the ultimate reliefsought by said remedies whichDe Guzmanfiled only within a few months from each other46 is one and the same – the setting aside of the resolution dismissing him from the service. As illumined in the case of Sps. Zosa v. Judge Estrella,47 where in several precedents have been cited on the subject matter:48 The petitions are denied. The present controversy is on all fours with Young v. Sy, in which we ruled that the successive filing of a notice of appeal and a petition for certiorari both to assail the trial court’s dismissal order for non-suit constitutes forum shopping. Thus,

Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively, for the purpose of obtaining a favorable judgment. There is forum shopping where there exist: (a) identity of parties, or at least suchparties as represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful would amount to res judicata. Ineluctably, the petitioner, by filing an ordinary appeal and a petition for certiorari with the CA, engaged in forum shopping. When the petitioner commenced the appeal, only four months had elapsed prior to her filing with the CA the Petition for Certiorari under Rule 65 and which eventually came up to this Court by way of the instant Petition (re: Non-Suit). The elements of lit is pendentia are present between the two suits. As the CA, through its Thirteenth Division, correctly noted, both suits are founded on exactly the same facts and refer to the same subject matter – the RTC Orders which dismissed Civil Case No. SP-5703 (2000) for failure to prosecute. In both cases, the petitioner is seeking the reversal of the RTC orders. The parties, the rights asserted, the issues professed, and the reliefs prayed for, are all the same. It is evident that the judgment of one forum may amount to res judicata in the other. xxxx The remedies of appeal and certiorari under Rule 65 are mutually exclusive and not alternative or cumulative. This is a firm judicial policy. The petitioner cannot hedge her case by wagering two or more appeals, and, in the event that the ordinary appeal lags significantly behind the others, she cannot post facto validate this circumstance as a demonstration that the ordinary appeal had not been speedy or adequate enough, in order to justify the recourse to Rule 65. This practice, if adopted, would sanction the filing of multiple suits in multiple fora, where each one, as the petitioner couches it, becomes a ―precautionary measure” for the rest, thereby increasing the chances of a favorable decision. This is the very evil that the proscription on forum shopping seeks to put right. In Guaranteed Hotels, Inc. v. Baltao, the Court stated that the grave evil sought to be avoided by the rule against forum shopping is the rendition by two competent tribunals of two separate and contradictory decisions. Unscrupulous party litigants, taking advantage of a variety of competent tribunals, may repeatedly try their luck in several different fora until a favorable result is reached. To avoid the resultant confusion, the Court adheres strictly to the rules against forum shopping, and any violation of these rules results in the dismissal of the case. Thus, the CA correctly dismissed the petition for certiorari and the petition for review (G.R. No. 157745) filed with this Court must be denied for lack of merit.

We also made the same ruling in Candido v. Camacho, when the respondent therein assailed identical court orders through both an appeal and a petition for an extraordinary writ. Here, petitioners questioned the June 26, 2000 Order, the August 21, 2000 Clarificatory Order, and the November 23, 2000 Omnibus Order of the RTC via ordinary appeal (CA-G.R. CV No. 69892) and through a petition for certiorari(CAG.R. SP No. 62915) in different divisions of the same court. The actions were filed with a month’s interval from each one. Certainly, petitioners were seeking to obtain the same relief in two different divisions with the end in view of endorsing which ever proceeding would yield favorable consequences. Thus, following settled jurisprudence, both the appeal and the certiorari petitions should be dismissed.(Emphases supplied; citations omitted) Similar thereto, the very evil that the prohibition on forum-shopping was seeking to prevent – conflicting decisions rendered by two (2) different tribunals–resulted from De Guzman’s abuse of the processes. Since De Guzman’s appeal before the PPC Board was denied in its Resolutions49dated May 25, 2006 and June 29, 2006, De Guzmans ought the review of said resolutions before the CSC where he raised yet again the defense of res judicata. Nonetheless, the CSC, in its Resolution No. 08081550 dated May 6, 2008, affirmed De Guzman’s dismissal, affirming "the Resolutions of the PPC Board of Directors dismissing De Guzman from the service for Dishonesty, Gross Violation of Regulations, and Conduct Grossly Prejudicial to the Best Interest of the Service."51 De Guzman’s motion for reconsideration of the aforesaid Resolution was similarly denied by the CSC in its Resolution No. 09007752 dated January 14, 2009. On the other hand, the petition for certiorari, which contained De Guzman’s prayer for the reversal of Resolutions dated November 23, 2004 and January 6, 2005 dismissing him from the service, was granted by the CA much earlier on April 4, 2006. It should be pointed out that De Guzman was bound by his certification53 with the CA that if he ―should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency,” he ―undertake[s]to report that fact within five (5) days therefrom to [the]Honorable Court.”54 Nothing, however, appears on record that De Guzman had informed the CA of his subsequent filing of a notice of appeal before the PPC from the Resolution dated May 10, 2005. By failing to do so, De Guzman committed a violation of his certification against forum-shopping with the CA, which has been held to be a ground for dismissal of an action distinct from forum-shopping itself.55 Moreover, De Guzman’s contention56 that the filing of the notice of appeal from the said Resolution was only "taken as a matter of precaution" 57 cannot extricate him from the effects of forum-shopping. He was fully aware when he filed CAG.R. SP No. 88891 that PG Ramahad forwarded the records of the case to the PPC Board for purposes of appeal.58 Yet, he decided to bypass the

administrative machinery. And this was not the first time he did so. In his Comment to the instant petition, De Guzman claimed59 that in response to the Memorandum60 dated August 17, 1999 issued by Dir. Lalanto implementing his dismissal from service, he not only filed a motion for reconsideration but he likewise challenged the actions of the PPC before the Regional Trial Court of Manila through a petition for mandamus docketed as Case No. 99-95442. Even when CA-G.R. SP No. 88891 was decided in De Guzman’s favor on April 4, 2006, and PPC’s motion for reconsideration was denied on July 19, 2006, De Guzman nonetheless filed on July 26, 2006 an appeal before the CSC from the denial by the PPC Board of his Notice of Appeal dated June 7, 2005 as pointed out in CSC Resolution No. 090077.61 While