Case digests on Art XI

Fast Facts

Raul Gonzales forwarded an anonymous letter by “Concerned Employees of the Supreme Court” to Justice Fernan. Theletter was addressed to Gonzales referring to charges for disbarment brought by Miguel Cuenco against Justice Fernan andasking “to do something about this.” The action against Fernan was filed in the Tanodbayan. Tanodbayan – special prosecutor like a fiscal; ombudsman.Administrative Case No. 3135Resolution dated February 1988 entitled “Miguel Cuenco v Honorable Marcelo B. Fernan” in which Resolution, the Courtresolved to dismiss the charges made by Cuenco against Fernan for utter lack of merit.

The Court resolved to requireCuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations againstFernan.Important principles of AC 3135Article 8, Section 7 (1987 Constitution). A public officer who under the Constitution is required to be a Member of thePhilippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer.Lecaroz v Sandiganbayan. Proscribes the removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally whileholding his office with an offense that carries the penalty of removal from office, would be violative of the clear mandate of the fundamental law.Impeachment first, before criminal and other actions.

There is fundamental procedural requirement that must be observed before such liability may be determined and enforced. The Court is not saying that a Member of the SC is absolutely immune from disbarment and criminal actions against him. It is just that, this member must first be removed from office viaimpeachment proceedings before other actions will prosper against him. Should the tenure of the SC Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any misbehavior that may be proven against him.Reason for ruling.

Without the rule, Members of the SC would be vulnerable to all manner of chargeswhich might be brought against them by unsuccessful litigants or their lawyers or by other parties who,for any number of reasons might seek to affect the exercise of judicial authority by the Court. Can judges be disbarred during their term? Yes. The only ones who could be disbarred are the impeachable officers.

Facts: Gonzales was the Tanodbayan or Special Prosecutor. He forwarded a letter-complaint to Justice Fernan. The letter was said to be from concerned employees of the SC (an anonymous letter). The letter was originally addressed to Gonzales referring to thecharges for disbarment sought by Mr. Miguel Cuenco against Justice Fernan, and asking him (Gonzales) to do something about it. The Supreme Court furnished a copy to Gonzales, the per curiam Resolution of the SC, dismissing the charges made by Cuenco against Justice Fernan for lack of merit. In that resolution, Cuenco was asked to show cause why he should not be held administratively liable for making serious accusations against Fernan.

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

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

The above provision proscribes removal from office by any other method. Otherwise, to allow such public officer who may be removed solely by impeachment to be charged criminally while holding his office with an office that carries the penalty of removal from office, would be violative of the clear mandate of the Constitution.

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

The court is not saying that the members and other constitutional officer are entitled to immunity from liability. What the court is merely saying is that there is a fundamental procedural requirement that must be observed before such liability ma be determined. A member of the SC must first be removed from office, via the constitutional route of impeachment, and then only may he be held liable either criminally or administratively (that is, disbarment), for any wrong or misbehavior in appropriate proceedings.

The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez, “Tanodbayan/Special; Prosecutor” forwarding to Mr. Justice Marcelo B. Fernan a “letter-complaint, dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court,” together with a telegram of Miguel Cuenco, for “comment within ten (10) days from receipt hereof.” Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications of policy raised by said 1st Indorsement.

The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by “Concerned Employees of the Supreme Court” addressed to Hon. Raul M. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr. Gonzalez “to do something about this.” The second attachment is a copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any “intervention” by Mr. Raul Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez “to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan’s intervention. The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled “Miguel Cuenco v. Honorable Marcelo B. Fernan” in which Resolution, the Court Resolved to dismiss the charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of merit.

In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with finality Mr Cuenco’s Motion for Reconsideration. It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms.

A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms: There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution).

To grant a complaint for disbarment of a Member of the Court during the Member’s incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied) This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan, 1 the Court said: The broad power of the New Constitution vests the respondent court with jurisdiction over “public officers and employees, including those in government-owned or controlled corporations.” There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides: Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption.”

Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law. Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that “judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law.

The above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp.
465-466).”

The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action “in accordance with law” may not prosper. 2 The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are substantially reproduced in Article XI of the 1987 Constitution: Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Sec. 3 xxx xxx xxx

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced.

A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court. It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings. The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M. Gonzales and Mr Miguel Cuenco.

Case Digest of Estrada vs. Desierto (March 2, 2001)

The court looked at the events that occurred prior and immediately after the oath-taking of respondent Gloria Macapagal-Arroyo (to be referred to in the rest of the digest as GMA) as president of the Republic of the Philippines (RP). On 11 May 1998, petitioner Joseph E. Estrada (will subsequently be referred to as Erap) was elected as President of RP with GMA as his vice-President. By the late 2000, word spread of Erap’s alleged involvement in jueteng and his receiving jueteng money as “Jose Pidal”. Erap quickly loses popularity among different social groups and public officials, even high ranking members of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), started defecting from his agendas. And because of the jueteng scandal, an impeachment proceeding started on 7 December 2000.

Upon its resumption in January, however, a vote of 11-10 against the opening of the second envelope which allegedly contained evidence showing Erap as Jose Velarde with P3.3billion in secret bank account cut short the impeachment trial as prosecutors walked out and joined the rallying of people in the streets of Manila. Amidst the pressure, Erap proposed snap elections, which he is not to run as candidate, to regain stability in the country but such a move did little to quell the “wave” against him. Two rounds of negotiations were held between Erap’s camp and that of GMA in the early hours of 20 January 2001 and at 12nn of the same day, GMA took her oath as RP president. Both houses of Congress acknowledged her presidency, as well as the international community. Erap, on the other hand, left Malacanang and is now faced with legal action against him by the Office of the Ombudsman among other things.

While the 1987 EDSA People Power Movement is considered by the Court as a non-justiciable event, EDSA 2, as it has come to be known, is very much different from the 1987 EDSA People Power Movement (EDSA 1). EDSA 1 is extra-constitutional, hence, there would be no legal basis if such an event was put to the courts. EDSA 2, on the other hand, is intra-constitutional as it is based on the constitutionally protected rights of freedom of speech and assembly. Even in GMA’s oath-taking ceremony, she categorically swore to preserve and defend the 1987 Constitution. 2) The Court used a “Totality Test” as an “authoritative window” to ascertain petitioner Estrada’s state of mind on this issue.

On reading the then Executive Secretary Angara’s diary published in the Philippine Daily Inquirer, the Court held that petitioner impliedly resigned because 1) he did not want to be a candidate in the proposed snap elections, 2) he did not object to Senator Pimentel’s “dignified exit” proposal, and 3) on Erap saying that he only had 5 days to a week left to stay in the Palace. Also, from what the court eventually calls his “resignation letter”, Erap 1) acknowledged GMA’s oath-taking as President, 2) he did not mention any intent on re-assuming his position as President, and 3) his gratitude in the letter is on a past opportunity he served as President. On his defense, Erap cites sec. 12 of Republic Act 3019 which states that a public officer cannot resign pending legal action, in this case the impeachment trial. A reading of history tells the Court that the intention of Congress in passing such provision is merely to prevent public officials from escaping liability to stop pending investigation. It does not apply to petitioner. 3) The law states that Congress has the sole authority to say whether a President is incapable of performing the duties required of him of his office.

Given the resolutions passed by Congress immediately after GMA’s oath-taking and the fact that both houses filed bills signed by GMA into law, the Court recognizes that petitioner’s inability to perform was permanent and also, the Court would have no jurisdiction to change the decision already done by Congress on his capacity as President. 4) Regarding immunity from suit, history shows us that the framers of the 1987 Constitution did not retain the 1973 Constitution provision on executive immunity. Also, the Impeachment court has become functus officio. It is, then, untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. 5) As for a prejudicial publicity, this would not apply to the present case.

Case law will tell us that a right to a fair trial and the free press are incompatible. They’re essentially unrelated. Also, since our justice system does not use the jury system, the judge, who is a learned and legally enlightened individual, cannot be easily manipulated by mere publicity. The Court also said that petitioner did not present enough evidence to show that the publicity given the trial has influenced the judge so as to render the judge unable to perform. Finally, the Court said that the cases against petitioner were still undergoing preliminary investigation, so the publicity of the case would really have no permanent effect on the judge and that the prosecutor should be more concerned with justice and less with prosecutuion.

Estrada Vs Desierto

Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. From the beginning of Erap’s term, he was plagued by problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Singson, a longtime friend of the Estrada, went on air and accused the Estrada, his family and friends of receiving millions of pesos from jueteng lords. The exposé immediately ignited reactions of rage. On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. January 20 turned to be the day of surrender.

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of the Presidency. After his fall from the pedestal of power, the Erap’s legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. ISSUE: Whether or not Arroyo is a legitimate (de jure) president. HELD: The SC holds that the resignation of Estrada cannot be doubted. It was confirmed by his leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation.

He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Estrada’s reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency.

The press release was petitioner’s valedictory, his final act of farewell. His presidency is now in the past tense. Even if Erap can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by this Court.

On July 22, 2002, the House of Representatives adopted a Resolution, sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice “to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).” On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint against Chief Justice Hilario G. Davide Jr. and seven Associate Justices of this Court for “culpable violation of the Constitution, betrayal of the public trust and other high crimes.” The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, and was referred to the House Committee.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was “sufficient in form,” but voted to dismiss the same on October 22, 2003 for being insufficient in substance. To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a “Resolution of Endorsement/Impeachment” signed by at least one-third (1/3) of all the Members of the House of Representatives.

In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period.

2.From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with “truly political questions.” From this clarification it is gathered that there are two species of political questions: (1) “truly political questions” and (2) those which “are not truly political questions.” Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature.

Francisco vs. House of Representatives

Facts: On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings, superseding the previous House Impeachment Rules approved by the 11th Congress. On 22 July 2002, the House of Representatives adopted a Resolution, which directed the Committee on Justice “to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF). On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices of the Supreme Court for “culpable violation of the Constitution, betrayal of the public trust and other high crimes.”

The complaint was endorsed by House Representatives, and was referred to the House Committee on Justice on 5 August 2003 in accordance with Section 3(2) of Article XI of the Constitution. The House Committee on Justice ruled on 13 October 2003 that the first impeachment complaint was “sufficient in form,” but voted to dismiss the same on 22 October 2003 for being insufficient in substance.

The following day or on 23 October 2003, the second impeachment complaint was filed with the Secretary General of the House by House Representatives against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. The second impeachment complaint was accompanied by a “Resolution of Endorsement/Impeachment” signed by at least 1/3 of all the Members of the House of Representatives. Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that “[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year.” Issue: Whether or not the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of filing of the petitions, no justiciable issue was presented before it.

Held: The court’s power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have “standing” to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.

This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. The Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of the judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it not at all the business of this Court to assert judicial dominance over the other two great branches of the government.

Political questions are “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government.” It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

Citing Chief Justice Concepcion, when he became a Constitutional Commissioner: “…The powers of government are generally considered divided into three branches: the Legislative, the Executive, and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice… courts of justice determine the limits of powers of the agencies and offices of the government as well as those of its officers.

The judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but also a duty to pass judgment on matters of this nature…” a duty which cannot be abdicated by the mere specter of the political law doctrine.

The determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits.

The Court held that it has no jurisdiction over the issue that goes into the merits of the second impeachment complaint. More importantly, any discussion of this would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation.

The HR on its 12th Congress adopted a different rule on impeachment from that of the 11th Congress. On June 22, 2002, the HR adopted a resolution to investigate the disbursement of funds of the JDF under Hilario Davide. In June 2, 2003, former President Estrada filed an impeachment complaint against Chief Justice Davide for culpable violation of the Constitution, betrayal of the public trust and other high crimes. The House Committee on Justice ruled that the impeachment complaint was “sufficient in form,”but voted to dismiss the same on October 22, 2003 for being insufficient in substance.

A day after dismissing the first impeachment complaint, a 2nd complaint was filed against Davide based on the investigation of fund disbursement of JDF under Davide. Petitions were filed to declare the 2nd impeachment unconstitutional for it violates the provision that no impeachment proceedings shall be initiated twice against the same official. Petitions also claim that the legislative inquiry into the administration by the Chief Justice of the JDF infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene and Comment, praying that “the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution.” In summary, petitioners plea for the SC to exercise the power of judicial review to determine the validity of the second impeachment complaint.

Power of judicial review is the power of the court to settle actual controversies involving rights which are legally demandable and enforceable. Judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. Separation of powers is not absolute. The SC is the final arbiter to determine if acts by the legislature and the executive is in violation of the Constitution. Moreover, the power of judicial review is expressly stated in the Constitution. *2nd Impeachment complaint against Chief Justice Davide is unconstitutional.

QuickGuide: Petitioner-Ombudsman challenges House Resolutions of Sept. 1 and 7, 2010 finding two impeachment complaints against the petitioner, simultaneously referred to the House Committee on Justice, sufficient in form and substance on grounds that she was denied due process and that the said resolutions violated the one-year bar rule on initiating impeachment proceedings for impeachable officers. Court dismissed the petition. Facts:

– INITIATIVE: Filing of impeachment complaint coupled with Congress’ taking initial action of said complaint (referral of the complaint to the Committee on Justice)

– IMPEACH: to file the case before the Senate – Rationale of the one-year bar: “that the purpose of the one-year bar is two-fold: 1)”to prevent undue or too frequent harassment; and 2) to allow the legislature to do its principal task [of] legislation,” “…that there should only be ONE CANDLE that is kindled in a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the candle.” (Gutierrez vs. HOR, 2011) Gutierrez vs. HR

Ma. Merceditas N. Gutierrez vs. The House Of Representatives Committee On Justice Carpio, Morales, J.:
Doctrine: x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. As pointed out in Francisco, the impeachment proceeding is not initiated “when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow.”

Facts: On July 22, 2010, private respondents Risa Hontiveros-Baraquel, et.al. (Baraquel group) filed an impeachment complaint against petitioner. On August 3, 2010, private respondents Renato Reyes et.al. (Reyes group) filed another impeachment complaint. Both impeachment complaints were endorsed by different Party-List Representatives. On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of the Committee on Rules, instructed the Deputy Secretary General for Operations to include the two complaints in the Order of Business, which was complied with by their inclusion in the Order of Business for the following day. On August 11, 2010 at 4:47 p.m., during its plenary session, the House of Representatives simultaneously referred both complaints to public respondent.

After hearing, public respondent, by Resolution of September 1, 2010, found both complaints sufficient in form, which complaints it considered to have been referred to it at exactly the same time. Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th Congress was published on September 2, 2010. On September 6, 2010, petitioner tried to file a motion to reconsider the September 1, 2010 Resolution of public respondent. Public respondent refused to accept the motion, however, for prematurity; instead, it advised petitioner to await the notice for her to file an answer to the complaints, drawing petitioner to furnish copies of her motion to each of the 55 members of public respondent. After hearing, public respondent, by Resolution of September 7, 2010, found the two complaints, which both allege culpable violation of the Constitution and betrayal of public trust, sufficient in substance.

The determination of the sufficiency of substance of the complaints by public respondent, which assumed hypothetically the truth of their allegations, hinged on the issue of whether valid judgment to impeach could be rendered thereon. Petitioner was served also on September 7, 2010 a notice directing her to file an answer to the complaints within 10 days. Issue: When is impeachment deemed initiated? (Does the present impeachment complaint violate the one-year bar rule under the Constitution?) Held: The one-year bar rule. Article XI, Section 3, paragraph (5) of the Constitution reads: “No impeachment proceedings shall be initiated against the same official more than once within a period of one year.” Petitioner reckons the start of the one-year bar from the filing of the first impeachment complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress. She posits that within one year from July 22, 2010, no second impeachment complaint may be accepted and referred to public respondent. Following petitioner’s line of reasoning, the verification of the complaint or the endorsement by a member of the House – steps done prior to the filing would already initiate the impeachment proceedings. Contrary to petitioner’s emphasis on impeachment complaint, what the Constitution mentions is impeachment “proceedings.” Her reliance on the singular tense of the word “complaint” to denote the limit prescribed by the Constitution goes against the basic rule of statutory construction that a word covers its enlarged and plural sense. The Court, of course, does not downplay the importance of an impeachment complaint, for it is the matchstick that kindles the candle of impeachment proceedings. The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding. With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the candle at the same time.

What is important is that there should only be ONE CANDLE that is kindled in a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the candle. Under the Rules of the House, a motion to refer is not among those motions that shall be decided without debate, but any debate thereon is only made subject to the five-minute rule. Moreover, it is common parliamentary practice that a motion to refer a matter or question to a committee may be debated upon, not as to the merits thereof, but only as to the propriety of the referral. With respect to complaints for impeachment, the House has the discretion not to refer a subsequent impeachment complaint to the Committee on Justice where official records and further debate show that an impeachment complaint filed against the same impeachable officer has already been referred to the said committee and the one year period has not yet expired, lest it becomes instrumental in perpetrating a constitutionally prohibited second impeachment proceeding.

Far from being mechanical, before the referral stage, a period of deliberation is afforded the House, as the Constitution, in fact, grants a maximum of three session days within which to make the proper referral. As mentioned, one limitation imposed on the House in initiating an impeachment proceeding deals with deadlines. The Constitution states that “[a] verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order
of Business within ten session days, and referred to the proper Committee within three session days thereafter.” x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. As pointed out in Francisco, the impeachment proceeding is not initiated “when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done.

The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow.” Allowing an expansive construction of the term “initiate” beyond the act of referral allows the unmitigated influx of successive complaints, each having their own respective 60-session-day period of disposition from referral.

Worse, the Committee shall conduct overlapping hearings until and unless the disposition of one of the complaints ends with the affirmance of a resolution for impeachment or the overriding[ of a contrary resolution (as espoused by public respondent), or the House transmits the Articles of Impeachment (as advocated by the Reyes group), or the Committee on Justice concludes its first report to the House plenary regardless of the recommendation (as posited by respondent-intervenor). Each of these scenarios runs roughshod the very purpose behind the constitutionally imposed one-year bar. Opening the floodgates too loosely would disrupt the series of steps operating in unison under one proceeding.

• On 22 July 2010, Baraquel, et al. filed animpeachment complaint (First Complaint) againstOmbudsman Ma. Merceditas N. Gutierrez(petitioner) based on betrayal of public trust andculpable violation of the Constitution.
• On 3 August 2010, a Second Complaint was filed by Reyes, et al. against the same respondent also based on betrayal of public trust and culpableviolation of the Constitution. •On 11 August 2010, the two complaints werereferred by the House Plenary to the Committeeon Justice at the same time.
• On 1 September 2010, the Committee on Justicefound the First and Second Complaints sufficientin form. On 7 September 2010, the Committee onJustice, found the First and Second Complaintswere sufficient in form.
• On 13 September 2010, petitioner filed a petitionfor certiorari and prohibition before the SupremeCourt seeking to enjoin the Committee on Justicefrom proceeding with the impeachment proceedings.

The petition prayed for a temporaryrestraining order.Petitioner: She invokes the Court’s expandedcertiorari jurisdiction to “determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”Public Respondent: The petition is prematureand not yet ripe for adjudication since petitioner has at her disposal a plain, speedyand adequate remedy in the course of the proceedings before public respondent. Publicrespondent argues that when petitioner filedthe present petition on September 13, 2010, ithad not gone beyond the determination of thesufficiency of form and substance of the twocomplaints. Hence, certiorari is unavailing.

The following day, during the en banc morningsession of 14 September 2010, the majority of the Court voted to issue a status quo ante order suspending the impeachment proceedings against petitioner. (Note: In urgent cases, it is a matter of practice for the Court that all the Justices shouldhave been given time, at least an hour or two, toread the petition before voting on the issuance of the status quo ante order. Unfortunately, this wasnot done.)

Section 3(5), Article XI of the 1987 Constitution provides that “no impeachment proceedings shall be initiated against the same official more thanonce within a period of one year .”ISSUE #1: Does the Supreme Court have the power todetermine whether public respondent committed a violationof the Constitution in the exercise of its discretion relating toimpeachment proceeding?HELD: YES, under the doctrine of expanded judicialreview.

The Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead,it provided for certain well-defined limits, or in the languageof Baker v. Carr,”judicially discoverable standards” for determining the validity of the exercise of such discretion, through the power of judicial review.

There exists no constitutional basis for the contention thatthe exercise of judicial review over impeachment proceedings would upset the system of checks and balances.Verily, the Constitution is to be interpreted as a whole and”one section is not to be allowed to defeat another.” Both areintegral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.Indubitably, the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding thesupremacy of the Constitution as the repository of thesovereign will.ISSUE #2: Is the petition premature and not yet ripe for adjudication?HELD: NO. In the present petition, there is no doubt thatquestions on the validity of the simultaneous referral of thetwo complaints and on the need to publish as a mode of promulgating the Rules of Procedure in ImpeachmentProceedings of the House (Impeachment Rules) presentconstitutional vagaries which call for immediateinterpretation.

The unusual act of simultaneously referring to publicrespondent two impeachment complaints presents a novelsituation to invoke judicial power. Petitioner cannot thus beconsidered to have acted prematurely when she took the cuefrom the constitutional limitation that only one impeachment proceeding should be initiated against an impeachableofficer within a period of one year.ISSUE #3: When is an impeachment complaint deemedinitiated?HELD: There are two components of the act of initiating thecomplaint: the filing of the impeachment complaint AND

the referral by the House Plenary to the Committee onJustice. Once an impeachment complaint has been initiated(meaning, filed and initiated), another impeachmentcomplaint may not be filed against the same officialwithin a one year period.

ISSUE #4: Do the Impeachment Rules provide for comprehensible standards in determining the sufficiency of form and substance?HELD: YES. Contrary to petitioner’ contention, theImpeachment Rules are clear in echoing the constitutionalrequirements and providing that there must be a “verifiedcomplaint or resolution,” and that the substance requirement is met if there is “a recital of facts constituting the offensecharged and determinative of the jurisdiction of thecommittee.In fact, it is only in the Impeachment Rules where adetermination of sufficiency of form and substance of animpeachment complaint is made necessary.

This requirementis not explicitly found in the Constitution which merelyrequires a “hearing.” ( Section 3[2], Article XI). In thedischarge of its constitutional duty, the House deemed that afinding of sufficiency of form and substance in animpeachment complaint is vital “to effectively carry out” theimpeachment process, hence, such additional requirement inthe Impeachment Rules.ISSUE #5: May the Supreme Court look into the narration of facts constitutive of the offenses vis-à-vis petitioner’ssubmissions disclaiming the allegations in the complaints?HELD: NO. This issue would “require the Court to make adetermination of what constitutes an impeachable offense.Such a determination is a purely political question which theConstitution has left to the sound discretion of the legislature(Francisco vs. House of Representatives.)ISSUE #6: Was petitioner denied of due process, because of the delay in the publication of the Impeachment Rules?HELD: NO. The Supreme Court discussed the difference between publication and promulgation.

To recall, days after the 15th Congress opened on July 26,2010 or on August 3, 2010, public respondent provisionallyadopted the Impeachment Rules of the 14th Congress andthereafter published on September 2, 2010 its ImpeachmentRules, admittedly substantially identical with that of the 14thCongress, in two newspapers of general circulation.Citing Tañada v. Tuvera, petitioner contends that she wasdeprived of due process since the Impeachment Rules was published only on September 2, 2010 a day after publicrespondent ruled on the sufficiency of form of thecomplaints. She likewise tacks her contention on Section3(8), Article XI of the Constitution which directs that”Congress shall promulgate its rules on impeachment toeffectively carry out the purpose of this section.”Public respondent counters that “promulgation” in this caserefers to “the publication of rules in any medium of information, not nec essarily in the Official Gazette or newspaper of general circulation.”While “promulgation” would seem synonymous to”publication,” there is a statutory difference in their usage.The Constitution notably uses the word “promulgate” 12times.

A number of those instances involves the promulgation of various rules, reports and issuancesemanating from Congress, the Supreme Court, the Office of the Ombudsman as well as other constitutional offices.To appreciate the statutory difference in the usage of theterms “promulgate” and “publish,” the case of the Judiciaryis in point. In promulgating rules concerning the protectionand enforcement of constitutional rights, pleading, practiceand procedure in all courts, the Supreme Court hasinvariably required the publication of these rules for their effectivity. As far as promulgation of judgments isconcerned, however, PROMULGATION means “thedelivery of the decision to the clerk of court for filingand publication.

Promulgation must thus be used in the context in which it isgenerally understood—that is, to make known. Since theConstitutional Commission did not restrict “promulgation”to “publication,” the former should be understood to have been used in its general sense. It is within the discretion of Congress to determine on how to promulgate itsImpeachment Rules, in much the same way that theJudiciary is permitted to determine that to promulgate adecision means to deliver the decision to the clerk of courtfor filing and publication. It is not for the Supreme Court to tell a coequal branch of government how to promulgate when the Constitution itself has not prescribed a specific method of promulgation.

The Court is in no positionto dictate a mode of promulgation beyond the dictates of theConstitution.Inquiries in aid of legislation under Section 21, Article VI of the Constitution is the Sole instance in the Constitutionwhere there is a categorical directive to duly publish a set of rules of procedure. (Neri vs. Senate)Even assuming arguendo that publication is required, lack of it does not nullify the proceedings taken Prior to theeffectivity of the Impeachment Rules which faithfullycomply with the relevant self executing provisionsof theConstitution.

Otherwise, in cases where impeachmentcomplaints are filed at the start of each Congress, themandated periods under Section 3, Article XI of theConstitution would already run or even lapse while awaitingthe expiration of the 15-day period of publication prior to the effectivity of the Impeachment Rules. In effect, the House would already violate the Constitution for its inaction on the impeachment complaints pending the completion of the publication requirement. (Just like what happened in this case, where the complaint was filed even before the15th Congress open its first session)Given that the Constitution itself states that any promulgation of the rules on impeachment is aimed at “effectively carry[ing] out the purpose” of impeachment proceedings, the Court finds no grave abuse of discretionwhen the House deemed it proper to provisionally adopt theRules on Impeachment of the 14th Congress, to meet the exigency in such situation of early filing and in keeping withthe “effective” implementation of the “purpose” of theimpeachment provisions. In other words, the provisionaladoption of the previous Congress’ Impeachment Rules is within the power of the House to promulgate its rules onimpeachment to effectively carry out the avowed purpose.Moreover, the rules on impeachment, as contemplated by the framers of the Constitution, merely aid or supplement the procedural aspects of impeachment.

Being procedural innature, they may be given retroactive application to pendingactions. The retroactive application of procedural laws does not violate any right of a person who may feel that he isadversely affected, nor is it constitutionally objectionable.The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws.” In the present case,petitioner fails to allege any impairment ofvested rights.It bears stressing that, unlike the process of inquiry in aid of legislation where the rights of witnesses are involved,impeachment is primarily for the protection of the people asa body politic, and not for the punishment of the offender.ISSUE #6: When do we reckon the start of the one-year ban?Petitioner contends that it is reckoned from the filing of thefirst impeachment complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15thCongress. She posits that within one year from July 22,2010, no second impeachment complaint may be acceptedand referred to public respondent.

HELD: Francisco doctrine states that the term “initiate”means to file the complaint and referral of the complaint to the Committee on Justice. Once an impeachmentcomplaint has been initiated, another impeachmentcomplaint may not be filed against the same official within aone year period. Therefore, the one-year period ban isreckoned not from the filing of the first complaint, but on thedate it is referred to the House Committee on Justice.Petitioner submits that referral could not be the reckoning point of initiation because “something prior to that hadalready been done.”

This is wrong. Following petitioner’sline of reasoning, the verification of the complaint or theendorsement by a member of the House – stepsdone prior to the filing – would already initiate theimpeachment proceedings. ISSUE #7: Does an impeachment complaint need to allegeonly one impeachable offense? Petitioner argues that public respondent gravely abused itsdiscretion when it disregarded its own Impeachment Rules,which provides that “the Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply toimpeachment proceedings before the House.” Petitioner invokes the application of Section 13, Rule 110 of the Ruleson Criminal Procedure on one offense per complaint rule.

To petitioner, the two impeachment complaints are insufficientin form and substance since each charges her with bothculpable violation of the Constitution and betrayal of publictrust. HELD: The Constitution allows the indictment for multiple impeachment offenses, with each charge representing anarticle of impeachment, assembled in one set known as the”Articles of Impeachment.” It, therefore, follows that animpeachment complaint need not allege only one impeachable offense.

Petitioner filed Resolution including Motion to Cite in Contempt Special Prosecutor (formerly Tanodbayan) Raul M. Gonzalez. Gonzalez in: (1) having caused the filing of the information against petitioner in criminal case before the Sandiganbayan, and (2) issuing certain allegedly contemptuous statements to the media in relation to the proceedings in where respondent is claiming that he is acting as Tanodbayan-Ombudsman. A Resolution from the Supreme Court required respondent to show cause why he should not be punished for contempt and/or subjected to administrative sanctions for making certain public statements. Portion of the published article from Philippine Daily Globe in his interview: What I am afraid of (with the issuance of the order) is that it appears that while rich and influential persons get favorable actions from the Supreme Court, it is difficult for an ordinary litigant to get his petition to be given due course. Respondent has not denied making the above statements; indeed, he acknowledges that the newspaper reports of the statements attributed to him are substantially correct. ISSUE:

Whether or not respondent Atty. Gonzales is entitled to invoke freedom of speech as a defense. HELD:
NO. Respondent indefinitely suspended from the practice of law. RATIO:
The Court concludes that respondent Gonzalez is guilty both of contempt of court in facie curiae and of gross misconduct as an officer of the court and member of the Bar.(Section 27, Rule 138, Rules of Court) [F]reedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests.

Petitioner Enrique A. Zaldivar, governor of the province of Antique, filed a petition for certiorari, prohibition and mandamus under Rule 65 before the Supreme Court, seeking to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of criminal cases against him on the ground that said cases were filed by said Tanodbayan without legal and constitutional authority, since under the 1987 Constitution which took effect on February 2, 1987, it is only the Ombudsman (not the present or incumbent Tanodbayan) who has the authority to file cases with the Sandiganbayan. Petitioner also prayed that Tanodbayan Gonzalez be restrained
from conducting preliminary investigationswith the Sandiganbayan.

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitutionand who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of theOmbudsman. This right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority.

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter’s authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original
power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to theOmbudsman, who may, however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate.

It is not correct either to suppose that the Special Prosecutor remains theOmbudsman as long as he has not been replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman is a new creation under Article XI of the Constitution different from the Office of the Tanodbayan created under PD 1607 although concededly some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot plead that he has a right to hold over the position of Ombudsman as he has never held it in the first place.

This is a case wherein respondent Ombudsman, requires petitioners Nerio Rogado and Elisa Rivera, as chief accountant and record custodian, respectively, of the Economic Intelligence and Investigation Bureau (EIIB) to produce “all documents relating to Personal Services Funds for the year 1988” and all evidence such as vouchers from enforcing his orders. Petitioner Almonte was formerly Commissioner of the EIIB, while Perez is Chief of the EIIB’s Budget and Fiscal Management Division. The subpoena duces tecum was issued by the Ombudsman in connection with his investigation of an anonymous letter alleging that funds representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to have been written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of Finance, with copies furnished several government offices, including the Office of the Ombudsman.

May be erased: [The letter reads in pertinent parts: that the EIIB has a syndicate headed by the Chief of Budget Division who is manipulating funds and also the brain of the so called “ghost agents” or the “Emergency Intelligence Agents” (EIA); that when the agency had salary differential last Oct ’88 all money for the whole plantilla were released and from that alone, Millions were saved and converted to ghost agents of EIA; Almost all EIIB agents collects payroll from the big time smuggler syndicate monthly and brokers every week for them not to be apprehended.]

In his comment on the letter-complaint, petitioner Almonte denied all the allegations written on the anonymous letter. Petitioners move to quash the subpoena and the subpoena duces tecum but was denied.

Disclosure of the documents in question is resisted with the claim of privilege of an agency of the government on the ground that “knowledge of EIIB’s documents relative to its Personal Services Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations, movements, targets, strategies, and tactics and the whole of its being” and this could “destroy the EIIB.”

Whether petitioners can be ordered to produce documents relating to personal services and salary vouchers of EIIB employees on the plea that such documents are classified without violating their equal protection of laws.

Held: YES. At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters and in addition, privilege to withhold the identity of persons who furnish information of violation of laws. In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by
the production of records pertaining to the personnel of the EIIB. Indeed, EIIB’s function is the gathering and evaluation of intelligence reports and information regarding “illegal activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar salting.” Consequently, while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production, no similar excuse can be made for a privilege resting on other considerations.

The Ombudsman is investigating a complaint that several items in the EIIB were filled by fictitious persons and that the allotments for these items in 1988 were used for illegal purposes. The plantilla and other personnel records are relevant to his investigation as the designated “protectors of the people” of the Constitution.

Nor is there violation of petitioners’ right to the equal protection of the laws. Petitioners complain that “in all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified complaints or sworn statements with their identities fully disclosed,” while in proceedings before the Office of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there can be no objection to this procedure because it is provided in the Constitution itself. In the second place, it is apparent that in permitting the filing of complaints “in any form and in a manner,” the framers of the Constitution took into account the well-known reticence of the people which keep them from complaining against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them. On the other hand complainants are more often than not poor and simple folk who cannot afford to hire lawyers.

Finally, it is contended that the issuance of the subpoena duces tecum would
violate petitioners’ right against self-incrimination. It is enough to state that the documents required to be produced in this case are public records and those to whom the subpoena duces tecum is directed are government officials in whose possession or custody the documents are. Moreover, if, as petitioners claim the disbursement by the EII of funds for personal service has already been cleared by the COA, there is no reason why they should object to the examination of the documents by respondent Ombudsman.

Three employees from the Land Transportation Office (LTO) in Jagna, Bohol were found by the Ombudsman to have perpetrated a scheme to defraud the government of proper motor vehicle registration fees. They now seek in the present consolidated petitions a judgment from this Court annulling the January 18, 2006 Decision1 and September 21, 2007 Resolution2 of the Court of Appeals (CA) which affirmed with modification the Decision3 of the Office of the Ombudsman-Visayasdismissing them from government service. The facts follow:

On September 4, 2001, the Philippine Star News, a local newspaper in Cebu City, reported that employees of the LTO in Jagna, Bohol, are shortchanging the government by tampering with their income reports.4 Accordingly, Regional Director Ildefonso T. Deloria of the Commission on Audit (COA) directed State AuditorsTeodocio D. Cabalit and Emmanuel L. Coloma of the Provincial Revenue Audit Group to conduct a fact-finding investigation. A widespread tampering of official receipts of Motor Vehicle Registration during the years 1998, 1999, 2000 and 2001 was then discovered by the investigators. According to the investigators, a total of 106 receipts were tampered. The scheme was done by detaching the Plate Release and Owner’s copy from the set of official receipts then typing thereon the correct details corresponding to the vehicle registered, the owner’s name and address, and the correct amount of registration fees. The other copies, consisting of the copies for the Collector, EDP, Record, Auditor, and Regional Office, meanwhile, were typed on to make it appear that the receipts were issued mostly for the registration of motorcycles with much lower registration charges. Incorrect names and/or addresses were also used on said file copies.

The difference between the amounts paid by the vehicle owners and the amounts appearing on the file copies were then pocketed by the perpetrators, and only the lower amounts appearing on the retained duplicate file copies were reported in the Report of Collections.5 According to State Auditors Cabalit and Coloma in their Joint-Affidavit, the scheme was perpetrated by LTO employees Leonardo G. Olaivar, Gemma P. Cabalit, Filadelfo S. Apit and Samuel T. Alabat, and resulted in an unreported income totaling P169,642.50.6 On August 8, 2002, COA Regional Cluster Director Atty. Roy L. Ursal reported the tampering of official receipts to Deputy Ombudsman Primo C. Miro.7 According to Atty. Ursal, the irregularity is penalized under Article 217, in relation to Article 171 of the Revised Penal Code;8 Section 3(e)9 of the Anti-Graft and Corrupt Practices Act, and likewise violates Republic Act (R.A.) No. 6713.10 In a Joint Evaluation Report, Graft Investigators Pio R. Dargantes and Virginia Palanca-Santiago found grounds to conduct a preliminary investigation.

Hence, a formal charge for dishonesty was filed against Olaivar, Cabalit, Apit and Alabat before the Office of the Ombudsman-Visayas, and the parties were required to submit their counter-affidavits. In compliance, Olaivar, Cabalit, Apit and Alabat submitted separate counter-affidavits, all essentially denying knowledge and responsibility for the anomalies. As toOlaivar, he maintained that the receipts were typed outside his office by regular and casual employees. He claimed that the receipts were presented to him only for signature and he does not receive the payment when he signs the receipts.12 Cabalit, for her part, claimed that her duty as cashier was to receive collections turned over to her and to deposit them in the Land Bank of the Philippines in Tagbilaran City. She claimed that she was not even aware of any anomaly in the collection of fees prior to the investigation.13 As to Apit, he admitted that he countersigned the official receipts, but he too denied being aware of any illegal activity in their office. He claimed that upon being informed of the charge, he verified the photocopies of the tampered receipts and was surprised to find that the signatures above his name were falsified.14 Alabat, meanwhile, claimed he did not tamper, alter or falsify any public document in the performance of his duties. He insisted that the initial above his name on Official Receipt No. 64056082 was Apit’s, while the initial on Official Receipt No. 64056813 was that of Olaivar.15 During the hearing before Graft Investigator Pio R. Dargantes, State Auditor Cabalit testified on the investigation he conducted in the LTO in Jagna, Bohol. He testified that he was furnished with the owner’s and duplicate copies of the tampered receipts. Upon comparison of the Owner’s copy with the Collector or Record’s copy, he noticed that the amounts shown in the original copies were much bigger than those appearing in the file copies.

State Auditor Cabalit also declared that the basis for implicating Olaivar is the fact that his signature appears in all the 106 tampered official receipts and he signed as verified correct the Report of Collections, which included the tampered receipts. As to Apit and Cabalit, they are the other signatories of the official receipts.16 In some official receipts, the Owner’s copy is signed by F.S. Apit as Computer Evaluator, G.P. Cabalit as Cashier, and Leonardo Olaivar as District Head, but their signatures do not appear on the file copies.17 On February 12, 2004, the Office of the Ombudsman-Visayas directed18 the parties to submit their position papers pursuant to Administrative Order (A.O.) No. 17, dated September 7, 2003, amending the Rules of Procedure of the Office of the Ombudsman.19 No cross-examination of State Auditor Cabalit was therefore conducted. Complying with the above Order, the COA submitted its position paper on March 18, 2004. Olaivar, Cabalit and Apit, for their part, respectively submitted their position papers on April 29, 2004, March 18, 2004 and March 15, 2004. In its position paper,20 the COA pointed out that the signatures of Cabalit, Apit and Olaivar were indispensable to the issuance of the receipts. As to Olaivar, the original receipts bear his signature, thereby showing that he approved of the amounts collected for the registration charges.

However, when the receipts were reported in the Report of Collections, the data therein were already tampered reflecting a much lesser amount. By affixing his signature on the Report of Collections and thereby attesting that the entries therein were verified by him as correct, he allowed the scheme to be perpetrated. As to Cabalit, the COA pointed out that as cashier,Cabalit’s signature on the receipts signified that she received the registration fees. The correct amounts should have therefore appeared in the Report of Collections, but as already stated, lesser amounts appeared on the Report of Collections, which she prepares. In the same manner, Apit, as computer evaluator, also signed the subject receipts allowing the irregularities to be perpetuated. In his position paper,21 Olaivar meanwhile insisted that he had no participation in the anomalies. He stressed that his only role in the issuance of the official receipts was to review and approve the applications, and that he was the last one to sign the official receipts. He argued that based on the standard procedure for the processing of applications for registration of motor vehicles, it could be deduced that there was a concerted effort or conspiracy among the evaluator, typist and cashier, while he was kept blind of their modus operandi. Cabalit, for her part, questioned the findings of the investigators. She stressed in her position paper22 that had there been a thorough investigation of the questioned official receipts, the auditors would have discovered that the signatures appearing above her name were actually that of Olaivar. She outlined the standard paper flow of a regular transaction at the LTO. It begins when the registrant goes to the computer evaluator for the computation of applicable fees and proceeds to the cashier for payment. After paying, the typist will prepare the official receipts consisting of seven (7) copies, which will be routed to the computer evaluator, to the district head, and to the cashier for signature.

The cashier retains the copies for the EDP, Regional Office, Collector and Auditor, while the remaining copies (Owner, Plate Release and Record’s copy) will be forwarded to the Releasing Section for distribution and release. Cabalit insisted that on several occasions Olaivar disregarded the standard procedure and directly accommodated some registrants who were either his friends or referred to him by friends. For such transactions, Olaivar assumes the functions of computer evaluator, typist and cashier, as he is the one who computes the fees, receives the payment and prepares the official receipts. Olaivar would then remit the payment to her. As the cashier, she has to accept the payment as a matter of ministerial duty. Apit, meanwhile, stressed in his position paper23 that the strokes of the signatures appearing above his typewritten name on the official receipts are different, indicating that the same are falsified. He also explained that considering that the LTO in Jagna issues around 20 to 25 receipts a day, he signed the receipts relying on the faith that his co-employees had properly accomplished the forms. He also pointed out that Engr. Dano admitted signing accomplished official receipts when the regular computer encoder is out, which just shows that other personnel could have signed above the name of F.S. Apit.

On May 3, 2004, the Office of the Ombudsman-Visayas rendered judgment finding petitioners liable for dishonesty for tampering the official receipts to make it appear that they collected lesser amounts than they actually collected. The OMB-Visayas ruled: WHEREFORE, premises considered, it is hereby resolved that the following respondents be found guilty of the administrative infraction of DISHONESTY and accordingly be meted out the penalty of DISMISSAL FROM THE SERVICE with the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service: 1. Leonardo G. Olaivar -Transportation Regulation Officer II/ Office[r]-In-Charge LTO Jagna District Office

Essentially, the issues for our resolution are: (1) whether there was a violation of the right to due process when the hearing officer at the Office of the Ombudsman-Visayas adopted the procedure under A.O. No. 17 notwithstanding the fact that the said amendatory order took effect after the hearings had started; and (2) whetherCabalit, Apit and Olaivar are administratively liable. As regards the first issue, petitioners claim that they were denied due process of law when the investigating lawyer proceeded to resolve the case based only on the affidavits and other evidence on record without conducting a formal hearing.

They lament that the case was submitted for decision without giving them opportunity to present witnesses and cross-examine the witnesses against them. Petitioner Cabalit also argues that the Office of the Ombudsman erred in applying the amendments under A.O. No. 17 to the trial of the case, which was already in progress under the old procedures under A.O. No. 07. She stressed that under A.O. No. 07, she had the right to choose whether to avail of a formal investigation or to submit the case for resolution on the basis of the evidence on record. Here, she was not given such option and was merely required to submit her position paper. Petitioners’ arguments deserve scant consideration.

Suffice to say, petitioners were not denied due process of law when the investigating lawyer proceeded to resolve the case based on the affidavits and other evidence on record. Section 5(b)(1)32 Rule 3, of the Rules of Procedure of the Office of the Ombudsman, as amended by A.O. No. 17, plainly provides that the hearing officer may issue an order directing the parties to file, within ten days from receipt of the order, their respective
verified position papers on the basis of which, along with the attachments thereto, the hearing officer may consider the case submitted for decision. It is only when the hearing officer determines that based on the evidence, there is a need to conduct clarificatory hearings or formal investigations under Section 5(b)(2) and Section 5(b)(3) that such further proceedings will be conducted.

But the determination of the necessity for further proceedings rests on the sound discretion of the hearing officer. As the petitioners have utterly failed to show any cogent reason why the hearing officer’s determination should be overturned, the determination will not be disturbed by this Court. We likewise find no merit in their contention that the new procedures under A.O. No. 17, which took effect while the case was already undergoing trial before the hearing officer, should not have been applied. The rule in this jurisdiction is that one does not have a vested right in procedural rules. In Tan, Jr. v. Court of Appeals,33 the Court elucidated: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent. The fact that procedural statutes may somehow affect the litigants’ rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. Nor is the retroactive application of procedural statutes constitutionally objectionable.

The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws. It has been held that “a person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure. (Emphasis supplied.) While the rule admits of certain exceptions, such as when the statute itself expressly or by necessary implication provides that pending actions are excepted from its operation, or where to apply it would impair vested rights, petitioners failed to show that application of A.O. No. 17 to their case would cause injustice to them. Indeed, in this case, the Office of the Ombudsman afforded petitioners every opportunity to defend themselves by allowing them to submit counter-affidavits, position papers, memoranda and other evidence in their defense.

Since petitioners have been afforded the right to be heard and to defend themselves, they cannot rightfully complain that they were denied due process of law. Well to remember, due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. It is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. More often, this opportunity is conferred through written pleadings that the parties submit to present their charges and defenses.34 But as long as a party is given the opportunity to defend his or her interests in due course, said party is not denied due process.35 Neither is there merit to Cabalit’s assertion that she should have been investigated under the “old rules of procedure” of the Office of the Ombudsman, and not under the “new rules.” In Marohomsalic v. Cole,36 we clarified that the Office of the Ombudsman has only one set of rules of procedure and that is A.O. No. 07, series of 1990, as amended.

There have been various amendments made thereto but it has remained, to date, the only set of rules of procedure governing cases filed in the Office of the Ombudsman. Hence, the phrase “as amended” is correctly appended to A.O. No. 7 every time it is invoked. A.O. No. 17 is just one example of these amendments. But did the CA correctly rule that petitioners Cabalit and Apit are liable for dishonesty while petitioner Olaivar is liable for gross neglect of duty? Cabalit argues that the CA erred in affirming the decision of the Ombudsman finding her liable for dishonesty. She asserts that it was not established by substantial evidence that the forged signatures belong to her.

Meanwhile, Apit contends that the CA erred in not considering evidence which proves that the signatures appearing above his name are falsified. However, we note that both Cabalit and Apit raise essentially factual issues which are not proper in petitions filed under Rule 45. Settled jurisprudence dictates that subject to a few exceptions, only questions of law may be brought before the Court via a petition for review on certiorari. In Diokno v. Cacdac,37 the Court held: x x x [T]he scope of this Court’s judicial review of decisions of the Court of Appeals is generally confined only to errors of law, and questions of fact are not entertained. We elucidated on our fidelity to this rule, and we said: Thus, only questions of law may be brought by the parties and passed upon by this Court in the exercise of its power to review. Also, judicial review by this Court does not extend to a reevaluation of the sufficiency of the evidence upon which the proper x x x tribunal has based its determination. (Emphasis supplied.)

It is aphoristic that a re-examination of factual findings cannot be done through a petition for review on certiorari under Rule 45 of the Rules of Court because this Court is not a trier of facts; it reviews only questions of law. The Supreme Court is not duty-bound to analyze and weigh again the evidence considered in the proceedings below. 38 Here, the CA affirmed the findings of fact of the Office of the Ombudsman-Visayas which are supported by substantial evidence such as affidavits of witnesses and copies of the tampered official receipts.39 The CA found that a perusal of the questioned receipts would easily reveal the discrepancies between the date, name and vehicle in the Owner’s or Plate Release copies and the File, Auditor, and Regional Office copies.

It upheld the factual findings of the Ombudsman that petitionersCabalit and Apit tampered with the duplicates of the official receipts to make it appear that they collected a lesser amount. Their participation was found to have been indispensable as the irregularities could not have been committed without their participation. They also concealed the misappropriation of public funds by falsifying the receipts. Now, superior courts are not triers of facts. When the findings of fact of the Ombudsman are supported by substantial evidence, it should be considered as conclusive.40 This Court recognizes the expertise and independence of the Ombudsman and will avoid interfering with its findings absent a finding of grave abuse of discretion.41 Hence, being supported by substantial evidence, we find no reason to disturb the factual findings of the Ombudsman which are affirmed by the CA.

As for Olaivar, he insists that the CA erred in holding him administratively liable for gross negligence when he relied to a reasonable extent and in good faith on the actions of his subordinates in the preparation of the applications for registration. He questions the appellate court’s finding that he failed to exercise the required diligence in the performance of his duties. While as stated above, the general rule is that factual findings of the CA are not reviewable by this Court, we find that Olaivar’s case falls in one of the recognized exceptions laid down in jurisprudence since the CA’s findings regarding his liability are premised on the supposed absence of evidence but contradicted by the evidence on record.42 The Office of the Ombudsman-Visayas found Olaivar administratively liable for dishonesty while the CA ruled that he may not be held liable for dishonesty supposedly for lack of sufficient evidence.

The CA ruled that there was no substantial evidence to show that Olaivar participated in the scheme, but the tampering of the official receipts could have been avoided had he exercised the required diligence in the performance of his duties as officer-in-charge of the Jagna District Office. Thus, the CA found him liable only for gross neglect of duty. This, however, is clear error on the part of the CA. For one, there is clear evidence that Olaivar was involved in the anomalies. Witness Joselito Taladua categorically declared in his affidavit43 that he personally paidOlaivar the sum of P2,675 for the renewal of registration of a jeep for which he was issued Official Receipt No. 47699853. Much to his dismay, Taladua later found out that his payment was not reflected correctly in the Report of Collections, and that the vehicle was deemed unregistered for the year 2000. More, Cabalit pointed to Olaivar as the person behind the anomaly in the LTO-Jagna District Office.

She narrated in her position paper that on several times, Olaivardirectly accommodated some registrants and assumed the functions of computer evaluator, typist and cashier, and computed the fees, received payment and prepared the official receipts for those transactions. She also revealed that Olaivar would ask her for unused official receipts and would later return the duplicate copies to her with the cash collections. Later, he would verify the Report of Collections as correct.44 Likewise, Motor Vehicle Inspector Engr. Lowell A. Dano confirmed that in several instances, he witnessed Olaivar type the data himself in the official receipts even if they have a typist in the office to do the job. Engr. Dano added that after typing, Olaivar personally brought the accomplished official receipts for him (Engr. Dano) to sign.45 Moreover, Jacinto Jalop, the records officer of the LTO in Jagna, Bohol, illustrated how the official receipts were tampered.

He disclosed that the correct charges were typed in the Owner’s copy and the Plate Release copy of the official receipts, but a much lower charge and an incorrect address were indicated in the other copies. He asserted that Olaivar was responsible for tampering the official receipts.46 Neglect of duty implies only the failure to give proper attention to a task expected of an employee arising from either carelessness or indifference.47 However, the facts of this case show more than a failure to mind one’s task. Rather, they manifest that Olaivar committed acts of dishonesty, which is defined as the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty. It implies a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity, or integrity in principle.48 Hence, the CA should have found Olaivar liable for dishonesty.

But be that as it may, still, the CA correctly imposed the proper penalty upon Olaivar. Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, dishonesty, like gross neglect of duty, is classified as a grave offense punishable by dismissal even if committed for the first time.49 Under Section 58,50such penalty likewise carries with it the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service. One final note. Cabalit contends that pursuant to the obiter in Tapiador v. Office of the Ombudsman,51 the Office of the Ombudsman can only recommend administrative sanctions and not directly impose them. However, in Office of the Ombudsman v. Masing,52 this Court has already settled the issue when we ruled that the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory. We held,

We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that “the Ombudsman’s order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory.” Implementation of the order imposing the penalty is, however, to be coursed through the proper officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held—

‘While Section 15(3) of RA 6770 states that the Ombudsman has the power to “recommend x x x removal, suspension, demotion x x x” of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may “enforce its disciplinary authority as provided in Section 21” of RA 6770.’ (emphasis supplied.)53 Subsequently, in Ledesma v. Court of Appeals,54 and Office of the Ombudsman v. Court of Appeals,55 the Court upheld the Ombudsman’s power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault in the exercise of its administrative disciplinary authority. In Office of the Ombudsman v. Court of Appeals, we held that the exercise of such power is well founded in the Constitution and R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, thus: The Court further explained in Ledesma that the mandatory character of the Ombudsman’s order imposing a sanction should not be interpreted as usurpation of the authority of the head of office or any officer concerned.

This is because the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman “recommends” the action to be taken against an erring officer or employee, the provisions in the Constitution and in Republic Act No. 6770 intended that the implementation of the order be coursed through the proper officer. Consequently in Ledesma, the Court affirmed the appellate court’s decision which had, in turn, affirmed an order of the Office of the Ombudsman imposing the penalty of suspension on the erring public official.56 The duty and privilege of the Ombudsman to act as protector of the people against the illegal and unjust acts of those who are in the public service emanate from no less than the 1987 Constitution. Section 12 of Article XI thereof states: Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. In addition, Section 15 (3) of R.A. No. 6770, provides:

Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act:Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer.

Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all administrative complaints: SEC. 19. Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (1) Are contrary to law or regulation;

Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agency’s functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or (6) Are otherwise irregular, immoral or devoid of justification. In the exercise of his duties, the Ombudsman is given full administrative disciplinary authority. His power is not limited merely to receiving, processing complaints, or recommending penalties. He is to conduct investigations, hold hearings, summon witnesses and require production of evidence and place respondents under preventive suspension. This includes the power to impose the penalty of removal, suspension, demotion, fine, or censure of a public officer or employee.57 The provisions in R.A. No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority.

These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty.58 Thus, it is settled that the Office of the Ombudsman can directly impose administrative sanctions. We find it worthy to state at this point that public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.59 WHEREFORE, the petitions for review on certiorari are DENIED. The assailed Decision dated January 18, 2006 and Resolution dated September 21, 2007 of the Court of Appeals in CA-G.R. SP. Nos. 86256, 86394 and 00047 are AFFIRMED with MODIFICATION. Petitioner Leonardo G. Olaivar is held administratively liable for DISHONESTY and meted the penalty of dismissal from the service as well as the accessory penalties inherent to said penalty. With costs against petitioners.

Acting on the request, the Commission on Audit (COA) issued COA Order No. 19-1700 constituting a Special Audit Team. In the course of the investigation, the Special Audit Team discovered that certain anomalous and irregular transactions transpired during the covered period, the most serious being the purchase of construction materials evidenced by Sales Invoices No. 131145 and 131137 in the aggregate amount of P54,542.56, for which payment out of municipal funds was effected twice. The double payments were made in favor of Kelly Lumber and Construction Supply (Kelly Lumber, for short) and were accomplished through the issuance of two (2) disbursement vouchers (DVs), i.e., DV No. 101-92-06-1222 and DV No. 101-92-01-195. Petitioner signed the vouchers and encashed the two (2) corresponding PNB checks, both of which were payable to his order.

The findings of the Audit Team were embodied in a 336-page SAO Report No. 93-28, on the basis of which petitioner was charged with violation of Section 3(e) of R.A. 3019. The provision reads:
Sec. 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 declared to be unlawful:

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 Information[3] against petitioner, filed before the Sandiganbayan and thereat docketed as Criminal Case No. 22830, alleged:
That on June 26, 1992, or sometime prior or subsequent thereto, in the Municipality of Bacoor, Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Buencamino M. Cruz, a public officer being then the Municipal Mayor of Bacoor, Cavite and while in the performance of his official function, acting in evident bad faith, did then and there wilfully, (sic) unlawfully and criminally pay Kelly Lumber and Construction Supply the amount of Fifty Four Thousand Five Hundred Forty-Two Pesos and 56/100 (P54,542.56), Philippine Currency, despite the fact that said account had been previously paid by the Municipality, thus, causing undue injury to the Government in the amount aforestated.

Upon arraignment, petitioner entered a plea of “Not Guilty”. In time, trial ensued.
In a decision[4] dated 30 January 1998, the respondent court found petitioner guilty beyond reasonable doubt of violation of Section 3(e) of R.A. 3019 and sentenced him “to serve imprisonment of Seven (7) years, and One (1), month as minimum, to Ten (10) years of prision mayor as maximum, with consequent perpetual disqualification from holding public office, as provided by law.”

The only excuse given by the accused when he finally testified in his own defense, in very lame. For the excuse he gave, in explaining the anomaly or irregularity is that he was not aware of the double payment and that, he just signed the voucher for payment, as the last officer to sign the voucher, in order to effect payment thereon, to the supplier . . ., and that it was the duty of the Municipal Treasurer to verify the actual deliveries of the goods sold and their payment afterwards. This may be true, if the ensuing checks issued in payment of the goods covered by the voucher for payment, were made payable, indeed, to the real suppliers of the goods, and not made payable to the Mayor, . . ., and who in fact encashed the checks. The only real defense put up here by the accused is that: The supplier-Kelly Lumber and Construction Supply had subsequently reimbursed the Municipality of the amount of P54,542.56 thereby precluding denial of the double payment as shown in Exh. ”1” of the accused, . . . . (Underscoring in the original).

With his motion for reconsideration having been denied, per the graft court’s resolution of 17 July 1998,[5] petitioner is now with us via the instant recourse.

Petitioner acknowledges signing the DVs which paved the way for the double payment situation. He also admits encashing the checks corresponding to the DVs in question. He nonetheless urges the setting aside of the assailed decision, anchoring his virtual plea for acquittal on four (4) basic issues, to wit: (1) the fatally flawed Information filed against him; (2) the applicability in his favor of what he tagged as the Arias Doctrine; (3) the absence of bad faith on his part; and (4) the refund of the amount representing overpayment.

We have carefully reviewed the records of this case and found nothing therein to warrant a reversal of the challenged decision of the respondent court.
Petitioner maintains, anent the first issue, that the Information filed against him was fatally defective in that it did not allege that he is an officer “charged with the grant of licenses or permits or other concessions.”

Petitioner’s contention is flawed by the very premises holding it together. For, it presupposes that Section 3(e) of R.A. 3019 covers only public officers vested with the power of granting licenses, permits or similar privileges. Petitioner has obviously lost sight, if not altogether unaware, of our ruling in Mejorada vs. Sandiganbayan,[6] where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is “charged with the grant of licenses or permits or other concessions”. Following is an excerpt of what we said in Mejorada:

Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to “any public officer” is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of “public officers” may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions. (Emphasis and words in bracket supplied)

Still, with respect to the first issue, petitioner submits that a conviction could arise only for an inculpatory act alleged in the information and duly established in the trial, arguing in this regards that the information alleged that Kelly Lumber was paid twice for the same materials but what was
found during the trial was that the said payment was given to petitioner. Pressing the point, petitioner states in fine that a variance obtains between what was alleged in the Information filed in this case and what was proven during trial.

We are not persuaded.

And what petitioner took to be a variance between the allegation in the information, i.e., the excess payment was given to Kelly Lumber, and the acts proven, i.e., the payment in excess was given to petitioner, is more apparent than real. The perceived variance cannot plausibly be taken as invalidating the information and necessarily petitioner’s conviction. As may be noted, the information in question states that “x x x accused Buencamino M. Cruz, a public officer being then the Municipal Mayor of Bacoor, Cavite and while in the performance of his official function, acting in evident bad faith, did then and there willfully, unlawfully and criminally pay Kelly Lumber and Construction Supply the amount of Fifty Four Thousand Five Hundred Forty-Two Pesos and 56/100 (P54,542.56), Philippine Currency x x x”. What was found during the trial, however, was that, albeit double payment was eventually made, or appeared to have been made, to Kelly Lumber, the covering checks initially were made payable to petitioner. As a matter of fact, Kelly Lumber was even made to appear to have refunded and returned the second or double payment, as demonstrated by a Certification to this effect issued on the 19th day of March 1997 and signed by Bacoor Municipal Treasurer Salome U. Esagunde, which Certification reads in its material part, as follows:

It bears stressing that an information needs only allege the acts or omissions complained of as constituting the offense[10], in this case, the fact that petitioner made payment to Kelly Lumber twice, without need of going into specifics of how such payment was made. The accompanying details of the process of payment can be established during trial through evidentiary offer.

Invoking the lessons taught in Arias vs. Sandiganbayan[11], petitioner next argues that he cannot be held guilty of violation of Section 3(e) of RA 3019 for, following the doctrine established in that case, he had every right to rely, to a reasonable extent, on the bona fides of his subordinates,
referring to the municipal treasurer and accountant, who prepared the DVs and the checks in question.

Petitioner’s reliance on Arias is very much misplaced. As may be recalled, this Court, in acquitting the accused in Arias, made the following pronouncements:
We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly-sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served, and otherwise personally look into the reimbursement voucher’s accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands.

There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. (Italics in the original; Underscoring supplied).

Unlike in Arias, however, there exists in the present case an exceptional circumstance which should have prodded petitioner, if he were out to protect the interest of the municipality he swore to serve, to be curious and go beyond what his subordinates prepared or recommended. In fine, the added reason contemplated in Arias which would have put petitioner on his guard and examine the check/s and vouchers with some degree of circumspection before signing the same was obtaining in this case.

We refer to the unusual fact that the checks issued as payment for construction materials purchased by the municipality were not made payable to the supplier, Kelly Lumber, but to petitioner himself even as the disbursement vouchers attached thereto were in the name of Kelly Lumber. The discrepancy between the names indicated in the checks, on one hand, and those in the disbursement vouchers, on the other, should have alerted petitioner – if he were conscientious of his duties as he purports to be – that something was definitely amiss. The fact that the checks for the municipality’s purchases were made payable upon his order should, without more, have prompted petitioner to examine the same further together with the supporting documents attached to them, and not rely heavily on the recommendations of his subordinates.

It need no stretching of the mind to understand that the person or entity in whose favor a voucher is processed should also be the payee appearing in the checks issued to satisfy the same. Yet, for still unexplained reasons, petitioner chose to deviate from what to us is an ordinary accounting procedure, doubtless for a consideration less than honest.

Apropos the third issue, it is petitioner’s submission that, while he might have been negligent in the performance of his duties, the prosecution had not, at its end, established his being in bad faith.

Whether or not petitioner acted in good or bad faith in effecting what, at bottom, is an unauthorized double payment, addresses a question of credibility. As a general proposition, the determination of credibility is the domain of the trial court, not this Court.[12] And it cannot be overemphasized that the respondent court has declared petitioner to have acted with “malice afterthought”, a disposition which, in the language of that court, “is evident from checks originally issued in payment for goods paid twice made in favor of the accused himself.”[13]

Indeed by the mere fact that the accused herein had two (2) checks issued to him in his name, and then, collecting the money in cash
without any reason therefore (sic), is evident bad faith, as against bonafides (good faith) for his very act of having these two (2) checks in his name runs against the ‘gamut’ of public accountability . . . .

Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. Xxx

Given the above perspective, it is abundantly clear that a violation of Section 3(e) of R.A. 3019 may be committed even through negligence provided that said negligence is both gross and inexcusable.

Assuming, in gratia argumenti, that petitioner did not act in bad faith, he cannot plausibly deny that his negligence under the premises was not only gross but also inexcusable. For, although the checks were on their face payable to him even as the supporting disbursement vouchers were in the name of Kelly Lumber, petitioner still affixed his signature thereon. It is unthinkable that such irregularity, given his stature and the nature of his position, would have passed him unnoticed. In turn, his subordinates could not have so easily, and with such daring, presented him with a set of questionable documents – as petitioner would want to impress this Court – without his instructions.

Finally, it is puerile for petitioner to contend that Kelly Lumber’s act of refunding the amount subject of double payment argues against the idea of the government suffering damages. The injury suffered by the government is beyond cavil. This conclusion was aptly explained by the Sandiganbayan in the following wise:

Damage to the government in that instance [referring to the alleged double payment] is inevitable for the simple reason that money taken from the coffers was used by someone else for about two years and without paying interest and without authority for its use. (N.B. 19 March 1997 is only two months short of two years from filing of this case).

Moreover, refund of the amount subject of the prosecution is not one of those enumerated under Article 89 of the Revised Penal Code[16] which would totally extinguish criminal liability. Article 89 of the Revised Penal Code applies in a suppletory character as provided for under Article 10[17] of the same Code.

Any public officer or private person committing any of the unlawful acts or omission enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

In the same breath, however, the use of the same term is inappropriate because the penalty of prision mayor is imposable only for felonies punishable under the Revised Penal Code or when a special law specifically provides for such penalty for a given crime. As we have said in People vs. Simon:[18]

With respect to the first example, where the penalties under the special law are different from and are without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of the rules for the application of penalties under said Code or by other relevant statutory provisions based on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic Act No. 6539 and special laws of the same formulation. (Italics in the original; Underscoring supplied)

Republic Act 3019 under which petitioner was prosecuted and convicted is a special law which does not provide for a penalty of “prision mayor” for any of the acts punishable therein. Accordingly, a modification of the decision under review with respect to its penalty component is in order.

The court held that Section 24 of R.A. No. 6770 grants the Ombudsman power to preventively suspend public officials and employees facing administrative charges before him, and that the status in question is procedural. In contrast to penal statutes, which are strictly construed, procedural statutes are liberally construed. As to the preventive suspension, it is imposed as an aid in the investigation of the administrative charges. Under the Constitution, the ombudsman is expressly authorized to recommend to the appropriate official the discipline or prosecution of erring public officials or employees. And in order to make an intelligent determination whether to recommend such actions, the Ombudsman has to conduct an investigation where the need to suspend the respondents may arise to conduct such investigation in an expeditious and efficient manner.

The purpose of R.A. No. 6770 is to give the Ombudsman such powers, as he may need to perform efficiently the task committed to him by the Constitution. As such, said statute, particularly its provisions, should be given such interpretation that will effectuate the purposes and objectives 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 which it was created. Further, as it can be inferred from the Ombudsman Law, the Congress intended to empower the Ombudsman to preventively suspend all officials and employees under investigation by his office, irrespective of the whether they are employed “in his office” or in other offices of the government.

The moment a criminal or administrative complaint is filed with the Ombudsman, the respondent is deemed to be “in his authority” and he can proceed to determine whether said respondent should be placed under preventive suspension. In the claim that the Ombudsman committed grave abuse of discretion amounting o lack of jurisdiction when he issued the suspension order without affording petitioners the opportunity to confront the charges against them, the order for preventive suspension is validly issued even without a full-blown hearing and the formal presentation of evidence. In the case at bench, the Ombudsman issued the order only after: (a) petitioners had filed their answer to the administrative complaint and the “Motion for the Preventive Suspension” of petitioners; (b) private respondent had filed a reply to the answer of petitioners, specifying 23cases f harassment by petitioners of the members of private respondent; and, (c) a preliminary conference wherein the complaint and the respondents in the administrative case agreed to submit their list of witnesses and documentary evidence. Under these circumstances, it cannot be said that Director Raul Arnaw and Investigator Amy de Villa – Rosero acted with manifest partiality and bias in recommending the suspension of petitioners. Neither can it be said that the Ombudsman had acted with grave abuse of discretion in acting favorably on their recommendation.

The motion for Contempt which charges the lawyers of petitioners with unlawfully causing or otherwise inducing their clients to openly defy and disobey the preventive suspension as ordered by he Ombudsman and the Secretary of Health cannot prosper. The motion should be filed, as in fact such a motion was field, with the Ombudsman. The court find the acts alleged to constitute indirect contempt were legitimate measures taken by said lawyers to question the validity and propriety of the preventive suspension of their clients. However, the court take cognizance of the intemperate language used by the counsel for private respondents hurled against petitioners and their counsel. A lawyer should not be carried away in espousing his client’s cause. The use of abusive language by counsel against the opposing counsel constitutes disrespect to dignity of the court of justice. As to the Motion for Disbarment, it has no place in the instant special civic action which is confined to questions of jurisdiction or abuse of discretion for the purpose of relieving persons from the arbitrary acts of judges and quasi-judicial officers.

I agree as to the authority of the Ombudsman to preventively suspend any government official or employee administratively charged before him pending the investigation of the complaint to avoid prejudice in respondent’s continued stay in the prosecution of the case. But in the case at bar, the facts that were presented were not adequate to reasonably place the petitioners under preventive suspension. It is also important to determine whether it is necessary to issue the preventive suspension under the circumstances. I do not see any sufficient basis to justify the preventive suspension. I would be amenable to holding oral argument to hear the parties if only to have enough factual and legal bases to justify the preventive suspension of petitioners. The court may be suspending key government officials and employees on the basis of mere speculation, which may not serve the ends of justice but would deprive them of their right to due process. Petition dismissed.

BUENASEDA vs. FLAVIER

Facts: Petition for Certiorari, Prohibition and Mandamus with Prayer for Preliminary Injunction or TemporaryRestraining Order Petition sought to nullify the Order of the Ombudsman on January 7, 1992, directing preventive suspension of petitioners, Dr. Brigida Buenaseda, Isabelo Banez, Jr., Conrado Matias, Cora Solis and Enya Lopez. It alsosought to disqualify Director Raul Arnaw and Investigator Amy de Villa-Rosero from participation in the preliminary investigation of the charges against petitioner. Issues: 1.Whether or not the Ombudsman has the power to suspend government officials and employees workingin offices other than the Office of the Ombudsman, pending the investigation of the administrativecomplaints filed against said officials and employees2.Whether or not the Ombudsman committed grave abuse of discretion amounting to lack of jurisdiction Held:

.YES. The power “to recommend the suspension” of a public official or employees vested by theConstitution to the Ombudsman is referred to as a punitive measure. Section 24 of RA 6770, whichgrants Ombudsman the power to preventively suspend public officials and employees facingadministrative charges before him, is a procedural statute. It stated that preventive suspension is imposedafter compliance with the requisites as an aid in the investigation of administrative charges.It is expressed in the Constitution that Ombudsman is authorized to recommend to the appropriateofficial the discipline or prosecution of erring public officials or employees. To make an intelligentdetermination whether to recommend such actions, the Ombudsman has to investigate. In turn, to beexpeditious and efficient, he may need to suspend the respondent.

The need for preventive suspensionmay arise from causes such as: the danger of tampering or destruction of evidence in possession of respondent, intimidation of witnesses, etc. The Ombudsman should be given the discretion to decidewhen the person facing administrative charges should be preventively suspended.2.NO. The questioned order of the Ombudsman was validly issued even without a full-blown hearing andformal presentation of evidence since it was a mere order for preventive suspension.

Ombudsman issuedthe order of preventive suspension only after petitioners had filed their answer to the administrativecomplaint and the “Motion for the Preventive Suspension” of petitioners, which incorporated the chargesin the criminal complain against them, private respondents had filed a reply to the answer of the petitioners, specifying 23 cases of harassment by petitioners to private respondents and preliminaryconference wherein the complaint and the respondents in the administrative case agreed to submit their list of witnesses and documentary evidence.Wherefore, petition was DISMISSED and the status quo ordered to be maintained in the Resolution datedSeptember 22, 1992 is LIFTED and SET ASIDE.

The petition for Certiorari, Prohibition and Mandamus, with Prayer for Preliminary Injunction or Temporary Restraining Order, under Rule 65 of the Revised Rules of Court, seeks to nullify the Order of the Ombudsman directing the preventive suspension of petitioners Dr. Brigida S. Buenaseda et.al. The questioned order was issued in connection with the administrative complaint filed with the Ombudsman (OBM-ADM-0-91-0151) by the private respondents against the petitioners for violation of the Anti-Graft and Corrupt Practices Act.

The Supreme Court required respondent Secretary to comply with the aforestated status quo order. The Solicitor General, in his comment, stated that (a) “The authority of the Ombudsman is only to recommend suspension and he has no direct power to suspend;” and (b) “Assuming the Ombudsman has the power to directly suspend a government official or employee, there are conditions required by law for the exercise of such powers; [and] said conditions have not been met in the instant case” ISSUE:

Whether or not the Ombudsman has the power to suspend government officials and employees working in offices other than the Office of the Ombudsman, pending the investigation of the administrative complaints filed against said officials and employees. HELD:

YES. Petition was dismissed, status quo lifted and set aside. RATIO:
When the constitution vested on the Ombudsman the power “to recommend the suspension” of a public official or employees (Sec. 13 [3]), it referred to “suspension,” as a punitive measure. All the words associated with the word “suspension” in said provision referred to penalties in administrative cases, e.g. removal, demotion, fine, censure. Under the rule of noscitur a sociis, the word “suspension” should be given the same sense as the other words with which it is associated.

Where a particular word is equally susceptible of various meanings, its correct construction may be made specific by considering the company of terms in which it is found or with which it is associated. Section 24 of R.A. No. 6770, which grants the Ombudsman the power to preventively suspend public officials and employees facing administrative charges before him, is a procedural, not a penal statute. The preventive suspension is imposed after compliance with the requisites therein set forth, as an aid in the investigation of the administrative charges.

LASTIMOSA V VASQUEZ

FACTS Petitioner is First Asst. Provincial Prosecutor or Cebu. She and the Provincial Prosecutor refused or failed to file a criminal charge of attempted rape against Municipal Mayor Rogelio Ilustrisimo. Petitioner was filed with an administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime and a charge for indirect contempt. They were also placed under 6 mos preventive suspension. Prior to this, a complaint was assigned to a graft investigation officer who found no prima facie evidence and recommended dismissal.

However, the Ombudsman Vasquex disapproved the recommendation and directed that the Mayor be charged in the RTC. The Deputy Ombudsman for Visayas then referred the matter to the Provincial Prosecutor and later to petitioner. Petitioner found that only acts of lasciviousness have been committed and filed a case under such. ISSUES

W/N the Ombudsman has authority to file an administrative case against the petitioners and preventively suspend them. RULING: YES.The Ombudsman’s power to investigate and prosecute include the investigation and prosecution of any crime committed by a public official regardless if such were related to, or connected with, or arise from, the performance of his official duty.

The Ombudsman is authorized to call on prosecutors for assistance under S31 fo RA 67701. When a prosecutor is deputized, he is subject to supervision and control of the Ombudsman. Such supervision and control would mean that they can alter, repeal or modify findings of their subordinates. The office also has the power to punish for contempt under Rule 71, S3 of the Rules of Court2.

Gloria G. Lastimosa vs Vasquez

Facts

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. The cases were filed with the Office of the Ombudsman -Visayas where they were docketed as OMB-VIS-(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. 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, ” 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. 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.

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. 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. 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. An answer 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) 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. The complaints were based on the alleged refusal of petitionerand 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, 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 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.

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 charges against him are heard and be given an opportunity to prove his innocence. 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 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. II. 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.

Where there is tentativeness of administrative action; wherethe respondent is not precluded from enjoying the right to noticeand hearing at a later time without prejudice to the person affected,such as the summary distraint and levy of the property of adelinquent taxpayer and the replacement of a temporary appointee;

PCGG vs Desierto

Facts:

On October 8, 1992, then President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans (Committee) which was tasked to inventory all behest loans, determine the parties involved and recommend whatever appropriate actions to be pursued thereby.

On November 9, 1992, President Ramos issued Memorandum Order No. 61 expanding the functions of the Committee to include the inventory and review of all non-performing loans, whether behest or non-behest.

The Memorandum set the following criteria to show the earmarks of a “behest loan,” to wit: “a) it is undercollaterized; b) the borrower corporation is undercapitalized; c) a direct or indirect endorsement by high government officials like presence of marginal notes; d) the stockholders, officers or agents of the borrower corporation are identified as cronies; e) a deviation of use of loan proceeds from the purpose intended; f) the use of corporate layering; g) the non-feasibility of the project for which financing is being sought; and, h) the extraordinary speed in which the loan release was made.”

Among the accounts referred to the Committee’s Technical Working Group (TWG) were the loan transactions between NOCOSII and PNB.

After it had examined and studied all the documents relative to the said loan transactions, the Committee classified the loans obtained by NOCOSII from PNB as behest because of NOCOSII’s insufficient capital and inadequate collaterals. Specifically, the Committee’s investigation revealed that in 1975, NOCOSII obtained loans by way of Stand-By Letters of Credit from the PNB; that NOCOSII was able to get 155% loan value from the offered collateral or an excess of 85% from the required percentage limit; that the plant site offered as one of the collaterals was a public land contrary to the General Banking Act; that by virtue of the marginal note of then President Marcos in the letter of Cajelo, NOCOSII was allowed to use the public land as plant site and to dispense with the mortgage requirement of PNB; that NOCOSII’s paid-up capital at the time of the approval of the guaranty was only P2,500,000.00 or only about 6% of its obligation.

Based on the Sworn Statement of PCGG consultant Orlando Salvador, petitioner filed with the Office of the Ombudsman the criminal complaint against respondents. Petitioner alleges that respondents violated the following provisions of Section 3 (e) and (g) of R.A. No. 3019.

The respondents failed to submit any responsive pleading before the Ombudsman, prompting Graft Investigator Officer (GIO) I Melinda S. Diaz-Salcedo to resolve the case based on the available evidence. In a Resolution dated January 12, 1998 in OMB-0-95-0890, GIO Diaz-Salcedo recommended the dismissal of the case on the ground of insufficiency of evidence or lack of probable cause against the respondents and for prescription of the offense. Ombudsman Desierto approved the recommendation on May 21, 1999. Petitioner filed a Motion for Reconsideration but it was denied by GIO Diaz-Salcedo in the Order dated July 9, 1999, which was approved by Ombudsman Desierto on July 23, 1999.

Issue:

Whether respondents violated the following provisions of Sec 3 (e) and (g), specifically corrupt practices of public official, of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act?

Held: On the issue of whether the Ombudsman committed grave abuse of discretion in finding that no probable cause exists against respondents, it must be stressed that the Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsman’s exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. Said exercise of powers is based upon his constitutional mandate and the courts will not interfere in its exercise.

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided to file an information or dismiss a complaint by a private complainant.

While there are certain instances when this Court may intervene in the prosecution of cases, such as, (1) when necessary to afford adequate protection to the constitutional rights of the accused; (2) when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial question which is sub-judice; (4) when the acts of the officer are without or in excess of authority; (5) where the prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) where the court has no jurisdiction over the offense; (8) where it is a case of persecution rather than prosecution; (9) where the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied, none apply here.

After examination of the records and the evidence presented by petitioner, the Court finds no cogent reason to disturb the findings of the Ombudsman.

No grave abuse of discretion can be attributed to the Ombudsman. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The exercise of power must have been done in an arbitrary or despotic manner by reason of passion or personal hostility. It must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.

The herein assailed Orders being supported by substantial evidence, there is no basis for the Court to exercise its supervisory powers over the ruling of the Ombudsman. As long as substantial evidence supports the Ombudsman’s ruling, that decision will not be overturned.

WHEREFORE, the petition is DISMISSED. Except as to prescription, the assailed Resolution dated May 21, 1999 and Order dated July 23, 1999 of the Ombudsman in OMB No. 0-95-0890 are AFFIRMED. No costs. SO ORDERED.

Facts: This case refers to the two consolidated petitions both seeking the disqualificationunder Section 68 of the Omnibus Election Code of Merito Miguel, for the position of municipalmayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18,1988, on the ground that he is a green card holder hence, a permanent resident of theUnited States of America and not of Bolinao. Miguel admits that he holds a green card issuedto him by the US Immigration Service, but he denied that he is a permanent resident of theUnited States.

He argued that he obtained the green card for convenience in order that hemay freely enter the United States for his periodic medical examination and to visit hischildren there and that he is a permanent resident of Bolinao, Pangasinan and that he votedin all previous elections, including the plebiscite on February 2, 1987 for the ratification of the 1987 Constitution and the congressional elections on May 18, 1987. After hearing theconsolidated petitions before it, the COMELEC dismissed the petitions.

It  held that thepossession of a green card by the respondent Miguel does not sufficiently establish that he has abandoned his residence in the Philippines. However, in his dissenting opinion,Commissioner Badoy, Jr. opined that a green card holder being a permanent resident of oran immigrant of a foreign country and respondent having admitted that he is a green cardholder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to provethat he “has waived his status as a permanent resident or immigrant” to be qualified to runfor elected office.

This respondent has not done.Issues:Whether a green card is proof that the holder thereof is a permanent resident of theUnited States such that it would disqualify him to run for any elective local positionHeld: Yes. Miguel’s application for immigrant status and permanent residence in the U.S.and his possession of a green card attesting to such status are conclusive proof that he is apermanent resident of the U.S. Despite his vigorous disclaimer, Miguel’s immigration to theUnited States in 1984 constituted an abandonment of his domicile and residence in thePhilippines. He did not go to the United States merely to visit his children or his doctor there.He entered the US with the intention to live there permanently as evidenced by hisapplication for an immigrant’s (not a visitor’s or tourist’s) visa.

Issue:Whether Merito Miguel, by returning to the Philippines in November 1987 andpresenting himself as a candidate for mayor of Bolinao in the January 18, 1988 localelections, waive his status as a permanent resident or immigrant of the United States

Held:No. The waiver of such immigrant status should be as indubitable as his applicationfor it. Absent clear evidence that he made an irrevocable waiver of that status or that hesurrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, the conclusion is that he was disqualifiedto run for said public office. Hence, his election was null and void.Residence in the municipality where he intends to run for elective office for at leastone (1) year at the time of filing his certificate of candidacy is one of the qualifications that acandidate for elective public office must possess.