Professional Documents
Culture Documents
That branch of public law which fixes the organization and determines
the competence of administrative authorities and indicates to the
individual remedies for the violation of his rights
It is that branch of public law under which the executive department
of the government, acting as a quasi-legislative or quasi-judicial
capacity, interferes with the conduct of the individual for the purpose
of promoting the well-being of the community, as under laws
regulating public interest, professions, trades and callings, rates and
prices, laws for the protection of public health and safety, and the
promotion of public convenience (Dean Roscoe, Growth of
Administrative Law, p. 110).
Public Officer.
The general rule has always been that the power to abolish a public
office is lodged with the legislature [Eugenio v. Civil Service
Commission, 243 SCRA 196 (1995)] This proceeds from the legal
precept that the power to create includes the power to destroy. A
public office is either created by the Constitution, by statute, or by
authority of law. [Cruz, The Law of Public Officers, 1999 Ed., p. 4.]
Thus, except where the office was created by the Constitution itself, it
may be abolished by the same legislature that brought it into
existence. [Cruz, The Law of Public Officers, 1999 Ed., p. 199.]
Nothing is better settled in our laws than that the abolition of an office
within the competence of a legitimate body if done in good faith
suffers from no infirmity. The ponencia of Justice J.B.L. Reyes in
Cruz v. Primicias, Jr. (23 SCRA 998) reiterated such a doctrine. 'We
find this point urged by respondents, to be without merit. No removal
or separation of petitioners from the service is here involved but the
validity of the abolition of their offices. This is a legal issue that is for
the courts to decide. It is a well-known rule also that valid abolition of
offices is neither removal nor separation of the incumbents. And of
course, if the abolition is void, the incumbent is deemed never to
have ceased to hold office....' As well-settled as the rule that the
abolition of an office does not amount to an illegal removal of its
incumbent is the principle that, in order to be valid, the abolition must
be made in good faith.
The principle earlier stated that the case of Jose v. Arroyo, G.R. No.
78435 has been superseded by the Palma-Fernandez v. dela Paz,
160 SCRA 751 (1988) and the Dario v. Mison, et al. (G.R. No. 81954,
August 8, 1989 cases to the effect that after February 2, 1987 civil
service eligibles in the government service enjoy the constitutional
right to security of tenure. The petitioners, therefore, can not be
removed by mere notices of termination, without due notice and
hearing and not knowing the valid grounds for the termination of their
services.
Tañada vs. Tuvera, 146 SCRA 446, G.R. No. L-63915, April 24,
1985
While the general rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he has some private
or particular interest to be subserved, or some particular right to be
protected, independent of that which he holds with the public at
large," and "it is for the public officers exclusively to apply for the writ
when public rights are to be subserved [Mithchell vs. Boardmen, 79
M.e., 469]," nevertheless, "when the question is one of public right
and the object of the mandamus is to procure the enforcement of a
public duty, the people are regarded as the real party in interest and
the relator at whose instigation the proceedings are instituted need
not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the
execution of the laws [High, Extraordinary Legal Remedies, 3rd ed.,
sec. 431].[ Severino vs. Governor General, 16 Phil. 366, 378.]
In a long line of decisions, Camacho vs. Court of Industrial Relations,
80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the
Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills,
Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan,
46 Phil. 179.
• Reorganization
"The general rule has always been that the power to abolish a public
office is lodged with the legislature. This proceeds from the legal
precept that the power to create includes the power to destroy. A
public office is either created by the Constitution, by statute, or by
authority of law. Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that
brought it into existence.
When both intent and scope clearly evidence the idea of a repeal,
then all parts and provisions of the prior act that are omitted from the
revised act are deemed repealed.[People vs. Benuya, 61 Phil. 208
(1916)].Furthermore, before there can be an implied repeal under this
category, it must be the clear intent of the legislature that the later act
be the substitute to the prior act. [Posadas vs. National City Bank,
296 U.S. 497, 80 L. Ed. 351 (1935)]
Cucharo v. Subido, 37 SCRA 523, citing SEC. 35, Civil Service of Act
of 1959; Yarcia v. City of Baguio, 33 SCRA 419; Trocio v. Subido, 20
SCRA 354; Cabigao v. del Rosario, 6 SCRA 578 (1962); Austria v.
Auditor General, 19 SCRA 79, 83-84; Gonzales v. Hernandez, 2
SCRA 228, 233-234
• Next-in-Rank Rule
The Court construed that phrase to mean that the person next in rank
"would be among the first to be considered for the vacancy, if
qualified.
Rule on Promotion
The duty imposed upon the sheriff to execute the writ is ministerial,
not directory. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of the legal authority, without regard to the
exercise of his own judgment.
• Investigatory Power
One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the
means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with
the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individual's rights.
It is no exaggeration to say that a person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as
against the rest of the nation who would deny him that right
(Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
The constitutional issue in the case at bar does not even call for
"justice outside legality," since private respondent's due process
rights, although not guaranteed by statute or by treaty, are protected
by constitutional guarantees. We would not be true to the organic law
of the land if we choose strict construction over guarantees against
the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.
The life blood of the administrative process is the flow of fact, the
gathering, the organization and the analysis of evidence.
(Administrative Law, Jaffe and Nathanson, 1961 ed., 491).
Investigations are useful for all administrative functions, not only for
rule making, adjudication, and licensing, but also for prosecuting, for
supervising and directing, for determining general policy, for
recommending, legislation, and for purposes no more specific than
illuminating obscure areas to find out what if anything should be
done. (Pope & Talbot, Inc. v. Smith, 340 P. 2d 964, citing 1 Davis
Administrative Law Treatise, 160) An administrative agency may be
authorized to make investigations, not only in proceedings of a
legislative or judicial nature, but also in proceedings whose sole
purpose is to obtain information upon which future action of a
legislative or judicial nature may be taken 9 and may require the
attendance of witnesses in proceedings of a purely investigatory
nature. It may conduct general inquiries into evils calling for
correction, and to report findings to appropriate bodies and make
recommendations for actions. (Marchitto v. Waterfront Commission of
New York Harbor, 160 A 2d 832)
One who invokes this provision of the law must first show that he has
"authority to take testimony or evidence" before he can apply to the
courts for the punishment of hostile witnesses.
"Were (sic) do not think the mayor (of Manila) can delegate or confer
the powers to administer oaths, to take testimony, and to issue
subpoenas."
the "complaint" under E.O. No. 292 and CSC rules on administrative
cases "both refer to the actual charge to which the person
complained of is required to answer and indicate whether or not he
elects a formal investigation should his answer be deemed not
satisfactory."
• Quasi-Legislative/Rule-Making Power
Pharmaceutical and Health Care Association of the Philippines vs
Duque, 535 SCRA 265 (2007)
Equi-Asia Placement, Inc. vs. Department of Foreign Affairs, G.R. No.
152214, September 19, 2006:
Where there are two acts or provisions, one of which is special and
particular, and certainly includes the matter in question, and the other
general, which, if standing alone, would include the same matter and
thus conflict with the special act or provision, the special must be
taken as intended to constitute an exception to the general act or
provision, especially when such general and special acts or
provisions are contemporaneous, as the Legislature is not to be
presumed to have intended a conflict. (Crane v. Reeder and Reeder,
22 Mich., 322, 334; University of Utah vs. Richards, 77 Am. St. Rep.,
928.)
On the other hand, Rep. Act No. 1125 is a special law [Mison v.
Natividad, G.R. No. 82586, 11 September 1992, 213 SCRA 734;
Marubeni Corporation v. Commissioner of Internal Revenue, G.R. No.
76573, 14 September 1989, 177 SCRA 500; Papa, et al. v. Mago, et
al., 130 Phil 886 (1968)] dealing with a specific subject matter – the
creation of the CTA, which shall exercise exclusive appellate
jurisdiction over the tax disputes and controversies enumerated
therein.
Even if, for the sake of argument, that P.D. No. 242 should prevail
over Rep. Act No. 1125, the present dispute would still not be
covered by P.D. No. 242. Section 1 of P.D. No. 242 explicitly
provides that only disputes, claims and controversies solely between
or among departments, bureaus, offices, agencies, and
instrumentalities of the National Government, including constitutional
offices or agencies, as well as government-owned and controlled
corporations, shall be administratively settled or adjudicated. While
the BIR is obviously a government bureau, and both PNOC and PNB
are government-owned and controlled corporations, respondent
Savellano is a private citizen. His standing in the controversy could
not be lightly brushed aside. It was private respondent Savellano
who gave the BIR the information that resulted in the investigation of
PNOC and PNB; who requested the BIR Commissioner to reconsider
the compromise agreement in question; and who initiated CTA Case
No. 4249 by filing a Petition for Review.
In case of conflict, the law must prevail, (Wise & Co., Inc. v. Meer, 78
Phil. 655, 676, June 30, 1947) A "regulation adopted pursuant to law
is law." (Macailing v. Andrada, 31 SCRA 126, 139, January 30, 1970)
Conversely, a regulation or any portion thereof not adopted pursuant
to law is no law and has neither the force nor the effect of law. (Banco
Filipino Savings and Mortgage Bank v. Hon. Navarro, 158 SCRA 346,
354, July 28, 1987; andValerio v. Secretary of Agriculture & Natural
Resources, 117 Phil. 729, 733, April 23, 1963)
Where the words of a statute are clear, plain and free from ambiguity,
it must be given its literal meaning and applied without attempted
interpretation." [National Federation of Labor v. NLRC, 383 Phil. 910,
918, March 2, 2000, per De Leon Jr., J. (quotingFianza v. People’s
Law Enforcement Board, 243 SCRA 165, 178, March 31, 1995]
x x x [T]he rule is that on a specific matter the special law shall prevail
over the general law, which shall be resorted to only to supply
deficiencies in the former." (Leyte Asphalt & Mineral Oil Co., Ltd. v.
Block, Johnston & Greenbaum, 52 Phil. 429, 432, December 14,
1928). In addition, "[w]here there are two statutes, the earlier special
and the later general -- the terms of the general broad enough to
include the matter provided for in the special -- the fact that one is
special and the other is general creates a presumption that the
special is to be considered as remaining an exception to the general,
(City Mayor v. The Chief Police Constabulary, 128 Phil. 674, 687,
October 31, 1967) one as a general law of the land, the other as the
law of a particular case." [Manila Railroad Co. v. Rafferty, 40 Phil.
224, 229, September 30, 1919, per Johnson, J. (citing State v. Stoll,
84 US 425, 431, 436, 17 Wall. 425, 431, 436, October term, 1873)] "It
is a canon of statutory construction that a later statute, general in its
terms and not expressly repealing a prior special statute, will
ordinarily not affect the special provisions of such earlier statute."
[Manila Railroad Co. v. Rafferty, 40 Phil. 224, 229, September 30,
1919, per Johnson, J. (citing Minnesota v. Hitchcock, 185 US, 373,
396-397, 22 S.Ct. 650, 659, May 5, 1902, Cass County v. Gillett, 100
US 585, 593, 10 Otto 585, 593, October term, 1879; and New Jersey
Steamboat Co. v. Collector, 85 US 478, 490-491, 18 Wall 478, 490-
491, October term, 1873)]
The "Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial
departments of the government." [Angara v. Electoral Commission,
63 Phil. 139, 158 (1936)].To the legislative branch of government,
through Congress, (Section 1, Article VI, 1987 Constitution) belongs
the power to make laws; to the executive branch of government,
through the President, (Section 1, Article VII, 1987 Constitution)
belongs the power to enforce laws; and to the judicial branch of
government, through the Court, (Section 1, Article VIII, 1987
Constitution) belongs the power to interpret laws.
The basic postulate enshrined in the constitution that ‘(t)he State may
not be sued without its consent,’ reflects nothing less than a
recognition of the sovereign character of the State and an express
affirmation of the unwritten rule effectively insulating it from the
jurisdiction of courts. It is based on the very essence of sovereignty. x
x x [A] sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical ground
that there can be no legal right as against the authority that makes
the law on which the right depends. True, the doctrine, not too
infrequently, is derisively called ‘the royal prerogative of dishonesty’
because it grants the state the prerogative to defeat any legitimate
claim against it by simply invoking its non-suability. We have had
occasion to explain in its defense, however, that a continued
adherence to the doctrine of non-suability cannot be deplored, for the
loss of governmental efficiency and the obstacle to the performance
of its multifarious functions would be far greater in severity than the
inconvenience that may be caused private parties, if such
fundamental principle is to be abandoned and the availability of
judicial remedy is not to be accordingly restricted.
The rule, in any case, is not really absolute for it does not say that the
state may not be sued under any circumstance. On the contrary, as
correctly phrased, the doctrine only conveys, ‘the state may not be
sued without its consent;’ its clear import then is that the State may at
times be sued. The State’s consent may be given either expressly or
impliedly. Express consent may be made through a general law or a
special law. x x x Implied consent, on the other hand, is conceded
when the State itself commences litigation, thus opening itself to a
counterclaim or when it enters into a contract. In this situation, the
government is deemed to have descended to the level of the other
contracting party and to have divested itself of its sovereign immunity.
This rule, x x x is not, however, without qualification. Not all contracts
entered into by the government operate as a waiver of its non-
suability; distinction must still be made between one which is
executed in the exercise of its sovereign function and another which
is done in its proprietary capacity
x x x The doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law
that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice
and in bad faith, or beyond the scope of his authority or jurisdiction.
Moreover, "[t]he rule is that if the judgment against such officials will
require the state itself to perform an affirmative act to satisfy the
same, such as the appropriation of the amount needed to pay the
damages awarded against them, the suit must be regarded as
against the state x x x. In such a situation, the state may move to
dismiss the [C]omplaint on the ground that it has been filed without its
consent."
It has long been a settled rule that the government is not bound by
the errors committed by its agents. Estoppel does not also lie against
the government or any of its agencies arising from unauthorized or
illegal acts of public officers.
Caltex Philippines v. COA, G.R. No. 92585, May 8, 1992, 208 SCRA
726
CIR v. CTA, G.R. No. 106611, July 21, 1994, 243 SCRA 348
Carpio vs. Executive Secretary, G.R. No. 96409 February 14, 1992
• Three-fold responsibility/liability
Indeed, the dismissal of an administrative case does not bar the filing
of a criminal prosecution for the same or similar acts subject of the
administrative complaint. Neither does the disposition in one case
inevitably govern the resolution of the other case/s and vice versa.
Administrative liability is one thing; criminal liability for the same act is
another. (Paredes v. Sandiganbayan, CA, G.R. No. 108251, January
31, 1996)
The distinct and independent nature of one proceeding from the other
can be attributed to the following: first, the difference in the quantum
of evidence required and, correlatively, the procedure observed and
sanctions imposed; and second, the principle that a single act may
offend against two or more distinct and related provisions of law, or
that the same act may give rise to criminal as well as administrative
liability.
Judicial Review
The doctrine of primary jurisdiction holds that if a case is such that its
determination requires the expertise, specialized training and
knowledge of the proper administrative bodies, relief must first be
obtained in an administrative proceeding before a remedy is supplied
by the courts even if the matter may well be within their proper
jurisdiction. [Industrial Enterprises, Inc. v. Court of Appeals, 263 Phil.
352, 358 (1990)]
The court may raise the issue of primary jurisdiction sua sponte and
its invocation cannot be waived by the failure of the parties to argue it
as the doctrine exists for the proper distribution of power between
judicial and administrative bodies and not for the convenience of the
parties. [Euro-Med Laboratories Phil., Inc. v. Province of Batangas,
527 Phil. 627-629 (2006)]
All the proceedings of the court in violation of the doctrine and all
orders and decisions rendered thereby are null and void. [Agra v.
Commission on Audit, G.R. No. 167807, December 6, 2011, 661
SCRA 563, 582]
It may not be amiss to reiterate the prevailing rule that the doctrine of
primary jurisdiction applies where a claim is originally cognizable in
the courts and comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme,
has been placed within the special competence of an administrative
agency.9 In such a case, the court in which the claim is sought to be
enforced may suspend the judicial process pending referral of such
issues to the administrative body for its view or, if the parties would
not be unfairly disadvantaged, dismiss the case without prejudice.
[Rosito Bagunu v. Spouses Francisco Aggabao and Rosenda Acerit,
G.R. No. 186487, August 15, 2011; Phil Pharmawealth, Inc. v. Pfizer,
Inc. and Pfizer (Phil.) Inc., G.R. No. 167715, November 17, 2010, 635
SCRA 140, 153; Euro-Med Laboratories Phil., Inc. v. The Province of
Batangas, G.R. No. 148106, July 17, 2006, 495 SCRA 301, 305]
The Civil Service Commission vs. Henry A. Sojor, G.R. No. 168766,
May 22, 2008
The Constitution grants to the CSC administration over the entire civil
service. (Constitution (1987), Art. IX(B), Sec. 1)
The Civil Service Law (PD 807) expressly vests in the Commission
appellate jurisdiction in administrative disciplinary cases involving
members of the Civil Service. Section 9(j) mandates that the
Commission shall have the power to "hear and decide administrative
disciplinary cases instituted directly with it in accordance with Section
37 or brought to it on appeal." And Section 37(a) provides that, "The
Commission shall decide upon appeal all administrative disciplinary
cases involving the imposition of a penalty of suspension for more
than thirty (30) days, or fine in an amount exceeding thirty days’
salary, demotion in rank or salary or transfer, removal or dismissal
from office." (Emphasis supplied)
Camacho v. Gloria, G.R. No. 138862, August 15, 2003, 409 SCRA
174.
The doctrine this Court laid down in Salalima v. Guingona, Jr. (G.R.
Nos. 117589-92, May 22, 1996, 257 SCRA 55) and Aguinaldo v.
Santos (G.R. No. 94115, August 21, 1992, 212 SCRA 768) are
inapplicable to the present circumstances. Respondents in the
mentioned cases are elective officials, unlike respondent here who is
an appointed official. Indeed, election expresses the sovereign will of
the people. (People v. Jalosjos, G.R. Nos. 132875-76, February 3,
2000, 381 SCRA 690) Under the principle of vox populi est suprema
lex, the re-election of a public official may, indeed, supersede a
pending administrative case. The same cannot be said of a re-
appointment to a non-career position. There is no sovereign will of
the people to speak of when the BOR re-appointed respondent Sojor
to the post of university president.
• Misconduct
Rolando Ganzon vs. Fernando Arlos, G.R. No. 174321, October 22,
2013
It must be stressed that like other grave offenses classified under the
Civil Service laws, bad faith must attend the act complained of. Bad
faith connotes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some
motive or intent or ill will; it partakes of the nature of fraud. [Andrade
v. Court of Appeals, 423 Phil. 30, 43 (2001)]
in administrative cases, to be disciplined for grave misconduct or any
grave offense, the evidence against the respondent should be
competent and must be derived from direct knowledge. [Litonjua v.
Justices Enriquez, Jr. and Abesamis, 482 Phil. 73, 100-101 (2004)]
• Neglect of Duty
As used in this Section, the word "relative" and members of the family
referred to are those related within the third degree either of
consanguinity or of affinity. (Sec. 59, Executive Order 292, dated July
25, 1987)
Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending
authority is. To constitute a violation of the law, it suffices that an
appointment is extended or issued in favor of a relative within the
third civil degree of consanguinity or affinity of the chief of the bureau
or office, or the person exercising immediate supervision over the
appointee.
However, the government party that can appeal is not the disciplining
authority or tribunal which previously heard the case and imposed the
penalty of demotion or dismissal from the service. The government
party appealing must be one that is prosecuting the administrative
case against the respondent. Otherwise, an anomalous situation will
result where the disciplining authority or tribunal hearing the case,
instead of being impartial and detached, becomes an active
participant in prosecuting the respondent.
We conclude that petitioner was denied the due process of law and
that not even the fact that the charge against him is serious and
evidence of his guilt is – in the opinion of his superiors – strong can
compensate for the procedural shortcut evident in the record of this
case. It is precisely in cases such as this that the utmost care be
exercised lest in the drive to clean up the ranks of the police those
who are innocent are denied justice or, through blunder, those who
are guilty are allowed to escape punishment.
The Court settled that the one and only Philippine police force, the
PNP, shall be civilian in character (Section 6, Article XVI of the
Constitution) and, consequently, falls under the civil service pursuant
to Section 2(1), Article IX-B of the Constitution, which states:
SEC. 91. Application of Civil Service Laws. – The Civil Service Law
and its implementing rules and regulations shall apply to all personnel
of the Department [DILG].
Footnotes
* In a resolution dated March 24, 1999, the Court
dismissed the petition against Rosauro Torralba who died
in December 1997. The resolution became final and
executory on June 10, 1999. Entry of judgment was
accordingly made on the same day.
** Respondent died on April 23, 1999 per certified true
copy of his death certificate furnished by his counsel.
Rollo, p. 220.
1
Approved on August 17, 1960.
2
Rollo, pp. 20-24.
3
Hon. Juan M. Hagad.
4
GSIS converted PAL's outstanding loans into equity
shares.
5
230 Phil. 232 (1986). In this case, the Philippine
National Oil Corporation (PNOC) acquired PETROPHIL, a
private corporation. Here, the Court declared that
PETROPHIL shed off its private status and became a
subsidiary of PNOC. Its officers, who were then accused
of violating the Anti-Graft and Corrupt Practices Act (RA
3019), were considered "public officers" under the
jurisdiction of the Tanodbayan (now Ombudsman).
6
Supra at note 1.
7
Rollo, pp. 25-29. Issued by Marilou Ancheta-Mejica,
Graft Investigation Officer I, as approved by then
Ombudsman Aniano A. Desierto.
8
Id., p. 5.
9
343 Phil. 307 (1997).
10
Supra at note 5.
11
Id.
12
See Juco, supra at note 9.
13
Public officials include elective and appointive officials
and employees, permanent or temporary, whether in the
career and non-career service, including military and
police personnel whether or not they receive
compensation, regardless of amount. (Section 2[b], RA
6713 [Code of Conduct and Standards for Public
Officials]).
Public officer is any person holding any public office in the
Government of the Republic of the Philippines by virtue of
an appointment, election or contract. (Section 1[a], RA
7080 [Act Defining and Penalizing the Crime of Plunder]).
Public officers include elective and appointive officials and
employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving
compensation, even nominal, from the government x x x
(Section 2[b], RA 3019 [Anti-Graft and Corrupt Practices
Act]).
Any person who, by direct provision of law, popular
election or appointment by competent authority, shall take
part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in
the said Government or any of its branches public duties
as an employee, agent or subordinate official, of any rank
or class, shall be deemed to be a public officer. (Article
203, Revised Penal Code).
14
The term includes only persons who perform some of
the functions of the Government of the Philippine Islands.
(U.S. v. Smith, 39 Phil. 537 [1919]).
One who has a duty to perform concerning the public; and
he is not less a public officer when his duty is confined to
narrow limits, because it is his duty and its nature which
makes him a public officer and not the extent of his
authority. (Manila Terminal Co. v. CIR, 83 Phil. 567
[1949]).
15
430 Phil. 658 (2002).
16
Id., pp. 672-673. Citing F.R. MECHEM, A TREATISE
ON THE LAW OF PUBLIC OFFICES AND OFFICERS, §
1.
17
Supra.
Notes:
Quimpo v. Tanodbayan
EN BANC
G.R. No. 72553 December 2, 1986
MELENCIO-HERRERA, J.:
This Petition for certiorari address itself to the pivotal issue of whether
or not PETROPHIL Corporation, a subsidiary of the Philippine
National Oil Company (PNOC), is a government-owned or controlled
corporation, whose employees fall under Tanodbayan jurisdiction.
The former Tanodbayan, in a Decision dated March 15, 1985, in TBP
Case No. 84-01422 entitled "Felicito R. Quimpo vs. Greg Dimaano
and Danny F. Remo" disowned its jurisdiction, a view shared by
private respondents.
However, the incumbent Solicitor General, concurred in by the
present Tanodbayan, and by petitioner, uphold the Tanodbayan
jurisdiction.
The factual antecedents are aptly summarized as follows:
On July 17, 1984, petitioner filed with respondent
Tanodbayan a complaint against private
respondents for violation of Republic Act No. 3091
(Anti- Graft and Corrupt Practices Act) approved on
August 17, 1960.
Petitioner alleged that Admiral Adjusters and
Surveyors, Inc. (AASI), of which he was the
president, was engaged by Petrophil Corporation to
render survey services for one (1) year from March
1, 1982 to February 28, 1983; that upon the
expiration of the contract, it was renewed for
another period of one (1) year, from March 1, 1983
to February 2, 1984; that sometime in October,
1983, private respondents Greg Dimaano and
Danny Remo, as manager and analyst,
respectively, of the Bulk Distribution Department
and MPED of Petrophil Corporation, caused the
withholding of the fees due AASI and required AASI
to submit an explanation of the losses caused by
leaking valves as reflected in ASSI's survey reports;
that despite AASI's explanation, private
respondents still refused to release the payments
and even threatened to forfeit AASI's performance
bond and claim damages and losses from AASI;
that despite AASI's submission of several
explanations, private respondents refused to
release the fees amounting to P147,300.00.
Petitioner further alleged that private respondents
favored Greater Marine Cargo Surveyors to enable
it to win the bidding in January 1984. 1
Private respondents moved to dismiss the Complaint alleging lack of
jurisdiction of the Tanodbayan, which Motion was opposed by the
petitioner.
On March 15, 1985, the Tanodbayan issued his questioned Decision
maintaining that he had no jurisdiction over government-owned or
controlled corporations created under the Corporation Law. He relied
on Opinion No. 62, Series of 1976 of then Secretary of Justice,
Vicente Abad Santos, holding that when Section 6, Article XIII of the
1973 Constitution mentions "government-owned or controlled
corporations," "the intent is only to those created by special law."
Petitioner's Motion for Reconsideration of said Decision was denied
by the Tanodbayan on October 7, 1985, hence, this Petition for
Certiorari, to which we gave due course.
Sections 5 and 6, Article XIII of the 1975 Constitution, on the
Sandiganbayan and Tanodbayan, adopted in the so-called Freedom
Constitution, provide:
SEC. 5. The Batasang Pambansa shall create a
special court, to be known as Sandiganbayan,
which shall have jurisdiction over criminal and civil
case involving graft and corrupt practices and such
other offenses committed by public officers and
employees, including those in government-owned or
controlled corporations, in relation to their office as
may be determined by law.
SEC. 6. The Batasang Pambansa shall create an
office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate
complaints relative to public office, including those
in government-owned or controlled corporations,
make appropriate recommendations, and in case of
failure of justice as defined by law, file and
prosecute the corresponding criminal civil or
administrative case before the proper court or body.
(emphasis supplied).
Sections 10(a) and (f) of Presidential Decree No. 1630 also
enumerate the powers of the Tanodbayan thus:
SEC. 10. Powers. — The Tanod bayan shall have
the following powers:
(a) He may investigate, on complaint by any person
or on his own motion or initiative, any administrative
act whether amounting to any criminal offense or
not of any administrative agency including any
government owned or controlled corporation;
xxx xxx xxx
(f) He may file and prosecute civil and
administrative cases involving graft and corrupt
practices and such other offenses committed by
public officers and employees, including those in
govemment-owned or controlled corporations, in
relation to their office; (Emphasis
supplied).<äre||anº•1àw>
So does the definition of "Government" in Section 2(a) of the Anti-
Graft and Corrupt Practices Act include government corporations:
Sec. 2. Definition of terms. — (a) 'Government'
includes the national government, the local
governments, the govemment-owned and controlled
corporations, and an other instrumentalities or
agencies of the Republic of the Philippines and their
branches. (Emphasis supplied)
Evident is the intent to include employees of government-owned or
controlled corporations within the jurisdiction of the Tanodbayan and
the Sandiganbayan.
Is PETROPHIL a government-owned or controlled corporation whose
employees fall within the jurisdictional purview of the Tanodbayan for
purposes of the Anti-Graft and Corrupt Practices Act?
We uphold the Tanodbayan jurisdiction.
It has to be conceded that PETROPHIL was not created by special
law. As the incumbent Solicitor General has pointed out, it was
originally created as a private corporation under the Corporation Law
with the name Standard Vacuum Oil Company (STANVAC).
STANVAC was taken over by Esso Philippines, which was, in turn
bought by Esso Eastern Standard. Eventually, Esso Eastern
Standard was purchased by the Philippine National Oil Corporation
(PNOC), and its corporate name was changed to Petrophil
Corporation.
While it may be that PETROPHIL was not originally "created" as a
government-owned or controlled corporation, after it was acquired by
PNOC, which is a government-owned or controlled corporation,
PETROPHIL became a subsidiary of PNOC and thus shed-off its
private status. It is now funded and owned by the government as, in
fact, it was acquired to perform functions related to government
programs and policies on oil a vital commodity in the economic life of
the nation. It was acquired not temporarily but as a permanent
adjunct to perform essential government or government-related
functions, as the marketing arm of PNOC to assist the latter in selling
and distributing oil and petroleum products to assure and maintain an
adequate and stable domestic supply.
lt should make no substantial difference that it was not originally
"created" as a government-owned or controlled corporation. What is
decisive is that it has since been acquired by the Government to
perform functions related to government programs and policies on oil.
Opinion No. 62, Series of 1976 of the then Secretary of Justice must
be deemed superseded by the doctrine laid down by this Court en
banc, in the case of National Housing vs. Juco, 2 in pari materia to the
case at bar, which held that
for purposes of coverage in the Civil Service,
employees of government-owned or controlled
corporation whether created by special law or
formed as subsidiaries are covered by the Civil
Service Law, not the Labor Code, and the fact that
private corporations owned or controlled by the
government may be created by special charter does
not mean that such corporation not created by
special law are not covered by the Civil Service.
The meaning thus given to "government-owned or controlled
corporations" for purposes of the civil service provision should
likewise apply for purposes of the Tanodbayan and Sandiganbayan
provisions, otherwise, incongruity would result, and a government-
owned corporation could create as many subsidiary corporations
under the Corporation Code as it wishes, which would then be free
from strict accountability and could escape the liabilities and
responsibilities provided for by law. This device was liberally made
use of during the past regime to the detriment of budgetary restraints
and of fiscal accountability by "private" corporations thus created. As
well explained in the National Housing case:
The infirmity of the respondents' position lies in its
permitting a circumvention or emasculation of
Section I, Article XII-B of the Constitution. It would
be possible for a regular ministry of government to
create a host of subsidiary corporations under the
Corporation Code funded by a willing legislature. A
government-owned corporation could create several
subsidiary corporations. These subsidiary
corporations would enjoy the best of two worlds.
Their officials and employees would be privileged
individuals, free from the strict accountability
required by the Civil Service Decree and the
regulations of the Commission on Audit. Their
income would not be subject to the competitive
restraints of the open market not to the terms and
conditions of civil service employment. Conceivably,
all government-owned or controlled corporations
could be created, no longer by special charters, but
through incorporation under the general law. The
constitutional amendment including such
corporations in the embrace of the civil service
would cease to have application Certainly, such a
situation cannot be allowed to exist. (NHC vs.
NLRC, p. 8)
It is true that the National Housing case held that the Decision therein
"refers to a corporation created as a government-owned or controlled
entity and does not cover cases involving private firms taken over by
the government in foreclosure or similar proceedings" judgment on
which is reserved "until the appropriate controversy is brought to the
Court." In the case of PETROPHIL, however, it is clear that it was
acquired by purchase precisely, as explained above, to assist a
government-owned or controlled corporation, the PNOC, in the
performance of its government-related functions. the acquisition was
not simply to recover the government's financial exposure as in
"foreclosure or similar proceedings."
Private respondents allege, however, that PETROPHII, is possessed
of unique characteristics that endow it with all the vestiges of a
private corporation, such as (1) its employees are not members of the
Government Service Insurance System but of the Social Security
System, which covers private corporations; (2) they are covered by
the Labor Code and other labor laws and not by civil service rules; (3)
PETROPHIL was never created pursuant to the express provisions of
the PNOC charter; and (4) it is engaged in the highly competitive
business of petroleum distribution/retail and its operation is profit-
oriented. Assuming these to be so, they are internal matters not
determinative of its real corporate classification. Besides, its
exclusion from GSIS coverage is not by virtue of its private character
but by operation of law pursuant to Section 15 of P.D. No. 405,
amending the PNOC charter, specifically providing that, "PNOC
subsidiaries organized to undertake purely business ventures shall
not, as a matter of right, be subject to the provisions of the
Government Service Insurance System, as provided for under R.A.
No. 186, as amended, as well as to any law, executive orders and
decrees relating to leave of absences, retirement privileges, regular
working hours, and other government employee benefits." And even
granting that it is profit-oriented, the fact remains that it was acquired
with capital belonging to the Government and Govern ment money is
utilized in its operations.
In other words, there can be no gainsaying that as of the date of its
acquisition by the Government utilizing public funds, PETROPHIL,
while retaining its own corporate existence, became a government-
owned or controlled corporation within the Constitutional precept. Its
employees, therefore, are public servants falling within the
investigatory and prosecutory jurisdiction of the Tanodbayan for
purposes of the Anti-Graft & Corrupt Practices Act.
Otherwise, a major policy of Government, which is to eradicate, or at
the very least minimize, the graft and corruption that has permeated
the fabric of the public service, like a malignant social cancer, would
be seriously undermined. In fact, section 1 of the Anti-Graft and
Corrupt Practices Act seeks to repress not only certain acts of public
officers but also of "private persons alike, which constitute graft or
corrupt practices or which may lead thereto,
WHEREFORE, judgment is hereby rendered setting aside the
Tanodbayan Decision, dated March 15, 1985, and its Order of
October 7, 1985, and requiring the incumbent Tanodbayan to
investigate and act on petitioner's complaint against private
respondents Greg Dimaano and Danny Remo. No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay, Gutierrez,
Jr., Cruz, Paras and Feliciano, JJ., concur.
Footnotes
1 pp. 1-2, Comment of Solicitor General.
2 134 SCRA 172 [1985].
Notes:
Eugenio v. CSC
EN BANC
PUNO, J.:
The power of the Civil Service Commission to abolish the Career
Executive Service Board is challenged in this petition for certiorari
and prohibition.
First the facts. Petitioner is the Deputy Director of the Philippine
Nuclear Research Institute. She applied for a Career Executive
Service (CES) Eligibility and a CESO rank on August 2, 1993, she
was given a CES eligibility. On September 15, 1993, she was
recommended to the President for a CESO rank by the Career
Executive Service Board. 1
All was not to turn well for petitioner. On October 1, 1993, respondent
Civil Service Commission2 passed Resolution No. 93-4359, viz:
RESOLUTION NO. 93-4359
WHEREAS, Section 1(1) of Article IX-B provides
that Civil Service shall be administered by the Civil
Service Commission, . . .;
WHEREAS, Section 3, Article IX-B of the 1987
Philippine Constitution provides that "The Civil
Service Commission, as the central personnel
agency of the government, is mandated to establish
a career service and adopt measures to promote
morale, efficiency, integrity, responsiveness,
progresiveness and courtesy in the civil service, . .
.";
WHEREAS, Section 12 (1), Title I, Subtitle A, Book
V of the Administrative Code of 1987 grants the
Commission the power, among others, to administer
and enforce the constitutional and statutory
provisions on the merit system for all levels and
ranks in the Civil Service;
WHEREAS, Section 7, Title I, Subtitle A, Book V of
the Administrative Code of 1987 Provides, among
others, that The Career Service shall be
characterized by (1) entrance based on merit and
fitness to be determined as far as practicable by
competitive examination, or based highly technical
qualifications; (2) opportunity for advancement to
higher career positions; and (3) security of tenure;
WHEREAS, Section 8 (c), Title I, Subtitle A, Book V
of the administrative Code of 1987 provides that
"The third level shall cover Positions in the Career
Executive Service";
WHEREAS, the Commission recognizes the
imperative need to consolidate, integrate and unify
the administration of all levels of positions in the
career service.
WHEREAS, the provisions of Section 17, Title I,
Subtitle A. Book V of the Administrative Code of
1987 confers on the Commission the power and
authority to effect changes in its organization as the
need arises.
WHEREAS, Section 5, Article IX-A of the
Constitution provides that the Civil Service
Commission shall enjoy fiscal autonomy and the
necessary implications thereof;
NOW THEREFORE, foregoing premises
considered, the Civil Service Commission hereby
resolves to streamline reorganize and effect
changes in its organizational structure. Pursuant
thereto, the Career Executive Service Board, shall
now be known as the Office for Career Executive
Service of the Civil Service Commission.
Accordingly, the existing personnel, budget,
properties and equipment of the Career Executive
Service Board shall now form part of the Office for
Career Executive Service.
The above resolution became an impediment. to the appointment of
petitioner as Civil Service Officer, Rank IV. In a letter to petitioner,
dated June 7, 1994, the Honorable Antonio T. Carpio, Chief
Presidential legal Counsel, stated:
xxx xxx xxx
On 1 October 1993 the Civil Service Commission
issued CSC Resolution No. 93-4359 which
abolished the Career Executive Service Board.
Several legal issues have arisen as a result of the
issuance of CSC Resolution No. 93-4359, including
whether the Civil Service Commission has authority
to abolish the Career Executive Service Board.
Because these issues remain unresolved, the Office
of the President has refrained from considering
appointments of career service eligibles to career
executive ranks.
xxx xxx xxx
You may, however, bring a case before the
appropriate court to settle the legal issues arising
from issuance by the Civil Service Commission of
CSC Resolution No. 93-4359, for guidance of all
concerned.
Thank You.
Finding herself bereft of further administrative relief as the Career
Executive Service Board which recommended her CESO Rank IV
has been abolished, petitioner filed the petition at bench to annul,
among others, resolution No. 93-4359. The petition is anchored on
the following arguments:
A.
IN VIOLATION OF THE CONSTITUTION,
RESPONDENT COMMISSION USURPED THE
LEGISLATIVE FUNCTIONS OF CONGRESS
WHEN IT ABOLISHED THE CESB, AN OFFICE
CREATED BY LAW, THROUGH THE ISSUANCE
OF CSC: RESOLUTION NO. 93-4359;
B.
ALSO IN VIOLATION OF THE CONSTITUTION,
RESPONDENT CSC USURPED THE
LEGISLATIVE FUNCTIONS OF CONGRESS
WHEN IT ILLEGALLY AUTHORIZED THE
TRANSFER OF PUBLIC MONEY, THROUGH THE
ISSUANCE OF CSC RESOLUTION NO. 93-4359.
Required to file its Comment, the Solicitor General agreed with the
contentions of petitioner. Respondent Commission, however, chose
to defend its ground. It posited the following position:
ARGUMENTS FOR PUBLIC RESPONDENT-CSC
I. THE INSTANT PETITION STATES NO CAUSE
OF ACTION AGAINST THE PUBLIC
RESPONDENT-CSC.
II. THE RECOMMENDATION SUBMITTED TO THE
PRESIDENT FOR APPOINTMENT TO A CESO
RANK OF PETITIONER EUGENIO WAS A VALID
ACT OF THE CAREER EXECUTIVE SERVICE
BOARD OF THE CIVIL SERVICE COMMISSION
AND IT DOES NOT HAVE ANY DEFECT.
III. THE OFFICE OF THE PRESIDENT IS
ESTOPPED FROM QUESTIONING THE VALIDITY
OF THE RECOMMENDATION OF THE CESB IN
FAVOR OF PETITIONER EUGENIO SINCE THE
PRESIDENT HAS PREVIOUSLY APPOINTED TO
CESO RANK FOUR (4) OFFICIALS SIMILARLY
SITUATED AS SAID PETITIONER.
FURTHERMORE, LACK OF MEMBERS TO
CONSTITUTE A QUORUM. ASSUMING THERE
WAS NO QUORUM, IS NOT THE FAULT OF
PUBLIC RESPONDENT CIVIL SERVICE
COMMISSION BUT OF THE PRESIDENT WHO
HAS THE POWER TO APPOINT THE OTHER
MEMBERS OF THE CESB.
IV. THE INTEGRATION OF THE CESB INTO THE
COMMISSION IS AUTHORIZED BY LAW (Sec. 12
(1), Title I, Subtitle A, Book V of the Administrative
Code of the 1987). THIS PARTICULAR ISSUE HAD
ALREADY BEEN SETTLED WHEN THE
HONORABLE COURT DISMISSED THE PETITION
FILED BY THE HONORABLE MEMBERS OF THE
HOUSE OF REPRESENTATIVES, NAMELY:
SIMEON A. DATUMANONG, FELICIANO R.
BELMONTE, JR., RENATO V. DIAZ, AND
MANUEL M. GARCIA IN G.R. NO. 114380. THE
AFOREMENTIONED PETITIONERS ALSO
QUESTIONED THE INTEGRATION OF THE CESB
WITH THE COMMISSION.
We find merit in the petition.3
The controlling fact is that the Career Executive Service Board
(CESB) was created in the Presidential Decree (P.D.) No. 1 on
September 1, 19744 which adopted the Integrated Plan. Article IV,
Chapter I, Part of the III of the said Plan provides:
Article IV — Career Executive Service
1. A Career Executive Service is created to form a
continuing pool of well-selected and development
oriented career administrators who shall provide
competent and faithful service.
2. A Career Executive Service hereinafter referred
to in this Chapter as the Board, is created to serve
as the governing body of the Career Executive
Service. The Board shall consist of the Chairman of
the Civil Service Commission as presiding officer,
the Executive Secretary and the Commissioner of
the Budget as ex-officio members and two other
members from the private sector and/or the
academic community who are familiar with the
principles and methods of personnel administration.
xxx xxx xxx
5. The Board shall promulgate rules, standards and
procedures on the selection, classification,
compensation and career development of members
of the Career Executive Service. The Board shall
set up the organization and operation of the service.
(Emphasis supplied)
It cannot be disputed, therefore, that as the CESB was created by
law, it can only be abolished by the legislature. This follows an
unbroken stream of rulings that the creation and abolition of public
offices is primarily a legislative function. As aptly summed up in AM
JUR 2d on Public Officers and
Employees, 5 viz:
Except for such offices as are created by the
Constitution, the creation of public offices is
primarily a legislative function. In so far as the
legislative power in this respect is not restricted by
constitutional provisions, it supreme, and the
legislature may decide for itself what offices are
suitable, necessary, or convenient. When in the
exigencies of government it is necessary to create
and define duties, the legislative department has the
discretion to determine whether additional offices
shall be created, or whether these duties shall be
attached to and become ex-officio duties of existing
offices. An office created by the legislature is wholly
within the power of that body, and it may prescribe
the mode of filling the office and the powers and
duties of the incumbent, and if it sees fit, abolish the
office.
In the petition at bench, the legislature has not enacted any law
authorizing the abolition of the CESB. On the contrary, in all the
General Appropriations Acts from 1975 to 1993, the legislature has
set aside funds for the operation of CESB. Respondent Commission,
however, invokes Section 17, Chapter 3, Subtitle A. Title I, Book V of
the Administrative Code of 1987 as the source of its power to abolish
the CESB. Section 17 provides:
Sec. 17. Organizational Structure. — Each office of
the Commission shall be headed by a Director with
at least one Assistant Director, and may have such
divisions as are necessary independent
constitutional body, the Commission may effect
changes in the organization as the need arises.
But as well pointed out by petitioner and the Solicitor General,
Section 17 must be read together with Section 16 of the said Code
which enumerates the offices under the respondent Commission, viz:
Sec. 16. Offices in the Commission. — The
Commission shall have the following offices:
(1) The Office of the Executive Director headed by
an Executive Director, with a Deputy Executive
Director shall implement policies, standards, rules
and regulations promulgated by the Commission;
coordinate the programs of the offices of the
Commission and render periodic reports on their
operations, and perform such other functions as
may be assigned by the Commission.
(2) The Merit System Protection Board composed of
a Chairman and two (2) members shall have the
following functions:
xxx xxx xxx
(3) The Office of Legal Affairs shall provide the
Chairman with legal advice and assistance; render
counselling services; undertake legal studies and
researches; prepare opinions and ruling in the
interpretation and application of the Civil Service
law, rules and regulations; prosecute violations of
such law, rules and regulations; and represent the
Commission before any court or tribunal.
(4) The Office of Planning and Management shall
formulate development plans, programs and
projects; undertake research and studies on the
different aspects of public personnel management;
administer management improvement programs;
and provide fiscal and budgetary services.
(5) The Central Administrative Office shall provide
the Commission with personnel, financial, logistics
and other basic support services.
(6) The Office of Central Personnel Records shall
formulate and implement policies, standards, rules
and regulations pertaining to personnel records
maintenance, security, control and disposal; provide
storage and extension services; and provide and
maintain library services.
(7) The Office of Position Classification and
Compensation shall formulate and implement
policies, standards, rules and regulations relative to
the administration of position classification and
compensation.
(8) The Office of Recruitment, Examination and
Placement shall provide leadership and assistance
in developing and implementing the overall
Commission programs relating to recruitment,
execution and placement, and formulate policies,
standards, rules and regulations for the proper
implementation of the Commission's examination
and placement programs.
(9) The Office of Career Systems and Standards
shall provide leadership and assistance in the
formulation and evaluation of personnel systems
and standards relative to performance appraisal,
merit promotion, and employee incentive benefit
and awards.
(10) The Office of Human Resource Development
shall provide leadership and assistance in the
development and retention of qualified and efficient
work force in the Civil Service; formulate standards
for training and staff development; administer
service-wide scholarship programs; develop training
literature and materials; coordinate and integrate all
training activities and evaluate training programs.
(11) The Office of Personnel Inspection and Audit
shall develop policies, standards, rules and
regulations for the effective conduct or inspection
and audit personnel and personnel management
programs and the exercise of delegated authority;
provide technical and advisory services to Civil
Service Regional Offices and government agencies
in the implementation of their personnel programs
and evaluation systems.
(12) The Office of Personnel Relations shall provide
leadership and assistance in the development and
implementation of policies, standards, rules and
regulations in the accreditation of employee
associations or organizations and in the adjustment
and settlement of employee grievances and
management of employee disputes.
(13) The Office of Corporate Affairs shall formulate
and implement policies, standards, rules and
regulations governing corporate officials and
employees in the areas of recruitment, examination,
placement, career development, merit and awards
systems, position classification and compensation,
performing appraisal, employee welfare and benefit,
discipline and other aspects of personnel
management on the basis of comparable industry
practices.
(14) The Office of Retirement Administration shall
be responsible for the enforcement of the
constitutional and statutory provisions, relative to
retirement and the regulation for the effective
implementation of the retirement of government
officials and employees.
(15) The Regional and Field Offices. — The
Commission shall have not less than thirteen (13)
Regional offices each to be headed by a Director,
and such field offices as may be needed, each to be
headed by an official with at least the rank of an
Assistant Director.
As read together, the inescapable conclusion is that
respondent Commission's power to reorganize is limited
to offices under its control as enumerated in Section 16,
supra. From its inception, the CESB was intended to be
an autonomous entity, albeit administratively attached to
respondent Commission. As conceptualized by the
Reorganization Committee "the CESB shall be
autonomous. It is expected to view the problem of
building up executive manpower in the government with a
broad and positive outlook." 6 The essential autonomous
character of the CESB is not negated by its attachment to
respondent Commission. By said attachment, CESB was
not made to fall within the control of respondent
Commission. Under the Administrative Code of 1987, the
purpose of attaching one functionally inter-related
government agency to another is to attain "policy and
program coordination." This is clearly etched out in
Section 38(3), Chapter 7, Book IV of the aforecited Code,
to wit:
(3) Attachment. — (a) This refers to the lateral
relationship between the department or its
equivalent and attached agency or corporation for
purposes of policy and program coordination. The
coordination may be accomplished by having the
department represented in the governing board of
the attached agency or corporation, either as
chairman or as a member, with or without voting
rights, if this is permitted by the charter; having the
attached corporation or agency comply with a
system of periodic reporting which shall reflect the
progress of programs and projects; and having the
department or its equivalent provide general policies
through its representative in the board, which shall
serve as the framework for the internal policies of
the attached corporation or agency.
Respondent Commission also relies on the case of Datumanong, et
al., vs. Civil Service Commission, G. R. No. 114380 where the
petition assailing the abolition of the CESB was dismissed for lack of
cause of action. Suffice to state that the reliance is misplaced
considering that the cited case was dismissed for lack of standing of
the petitioner, hence, the lack of cause of action.
IN VIEW WHEREOF, the petition is granted and Resolution No. 93-
4359 of the respondent Commission is hereby annulled and set
aside. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan and Mendoza,
JJ., concur.
Footnotes
1 Together with twenty-six (26) others.
2 Patricia A. Sto. Tomas (Chairman), Ramon P.
Ereneta, Jr., (member) and Thelma P. Gaminde
(member).
3 On February 13, 1995, respondent CSC
manifested that the President appointed petitioner
to CESO rank on January 9, 1995. Her
appointment, however, has not rendered moot the
broader issue of whether or not the abolition of
Career Executive Service Board is valid.
4 P. D. No. 1 was later amended by P.D. No. 336
and P.D. No. 367 on the composition of the CESB;
P.D. No. 807 and E.O. No. 292 (Administrative
Code of 1987) reiterated the functions of the CESB.
The General Appropriations Acts from 1975 to 1993
also uniformly appropriated funds for the CESB.
5 63 AM JUR 2d section 30.
6 Reorganization Panel Reports, Vol. II, pp. 16 to 49
as cited in Petition, p. 17.
Notes:
Buklod Ng Kawaning EIIB vs. Zamora
EN BANC
G.R. Nos. 142801-802 July 10, 2001
SANDOVAL-GUTIERREZ, J.:
In this petition for certiorari, prohibition and mandamus, petitioners
Buklod Ng Kawaning EIIB, Cesar Posada, Remedios Princesa,
Benjamin Kho, Benigno Manga and Lulu Mendoza, for themselves
and in behalf of others with whom they share a common or general
interest, seek the nullification of Executive Order No. 1911 and
Executive Order No. 2232 on the ground that they were issued by
the Office of the President with grave abuse of discretion and in
violation of their constitutional right to security of tenure.
The facts are undisputed:
On June 30, 1987, former President Corazon C. Aquino, issued
Executive Order No. 1273 establishing the Economic Intelligence and
Investigation Bureau (EIIB) as part of the structural organization of
the Ministry of Finance.4 The EIIB was designated to perform the
following functions:
"(a) Receive, gather and evaluate intelligence reports and
information and evidence on the nature, modes and
extent of illegal activities affecting the national economy,
such as, but not limited to, economic sabotage,
smuggling, tax evasion, and dollar-salting, investigate the
same and aid in the prosecution of cases;
(b) Coordinate with external agencies in monitoring the
financial and economic activities of persons or entities,
whether domestic or foreign, which may adversely affect
national financial interest with the goal of regulating,
controlling or preventing said activities;
(c) Provide all intelligence units of operating Bureaus or
Offices under the Ministry with the general framework and
guidelines in the conduct of intelligence and investigating
works;
(d) Supervise, monitor and coordinate all the intelligence
and investigation operations of the operating Bureaus and
Offices under the Ministry;
(e) Investigate, hear and file, upon clearance by the
Minister, anti-graft and corruption cases against
personnel of the Ministry and its constituents units;
(f) Perform such other appropriate functions as may be
assigned by the Minister or his deputies."5
In a desire to achieve harmony of efforts and to prevent possible
conflicts among agencies in the course of their anti-smuggling
operations, President Aquino issued Memorandum Order No. 225 on
March 17, 1989, providing, among others, that the EIIB "shall be the
agency of primary responsibility for anti-smuggling operations in all
land areas and inland waters and waterways outside the areas of
sole jurisdiction of the Bureau of Customs."6
Eleven years after, or on January 7, 2000, President Joseph Estrada
issued Executive Order No. 191 entitled "Deactivation of the
Economic Intelligence and Investigation Bureau."7 Motivated by the
fact that "the designated functions of the EIIB are also being
performed by the other existing agencies of the government" and that
"there is a need to constantly monitor the overlapping of functions"
among these agencies, former President Estrada ordered the
deactivation of EIIB and the transfer of its functions to the Bureau of
Customs and the National Bureau of Investigation.
Meanwhile, President Estrada issued Executive Order No. 1968
creating the Presidential Anti-Smuggling Task Force "Aduana."9
Then the day feared by the EIIB employees came. On March 29,
2000, President Estrada issued Executive Order No. 22310 providing
that all EIIB personnel occupying positions specified therein shall be
deemed separated from the service effective April 30, 2000, pursuant
to a bona fide reorganization resulting to abolition, redundancy,
merger, division, or consolidation of positions.11
Agonizing over the loss of their employment, petitioners now come
before this Court invoking our power of judicial review of Executive
Order Nos. 191 and 223. They anchor their petition on the following
arguments:
"A
Executive Order Nos. 191 and 223 should be annulled
as they are unconstitutional for being violative of
Section 2(3), Article IX-B of the Philippine
Constitution and/or for having been issued with grave
abuse of discretion amounting to lack or excess of
jurisdiction.
B.
The abolition of the EIIB is a hoax. Similarly, if
Executive Order Nos. 191 and 223 are considered to
effect a reorganization of the EIIB, such
reorganization was made in bad faith.
C.
The President has no authority to abolish the EIIB."
Petitioners contend that the issuance of the afore-mentioned
executive orders is: (a) a violation of their right to security of tenure;
(b) tainted with bad faith as they were not actually intended to make
the bureaucracy more efficient but to give way to Task Force
"Aduana," the functions of which are essentially and substantially the
same as that of EIIB; and (c) a usurpation of the power of Congress
to decide whether or not to abolish the EIIB.
Arguing in behalf of respondents, the Solicitor General maintains that:
(a) the President enjoys the totality of the executive power provided
under Sections 1 and 7, Article VII of the Constitution, thus, he has
the authority to issue Executive Order Nos. 191 and 223; (b) the said
executive orders were issued in the interest of national economy, to
avoid duplicity of work and to streamline the functions of the
bureaucracy; and (c) the EIIB was not "abolished," it was only
"deactivated."
The petition is bereft of merit.
Despite the presence of some procedural flaws in the instant petition,
such as, petitioners' disregard of the hierarchy of courts and the non-
exhaustion of administrative remedies, we deem it necessary to
address the issues. It is in the interest of the State that questions
relating to the status and existence of a public office be settled
without delay. We are not without precedent. In Dario v. Mison,12 we
liberally decreed:
"The Court disregards the questions raised as to
procedure, failure to exhaust administrative remedies, the
standing of certain parties to sue, for two reasons,
`[b]ecause of the demands of public interest,
including the need for stability in the public service,'
and because of the serious implications of these cases on
the administration of the Philippine civil service and the
rights of public servants."
At first glance, it seems that the resolution of this case hinges on the
question - Does the "deactivation" of EIIB constitute "abolition" of an
office? However, after coming to terms with the prevailing law and
jurisprudence, we are certain that the ultimate queries should be – a)
Does the President have the authority to reorganize the executive
department? and, b) How should the reorganization be carried out?
Surely, there exists a distinction between the words "deactivate" and
"abolish." To "deactivate" means to render inactive or ineffective or to
break up by discharging or reassigning personnel,13 while to "abolish"
means to do away with, to annul, abrogate or destroy completely.14 In
essence, abolition denotes an intention to do away with the office
wholly and permanently.15 Thus, while in abolition, the office ceases
to exist, the same is not true in deactivation where the office
continues to exist, albeit remaining dormant or inoperative. Be that as
it may, deactivation and abolition are both reorganization measures.
The Solicitor General only invokes the above distinctions on the
mistaken assumption that the President has no power to abolish an
office.
The general rule has always been that the power to abolish a public
office is lodged with the legislature.16 This proceeds from the legal
precept that the power to create includes the power to destroy. A
public office is either created by the Constitution, by statute, or by
authority of law.17 Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that
brought it into existence.18
The exception, however, is that as far as bureaus, agencies or offices
in the executive department are concerned, the President's power of
control may justify him to inactivate the functions of a particular
office,19 or certain laws may grant him the broad authority to carry out
reorganization measures.20 The case in point is Larin v. Executive
Secretary.21 In this case, it was argued that there is no law which
empowers the President to reorganize the BIR. In decreeing
otherwise, this Court sustained the following legal basis, thus:
"Initially, it is argued that there is no law yet which
empowers the President to issue E.O. No. 132 or to
reorganize the BIR.
We do not agree.
xxx xxx
Section 48 of R.A. 7645 provides that:
'Sec. 48. Scaling Down and Phase Out of Activities of
Agencies Within the Executive Branch. – The heads of
departments, bureaus and offices and agencies are
hereby directed to identify their respective activities which
are no longer essential in the delivery of public services
and which may be scaled down, phased out or abolished,
subject to civil service rules and regulations. X x x. Actual
scaling down, phasing out or abolition of the activities
shall be effected pursuant to Circulars or Orders issued
for the purpose by the Office of the President.'
Said provision clearly mentions the acts of "scaling
down, phasing out and abolition" of offices only and
does not cover the creation of offices or transfer of
functions. Nevertheless, the act of creating and
decentralizing is included in the subsequent provision of
Section 62 which provides that:
'Sec. 62. Unauthorized organizational charges. - Unless
otherwise created by law or directed by the President of
the Philippines, no organizational unit or changes in key
positions in any department or agency shall be authorized
in their respective organization structures and be funded
from appropriations by this Act.' (italics ours)
The foregoing provision evidently shows that the
President is authorized to effect organizational
changes including the creation of offices in the
department or agency concerned.
xxx xxx
Another legal basis of E.O. No. 132 is Section 20, Book III
of E.O. No. 292 which states:
'Sec. 20. Residual Powers. – Unless Congress provides
otherwise, the President shall exercise such other powers
and functions vested in the President which are provided
for under the laws and which are not specifically
enumerated above or which are not delegated by the
President in accordance with law.' (italic ours)
This provision speaks of such other powers vested in
the President under the law. What law then gives him
the power to reorganize? It is Presidential Decree No.
1772 which amended Presidential Decree No. 1416.
These decrees expressly grant the President of the
Philippines the continuing authority to reorganize the
national government, which includes the power to
group, consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify
functions, services and activities and to standardize
salaries and materials. The validity of these two decrees
are unquestionable. The 1987 Constitution clearly
provides that "all laws, decrees, executive orders,
proclamations, letters of instructions and other executive
issuances not inconsistent with this Constitution shall
remain operative until amended, repealed or revoked. So
far, there is yet no law amending or repealing said
decrees." (Emphasis supplied)
Now, let us take a look at the assailed executive order.
In the whereas clause of E.O. No. 191, former President Estrada
anchored his authority to deactivate EIIB on Section 77 of Republic
Act 8745 (FY 1999 General Appropriations Act), a provision similar to
Section 62 of R.A. 7645 quoted in Larin, thus;
"Sec. 77. Organized Changes. Unless otherwise
provided by law or directed by the President of the
Philippines, no changes in key positions or
organizational units in any department or agency shall be
authorized in their respective organizational structures
and funded from appropriations provided by this Act."
We adhere to the precedent or ruling in Larin that this provision
recognizes the authority of the President to effect organizational
changes in the department or agency under the executive structure.
Such a ruling further finds support in Section 78 of Republic Act No.
8760.22 Under this law, the heads of departments, bureaus, offices
and agencies and other entities in the Executive Branch are directed
(a) to conduct a comprehensive review of their respective mandates,
missions, objectives, functions, programs, projects, activities and
systems and procedures; (b) identify activities which are no longer
essential in the delivery of public services and which may be scaled
down, phased-out or abolished; and (c) adopt measures that will
result in the streamlined organization and improved overall
performance of their respective agencies.23 Section 78 ends up with
the mandate that the actual streamlining and productivity
improvement in agency organization and operation shall be effected
pursuant to Circulars or Orders issued for the purpose by the
Office of the President.24 The law has spoken clearly. We are left
only with the duty to sustain.
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of the
power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), "the President, subject to the
policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have the continuing authority to
reorganize the administrative structure of the Office of the
President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre,25 we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions." It
takes place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control,
authority and responsibility between them. The EIIB is a bureau
attached to the Department of Finance.26 It falls under the Office of
the President. Hence, it is subject to the President's continuing
authority to reorganize.
It having been duly established that the President has the authority to
carry out reorganization in any branch or agency of the executive
department, what is then left for us to resolve is whether or not the
reorganization is valid. In this jurisdiction, reorganizations have been
regarded as valid provided they are pursued in good faith.
Reorganization is carried out in 'good faith' if it is for the purpose of
economy or to make bureaucracy more efficient.27 Pertinently,
Republic Act No. 665628 provides for the circumstances which may
be considered as evidence of bad faith in the removal of civil service
employees made as a result of reorganization, to wit: (a) where there
is a significant increase in the number of positions in the new staffing
pattern of the department or agency concerned; (b) where an office is
abolished and another performing substantially the same functions is
created; (c) where incumbents are replaced by those less qualified in
terms of status of appointment, performance and merit; (d) where
there is a classification of offices in the department or agency
concerned and the reclassified offices perform substantially the same
functions as the original offices, and (e) where the removal violates
the order of separation.29
Petitioners claim that the deactivation of EIIB was done in bad faith
because four days after its deactivation, President Estrada created
the Task Force Aduana.
We are not convinced.
An examination of the pertinent Executive Orders30 shows that the
deactivation of EIIB and the creation of Task Force Aduana were
done in good faith. It was not for the purpose of removing the EIIB
employees, but to achieve the ultimate purpose of E.O. No. 191,
which is economy. While Task Force Aduana was created to take the
place of EIIB, its creation does not entail expense to the government.
Firstly, there is no employment of new personnel to man the Task
Force. E.O. No. 196 provides that the technical, administrative
and special staffs of EIIB are to be composed of people who are
already in the public service, they being employees of other
existing agencies. Their tenure with the Task Force would only
be temporary, i.e., only when the agency where they belong is
called upon to assist the Task Force. Since their employment
with the Task force is only by way of detail or assignment, they
retain their employment with the existing agencies. And should
the need for them cease, they would be sent back to the agency
concerned.
Secondly, the thrust of E.O. No. 196 is to have a small group of
military men under the direct control and supervision of the President
as base of the government's anti-smuggling campaign. Such a
smaller base has the necessary powers 1) to enlist the assistance of
any department, bureau, or office and to use their respective
personnel, facilities and resources; and 2) "to select and recruit
personnel from within the PSG and ISAFP for assignment to the Task
Force." Obviously, the idea is to encourage the utilization of
personnel, facilities and resources of the already existing
departments, agencies, bureaus, etc., instead of maintaining an
independent office with a whole set of personnel and facilities.
The EIIB had proven itself burdensome for the government because it
maintained separate offices in every region in the Philippines.
And thirdly, it is evident from the yearly budget appropriation of the
government that the creation of the Task Force Aduana was
especially intended to lessen EIIB's expenses. Tracing from the
yearly General Appropriations Act, it appears that the allotted amount
for the EIIB's general administration, support, and operations for the
year 1995, was P128,031,000;31 for 1996, P182,156,000;32 for 1998,
P219,889,000;33 and, for 1999, P238,743,000.34 These amounts were
far above the P50,000,00035 allocation to the Task Force Aduana for
the year 2000.
While basically, the functions of the EIIB have devolved upon the
Task Force Aduana, we find the latter to have additional new powers.
The Task Force Aduana, being composed of elements from the
Presidential Security Group (PSG) and Intelligence Service Armed
Forces of the Philippines (ISAFP),36 has the essential power to effect
searches, seizures and arrests. The EIIB did not have this power.
The Task Force Aduana has the power to enlist the assistance of any
department, bureau, office, or instrumentality of the government,
including government-owned or controlled corporations; and to use
their personnel, facilities and resources. Again, the EIIB did not have
this power. And, the Task Force Aduana has the additional authority
to conduct investigation of cases involving ill-gotten wealth. This was
not expressly granted to the EIIB.1âwphi1.nêt
Consequently, it cannot be said that there is a feigned reorganization.
In Blaquera v. Civil Sevice Commission, 37 we ruled that a
reorganization in good faith is one designed to trim the fat off the
bureaucracy and institute economy and greater efficiency in its
operation.
Lastly, we hold that petitioners' right to security of tenure is not
violated. Nothing is better settled in our law than that the abolition of
an office within the competence of a legitimate body if done in good
faith suffers from no infirmity. Valid abolition of offices is neither
removal nor separation of the incumbents.38 In the instructive words
laid down by this Court in Dario v. Mison,39 through Justice Abraham
F. Sarmiento:
Reorganizations in this jurisdiction have been regarded as
valid provided they are pursued in good faith. As a
general rule, a reorganization is carried out in "good faith"
if it is for the purpose of economy or to make bureaucracy
more efficient. In that event, no dismissal (in case of
dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case,
security of tenure would not be a Chinese wall. Be
that as it may, if the 'abolition,' which is nothing else but a
separation or removal, is done for political reasons or
purposely to defeat security of tenure, otherwise not in
good faith, no valid 'abolition' takes and whatever
'abolition' is done, is void ab initio. There is an invalid
'abolition' as where there is merely a change of
nomenclature of positions, or where claims of economy
are belied by the existence of ample funds.
Indeed, there is no such thing as an absolute right to hold office.
Except constitutional offices which provide for special immunity as
regards salary and tenure, no one can be said to have any vested
right in an office or its salary.40
While we cast a commiserating look upon the plight of all the EIIB
employees whose lives perhaps are now torn with uncertainties, we
cannot ignore the unfortunate reality that our government is also
battling the impact of a plummeting economy. Unless the government
is given the chance to recuperate by instituting economy and
efficiency in its system, the EIIB will not be the last agency to suffer
the impact. We cannot frustrate valid measures which are designed
to rebuild the executive department.
WHEREFORE, the petition is hereby DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Pardo, Buena, Ynares-Santiago, De Leon, Jr., JJ., concur.
Panganiban and Quisumbing, JJ., in the result.
Gonzaga-Reyes, J., on leave.
Footnotes
1
"Deactivation of the Economic Intelligence and
Investigation Bureau"
2
"Supplementing Executive Order No. 191 on the
Deactivation of the Economic Intelligence and
Investigation Bureau and for Other Matters"
3
"Reorganizing the Ministry of Finance" Approved on
January 30, 1987.
4
"SEC. 7. Structural Organization. The Ministry, aside
from the Ministry Proper comprising the Office of the
Minister, the Offices of the Deputy and Assistant
Ministers, the Economic Intelligence and Investigation
Bureau and the Services, shall consist of the Operation
Groups and their constituent units, and Regional Office."
NOTE: The precursor of EIIB was the Anti-
Smuggling Action Center (ASAC) created by
former President Marcos on February 24, 1966
through E.O. No. 11. By virtue of E.O. No. 220
(March 1, 1970), the ASAC was transferred from the
Office of the President to the Department of
National Defense. On March 16, 1971, ASAC was
placed under the direct control and supervision of
the Secretary of Finance by E.O. No. 303. On
June 11, 1978, President Marcos issued
Presidential Decree No. 1458 creating the
Finance Department Intelligence and
Investigation Bureau.
5
Section 26 of E.O. No. 127.
6
Section 2 of Memorandum No. 225.
7
Done on January 7, 2000;
"Section 1. Deactivation of the Economic
Intelligence and Investigation Bureau. The
Economic Intelligence and Investigation Bureau
(EIIIB) under the Department of Finance is hereby
deactivated."
8
Done on January 12, 2000. "Creating the Presidential
Anti-Smuggling Task Force "Aduana" to Investigate and
Prosecute Crimes Involving Large-Scale Smuggling and
Other Frauds Upon Customs, Other Economic Crimes
and Providing Measures to Expedite Seizure
Proceedings."
9
"SECTION 1. Creation of Task Force.- There is hereby
created a Presidential Anti-Smuggling Task Force
hereinafter called "Task Force Aduana," under the control
and supervision of the Office of the President principally
to combat smuggling, unlawful importations and other
frauds upon customs committed in large scale or by
organized and syndicated groups."
xxx xxx
"SEC. 3. Powers and Functions. – The Task force
shall have the following powers and functions:
1. To prepare and implement appropriate and
effective measures to prevent and suppress large-
scale smuggling and other prohibited and unlawful
importations;
2. To effect searches, seizures and arrests, and for
the Task Force Commander to file administrative
and criminal cases conformably with the provisions
of the Tariff and Customs Code of the Philippines,
as amended, pertinent provisions of the Revised
Penal Code, as amended and the Rules of Criminal
Procedure;
3. To conduct intelligence and counter-intelligence
on smuggling and other unlawful importations,
including the monitoring of situations,
circumstances, activities of individual, groups and
entities who are involved in smuggling activities;
4. To select and recruit personnel from within the
PSG and ISAFP for assignment to the Task Force
with the conformity of the office or agency
concerned;
5. To enlist the assistance of any department,
bureau, office or agency or instrumentality of the
government, including government-owned or
controlled corporations to carry out its functions,
including the use of their respective personnel,
facilities and resources;
6. To conduct investigation of ill-gotten wealth of all
persons including government officials involved in
smuggling activities, in coordination with other
government agencies.
7. To conduct verification with the Bureau of
Customs of all documents pertaining to payment of
duties and taxes of all imported articles.
8. To suppress and prevent all other economic
frauds as may be directed by the President.
9. To perform such functions and carry out such
activities as may be directed by the President."
10
"Supplementing Executive Order No. 191 on the
Deactivation of the Economic Intelligence and
Investigation Bureau and for Other Matters."
11
Section 3 of E.O. No. 223.
12
176 SCRA 84 (1989)
13
Webster's Third New International Dictionary, 1986 ed.
p. 579.
14
Moreno, Philippine Law Dictionary, 3rd ed., p. 5
15
Rivera, Law of Public Administration, First Edition, p.
634; Guerrero v. Arizabal, 186 SCRA 108 (1990)
16
In Eugenio v. Civil Service Commission, 243 SCRA 196
(1995), the Court ruled:
"Except for such offices as are created by the
Constitution, the creation of a public offices is
primarily a legislative function. In so far as the
legislative power in this respect is not restricted by
constitutional provisions, it is supreme, and the
legislature may decide for itself what offices are
suitable, necessary, or convenient. When in the
exigencies of government it is necessary to create
and define duties, the legislative department has the
discretion to determine whether additional offices
shall be created, or whether these duties shall be
attached to and become ex-officio duties of existing
offices. An office created by the legislature is wholly
within the power of that body, and it may prescribe
the mode of filling the office and the powers and
duties of the incumbent, and, if it sees fit, abolish
the office."
Mendoza v. Quisumbing 186 SCRA 108 (1990);
Cruz v. Primicias, 23 SCRA 998 (1968) De Leon,
Administrative Law: Text and Cases, 1998 Ed., p.
24
17
Cruz, The Law of Public Officers, 1999 Ed., p. 4.
18
Ibid., p. 199
19
Martin, Philippine Political Law, p. 276
20
Larin v. Executive Secretary, 280 SCRA 713 (1997)
21
ibid.
22
General Appropriation Act FY 2000, signed into law on
February 16, 2000.
23
Section 78 of Republic Act No. 8760.
Section 16, Article XVIII, 1987 Constitution
provides:
"Sec. 16. Career civil service employees from the
separated from the service not for cause but as a
result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the
reorganization following the ratification of this
Constitution shall be entitled to appropriate
separation pay and to retirement and other benefits
accruing to them under the laws of general
application in force at the time of their separation. In
lieu thereof, at the option of the employees, they
may be considered for employment in the
Government or in any of its subdivision,
instrumentalities, or agencies, including government
owned or controlled corporations and their
subsidiaries. This provision also applies to career
officers whose resignation, tendered in line with the
existing policy, had been accepted."
24
Ibid.
25
323 SCRA 312 (2000).
26
Section 17, Title II, Book IV, E.O. No. 292.
27
Department of Trade and Industry v. Chairman and
Commissioners of the Civil Service Commission 227
SCRA 198 (1993); Dario v. Mison, supra.; Mendoza v.
Quisumbing, supra.
28
"An Act to Protect the Security of Tenure of Civil
Service Officers and Employees in the Implementation of
Government Reorganization"-Approved on June 10,
1988" (84 Official Gazette No. 24, p. S-1)
29
Section 2 of Republic Act No. 6656.
30
E.O. No. 196; Section 17, Chapter 4, Title II, Book IV,
E.O. No. 292, and Section 7 and Section 26, E.O. No.
127.
31
R.A. No. 7845, 1995 General Appropriation Act
32
R.A. No. 8174, 1996 General Appropriation Act
33
R.A. No. 8522, 1998 General Appropriation Act
34
R.A. No. 8745, 1999 General Appropriation Act
35
Section 10, E.O. No. 196.
36
Section 2 of E.O. No. 196.
37
226 SCRA 278 (1993).
38
Mendoza v. Quisumbing, supra. De la Llana v. Alba,
supra.
39
supra.
40
National Land Titles and Deeds Registration
Administration v. Civil Service Commission, supra.
Notes:
Mendoza vs. Quisumbing
EN BANC
G.R. No. 78053 June 4, 1990
Separate Opinions
Melencio-Herrera, J. , dissenting.
I reiterate the grounds of my dissent in the Mison and companion
cases.
Narvasa and Feliciano, JJ., concur.
Separate Opinions
FERNAN, C.J., Separate Concurring & Dissenting:
I write this separate opinion upon the sad realization that in the final
analysis, we may have unwittingly frustrated our people's
unmistakable clamor for a complete reorganization of the
government. 1 For in ruling as it did in these consolidated cases (As
in the Dario cases, G.R. No. 81954, August 8, 1989), the majority has
in no uncertain terms set to naught the reorganization efforts not only
in the various departments, agencies and offices involved herein, but
in the entire bureaucracy.
The majority would insist on distinguishing the reorganization process
effected under the Freedom Constitution from that which may be
undertaken under the 1987 Constitution, with the self-defeating
proviso that in the latter case, "civil service eligibles can no longer be
removed without cause as they already enjoy the constitutional right
to security of tenure. 2 Such fragmented view does not sit well with
the law. It does not take into account the various reorganization
executive orders issued by the President prior to the ratification of the
1987 Constitution precisely to ensure the continuity of the
reorganization process commenced under the Freedom Constitution
and carried over to the 1987 Constitution, or the recognition by the
latter constitution itself of the "reorganization following the ratification
of this Constitution 3 which, to my mind, cannot but mean the same
reorganization contemplated under the Freedom Constitution.
Otherwise, the 1987 Constitution would have provided for an
automatic hold-over clause as did the 1935 and 1973 Constitutions.
Such clause was, however, deemed no longer necessary for the
same has been provided under the Freedom Constitution and the
various reorganization executive orders.
Nor does the interpretation insisted upon by the majority jibe with
reality. The reorganization of a department with its numerous
bureaus, offices and sections is a major undertaking. It entails
intensive management study and audit, personnel evaluation,
formulation of new position structures and staffing patterns, budget
allocation, etc., which steps necessarily take time to accomplish. With
the Court's pronouncement in these cases and the Dario cases,
supra, cutting short the reorganization process mandated by the
people in the Freedom Constitution to February 2,1987, it is indeed
doubtful whether any government department had fully implemented
its reorganization program, that is, if it had at all formulated one,
considering time constraints.
But by herein maintaining the basis of my dissent in the said Dario
Cases, supra, that the reorganization pursuant to Proclamation No. 3
continues even after the ratification of the 1987 Constitution, I find
myself concurring in the result obtained in G.R. No. 78053.
Therein petitioner Francisco L. Mendoza was Schools Division
Superintendent in the then Ministry (now Department) of Education,
Culture and Sports, with official station at Surigao City. Pursuant to
the government reorganization decreed under Art. III of the Freedom
Constitution, he was appointed to the same position with the same
place of assignment effective June 4,1986. Sometime during the last
week of March, 1987, he received, through the Regional Director,
Region X, a letter order dated March 19, 1987 signed by respondent
Secretary of Education, Culture and Sports Lourdes R. Quisumbing,
informing him of his separation from the service effective April 15,
1987. 4 Cited as basis for said personnel action was Executive Order
No. 117 approved by President Aquino on January 30, 1987.
The arbitrariness in this case is obvious. Even before Executive
Order No. 117, the law relied upon by respondent, was enacted on
January 30, 1987, the government reorganization mandated under
the Freedom Constitution was already being implemented. In fact, as
aforesaid, said executive order as well as the other reorganization
executive orders were intended to prolong or extend the period of
implementing the reorganization program. Simply put, Executive
Order No. 117 was a mere continuation of the government
reorganization being implemented at the time of its enactment. Upon
these considerations, there can be no plausible explanation why in
June, 1986, when the government reorganization was already being
implemented, petitioner was deemed qualified to remain in the
service, as evidenced by the issuance of an appointment (actually a
re-appointment) to him on a permanent status as Schools Division
Superintendent, yet barely ten (10) months after, he was suddenly
found unfit to continue in office. The questioned personnel action
becomes even more perplexing when taken in conjunction with the
performance rating of "Very Satisfactory" given to petitioner during
the period May, 1986 to April 1987, the very month he was
considered separated from the service. 5
I cannot, however, reconcile myself with the alacrity by which the
majority would attribute bad faith to the reorganization undertaken by
some respondents (particularly the Department of Tourism in G.R.
No. 78525) based on standards established by a subsequent law of
doubtful constitutionality. 6 The principle is that good faith is
presumed while bad faith must be proved. The majority would reverse
the rule despite a showing, unrebutted by petitioners in G.R. No.
78525, that all personnel actions were taken on the basis of
interviews, evaluation of supervisors, performance and self-appraisal
of the employees, as well as recommendations of Civil Service
Commissioners, who were chided for not knowing any better "than to
participate in a violation of the rules of their agency." 7 Indeed, one is
compelled to ask: if you can't rely on the advice of experts, whom can
you depend on?
The security-of-tenure argument accorded merit by the majority would
hold water under ordinary circumstances, but not under the
exceptional factual milieu obtaining in the cases at bar. The removal
from office of petitioners, respondents in some cases, was the result
of the reorganization of the various executive departments
undertaken immediately after the installation of the Aquino
government, at which time, the people's clamor to promote efficiency
and effectiveness in the delivery of public service, rebuild confidence
in the entire governmental system and eradicate graft and corruption
therein was at its highest. The need was so grave and serious, so
basic and urgent, that nothing less than extra-ordinary measures
were called for. In the balancing of interests, as between the very
essence of a government as a machinery for the common good and
the security of tenure guaranteed by the Constitution to those in
government service, one must prevail. Since in our form of govern-
ment, public offices are public trusts, and the officers are servants of
the people and not their rulers, the choice is evident.
There is no gainsaying the initial difficulty facing those who were
displaced by reason of the sweeping governmental reorganization.
The government itself however, has adopted such measures as to
"soften the impact" by providing, among others, in its Guidelines on
the Implementation of Reorganization Executive Orders that in the
event of termination, the employees shall:
a) be included in a consolidated list compiled by the
Department of Budget and Management. All
departments who are recruiting shall give
preference to the employees in the fist; and
b) continue to receive salary and benefits until
December 31, 1987; and
c) be guaranteed the release of separation benefits,
within 45 days from termination and in no case later
than February 15, 1988. 8
We have also seen in these cases instances where the separated
employees were re- hired when items suited to their qualifications
were available. 9
The traditional misconception on the role of the government as a
haven of refuge for the unemployed, the unqualified and the unskilled
must cease. If the value reorientation of our people could be effected
only through drastic and harsh measures, as the recent government
reorganization and streamlining appear to be, so be it. The present
government cannot and should not be burdened with excess
personnel without special talents whose indiscriminate recruitment
into the government service was done under the whim and caprice of
a one-man ruler.
Footnotes
1
Rollo, pp. 18-27; under Rule 45 of the Rule of Court.
2
Id. at 32-44; penned by Associate Justice Marlene
Gonzales-Sison, and concurred in by Associate Justices
Amelita G. Tolentino and Lucenito N. Tagle.
3
Id. at 50-51.
4
Id. at 32-33.
5
Id. at 59-65.
6
Id. at 66-77.
7
Id. at 33.
8
Id. at 78-81.
9
Id. at 83-84.
10
Reyes, Carmencita O., Re: Appointment; Provincial
Administrator.
11
Rollo, pp. 85-88.
12
Id. at 90.
13
Id. at 90-97.
14
Id. at 32-44.
15
G.R. No. 92403, April 22, 1992, 208 SCRA 240.
16
SECTION 46. Discipline: General Provisions. — (a) No
officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided by
law and after due process.
(b) The following shall be grounds for disciplinary
action:
(1) Dishonesty;
(2) Oppression;
(3) Neglect of duty;
(4) Misconduct;
(5) Disgraceful and immoral conduct;
(6) Being notoriously undesirable;
(7) Discourtesy in the course of official duties;
(8) Inefficiency and incompetence in the
performance of official duties;
(9) Receiving for personal use of a fee, gift or
other valuable thing in the course of official
duties or in connection therewith when such
fee, gift, or other valuable thing is given by
any person in the hope or expectation of
receiving a favor or better treatment than that
accorded other persons, or committing acts
punishable under the anti-graft laws;
(10) Conviction of a crime involving moral
turpitude;
(11) Improper or unauthorized solicitation of
contributions from subordinate employees and
by teachers or school officials from school
children;
(12) Violation of existing Civil Service Law and
rules or reasonable office regulations;
(13) Falsification of official document;
(14) Frequent unauthorized absences or
tardiness in reporting for duty, loafing or
frequent unauthorized absences from duty
during regular office hours;
(15) Habitual drunkenness;
(16) Gambling prohibited by law;
(17) Refusal to perform official duty or render
overtime service;
(18) Disgraceful, immoral or dishonest
conduct prior to entering the service;
(19) Physical or mental incapacity or disability
due to immoral or vicious habits;
(20) Borrowing money by superior officers
from subordinates or lending by subordinates
to superior officers;
(21) Lending money at usurious rates of
interest;
(22) Willful failure to pay just debts or willful
failure to pay taxes due to the government;
(23) Contracting loans of money or other
property from persons with whom the office of
the employee concerned has business
relations;
(24) Pursuit of private business, vocation or
profession without the permission required by
Civil Service rules and regulations;
(25) Insubordination;
(26) Engaging directly or indirectly in partisan
political activities by one holding a non-
political office;
(27) Conduct prejudicial to the best interest of
the service;
(28) Lobbying for personal interest or gain in
legislative halls or offices without authority;
(29) Promoting the sale of tickets in behalf of
private enterprises that are not intended for
charitable or public welfare purposes and
even in the latter cases if there is no prior
authority;
(30) Nepotism as defined in Section 60 of this
Title.
17
Rollo, pp. 45-49.
18
Supra note 3.
19
Id. at 122-132.
20
Id. at 151-170.
21
Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service
appointment to which requires examinations shall
be grouped into three major level as follows:
1. The first level shall include clerical, trades,
crafts, and custodial service positions which
involve non-professional or subprofessional
work in a non-supervisory or supervisory
capacity requiring less than four years of
collegiate studies;
2. The second level shall include professional,
technical, and scientific positions which
involve professional, technical, or scientific
work in a non-supervisory or supervisory
capacity requiring at least four years of
college work up to Division Chief level; and
3. The third level shall cover positions in the
Career Executive Service.
(b) Except as herein otherwise provided, entrance
to the first two levels shall be through competitive
examinations, which shall be open to those inside
and outside the service who meet the minimum
qualification requirements. Entrance to a higher
level does not require previous qualification in the
lower level. Entrance to the third level shall be
prescribed by the Career Executive Service Board.
(c) Within the same level, no civil service
examination shall be required for promotion to a
higher position in one or more related occupational
groups. A candidate for promotion should, however,
have previously passed the examination for that
level.
22
G.R. No. 71562, October 28, 1991, 203 SCRA 195.
23
SECTION 7. Career Service.—The Career Service
shall be characterized by (1) entrance based on merit and
fitness to be determined as far as practicable by
competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to higher
career positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which
prior qualification in an appropriate examination is
required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the faculty
and academic staff of state colleges and
universities, and scientific and technical positions in
scientific or research institutions which shall
establish and maintain their own merit systems;
(3) Positions in the Career Executive Service;
namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director,
Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of
equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed
by the President;
(4) Career officers, other than those in the Career
Executive Service, who are appointed by the
President, such as the Foreign Service Officers in
the Department of Foreign Affairs;
(5) Commissioned officers and enlisted men of the
Armed Forces which shall maintain a separate merit
system;
(6) Personnel of government-owned or controlled
corporations, whether performing governmental or
proprietary functions, who do not fall under the non-
career service; and
(7) Permanent laborers, whether skilled, semi-
skilled, or unskilled.
24
Section 199. Officials of the Provincial Government. -
(1) There shall be in each province a governor, a
vice-governor, members of the sangguniang
panlalawigan, a provincial secretary, a provincial
treasurer, a provincial assessor, a provincial budget
officer, a provincial engineer, a provincial
agriculturist and a provincial planning and
development coordinator.
25
Section 199. x x x
xxxx
(3) The sangguniang panlalawigan may maintain
existing offices not mentioned in paragraph
(1) of [this] section, or create such other offices as
may be necessary to carry out the purposes of the
provincial government, or may consolidate the
functions of any one of such offices with those of
another in the interest of efficiency and economy.
26
Section 463. Officials of the Provincial Government.
(a) There shall be in each province a governor, a
vice-governor, members of the sangguniang
panlalawigan, a secretary to the sangguniang
panlalawigan, a provincial treasurer, a provincial
assessor, x x x a provincial planning and
development coordinator, a provincial legal officer, a
provincial administrator. [italics and emphasis ours]
27
Section 480. Qualifications, Terms, Powers and Duties.
(a) No person shall be appointed administrator
unless he is a citizen of the Philippines, a resident
of the local government unit concerned, of good
moral character, a holder of a college degree
preferably in public administration, law, or any other
related course from a recognized college or
university, and a first grade civil service eligible or
its equivalent. He must have acquired experience in
management and administration work for at least
five (5) years in the case of the provincial or city
administrator, and three (3) years in the case of the
municipal administrator.
28
Citing the Manual of Position Descriptions, the Court in
Laurel V v. Civil Service Commission, supra note 22, at
204, noted that the provincial administrator position has
the following requirements:
Education: Bachelor's degree preferably in
Law/Public or Business Administration.
Experience: Six years of progressively responsible
experience in planning, directing and administration
of provincial government operations. Experience in
private agencies considered are those that have
been more or less familiar level of administrative
proficiency.
Eligibility: RA 1080 (BAR)/Personnel Management
Officer/Career Service (Professional)/First
Grade/Supervisor.
29
Reyes, Carmencita O., Re: Appointment; Provincial
Administrator.
30
Section 480, RA 7160; Article 119 of the Implementing
Rules and Regulations of RA 7160 provides:
ARTICLE 119. Appointment of Appointive Local
Officials. — (a) Unless otherwise provided in this
Rule, heads of offices and departments in the LGUs
shall be appointed by the local chief executive
concerned with the concurrence of a majority of all
the members of the sanggunian, subject to civil
service laws, rules and regulations.
(b) The sanggunian concerned shall act on the
appointment within fifteen (15) days from the date of
its submission; otherwise, the same shall be
deemed confirmed.
(c) The term of office of the local administrator, local
legal officer, and local information officer is
coterminous with that of their appointing authority.
31
The creation and abolition of public offices are primarily
legislative functions. It is acknowledged that Congress
may abolish any office it creates without impairing the
officer's right to continue in the position held and that such
power may be exercised for various reasons, such as the
lack of funds or in the interest of economy. However, in
order for the abolition to be valid, it must be made in good
faith, not for political or personal reasons, or in order to
circumvent the constitutional security of tenure of civil
service employees (Canonizado v. Hon. Aguirre, 380 Phil.
280, 286 [2000]). See also The Law on Public Officers
and Election Law, Hector S. de Leon, p. 336.
32
See Salcedo and Ignacio v. Carpio and Carreon, 89
Phil. 254 (1951); and Eraña v. Vergel de Dios, 85 Phil. 17
(1949).
33
The Law on Public Officers and Election Law, Hector S.
de Leon, p. 336.
34
Supra note 32.
35
424 Phil. 707 (2002).
36
G.R. No. 87420, September 17, 1990, 189 SCRA 672,
676.
37
570 Phil. 89 (2008).
38
Id. at 113.
39
Supra note 37.
40
Id. at 113-114; citations omitted.
41
Section 2, Chapter 2, Title I of the Administrative Code.
42
(i) The devolution contemplated in this Code shall
include the transfer to local government units of the
records, equipment, and other assets and personnel of
national agencies and offices corresponding to the
devolved powers, functions, and responsibilities.
Personnel of said national agencies or offices shall
be absorbed by the local government units to which
they belong or in whose areas they are assigned to
the extent that it is administratively viable as
determined by the said oversight committee:
Provided, That the rights accorded to such
personnel pursuant to civil service law, rules and
regulations shall not be impaired: Provided, further,
That regional directors who are career executive
service officers and other officers of similar rank in
the said regional offices who cannot be absorbed by
the local government unit shall be retained by the
national government, without any diminution of rank,
salary or tenure.
43
Canonizado v. Hon. Aguirre, supra note 31.
44
But in the main, the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of
the government. The overlapping and interlacing of
functions and duties between the several departments,
however, sometimes makes it hard to say just where the
one leaves off and the other begins. x x x In cases of
conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper
allocation of powers between the several departments
and among the integral or constituent units thereof.
(Angara v. Electoral Commission, 63 Phil. 139, 157
[1936].)
45
Jocom v. Judge Regalado, 278 Phil. 83, 94 (1991),
citing Tapales v. President and Board of Regents of the
University of the Philippines, 117 Phil. 561 (1963).
46
Ingles v. Mutuc, 135 Phil. 177, 182 (1968)
Notes:
Fernandez vs. Sto. Tomas
EN BANC
FELICIANO, J.:
In this Petition for Certiorari, Prohibition and Mandamus with Prayer
for a Temporary Restraining Order, petitioners Salvador C.
Fernandez and Anicia M. de Lima assail the validity of Resolution No.
94-3710 of the Civil Service Commission ("Commission") and the
authority of the Commission to issue the same.
Petitioner Fernandez was serving as Director of the Office of
Personnel Inspection and Audit ("OPIA") while petitioner de Lima was
serving as Director of the Office of the Personnel Relations ("OPR"),
both at the Central Office of the Civil Service Commission in Quezon
City, Metropolitan Manila. While petitioners were so serving,
Resolution No. 94-3710 signed by public respondents Patricia A..
Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner,
respectively, of the Commission, was issued on 7 June 1994.1
Resolution No. 94-3710 needs to be quoted in full:
RESOLUTION NO. 94-3710
WHEREAS, Section 17 of Book V of Executive
Order 292 provides that ". . . as an independent
constitutional body, the Commission may effect
changes in the organization as the need arises;"
WHEREAS, the Commission finds it imperative to
effect changes in the organization to streamline its
operations and improve delivery of public service;
WHEREAS, the Commission finds it necessary to
immediately effect changes in the organization of
the Central Offices in view of the need to implement
new programs in lieu of those functions which were
transferred to the Regional Offices;
WHEREFORE, foregoing premises considered, the
Commission hereby RESOLVES to effect the
following changes in its organization, specifically in
the Central Offices:
1. The OCSS [Office of Career Systems and
Standards], OPIA [Office of Personnel Inspection
and Audit] and OPR [Office of Personnel Relations]
are merged to form the Research and Development
Office (RDO).
2. The Office for Human Resource Development
(OHRD) is renamed Human Resource Development
Office (HRDO).
3. The following functions and the personnel
assigned to the unit performing said functions are
hereby transferred to HRDO:
a. Administration of the Honor and
Awards program under OCSS;
b. Registration and Accreditation of
Unions under OPR; and
c. Accreditation of Agencies to take final
action on appointments under OPIA.
4. The Office for Central Personnel Records
(OCPR) is renamed Management Information Office
(MIO).
5. The Information technology functions of OPM and
the personnel assigned to the unit are transferred to
MIO.
6. The following functions of OPM and the
personnel assigned to the unit performing said
functions are hereby transferred to the Office of the
Executive Director:
a. Financial Audit and Evaluation;
b. Internal Management and
Improvement;
c. Research and Statistics; and
d. Planning and Programming.
7. The library service and its personnel under
OCPR are transferred to the Central Administrative
Office.
8. The budget allocated for the various functions
shall be transferred to the Offices where the
functions are transferred. Records, fixtures and
equipment that go with the functions shall be moved
to where the functions are transferred.
Annex A contains the manning list for all the offices,
except the OCES.
The changes in the organization and in operations
shall take place before end of July 1994.
Done in Quezon City, July 07, 1994.
(Signed)
Patricia A. Sto. Tomas
Chairman
(Signed) Did not participate
Ramon P. Ereneta, Jr., Thelma P. Gaminde
Commissioner Commissioner
Attested by:
(Signed)
Carmencita Giselle B. Dayson
Board Secretary V 2
During the general assembly of officers and employees of the
Commission held in the morning of 28 July 1994, Chairman Sto.
Tomas, when apprised of objections of petitioners, expressed the
determination of the Commission to implement Resolution No. 94-
3710 unless restrained by higher authority.
Petitioners then instituted this Petition. In a Resolution dated 23
August 1994, the Court required public respondents to file a
Comment on the Petition. On 21 September 1994, petitioners filed an
Urgent Motion for Issuance of a Temporary Restraining Order,
alleging that petitioners had received Office Orders from the
Commission assigning petitioner Fernandez to Region V at Legaspi
City and petitioner de Lima to Region III in San Fernando, Pampanga
and praying that public respondents be restrained from enforcing
these Office Orders. The Court, in a Resolution dated 27 September
1994, granted this Motion and issued the Temporary Restraining
Order prayed for by petitioners.
The Commission filed its own Comment, dated 12 September 1994,
on the Petition and then moved to lift the Temporary Restraining
Order. The Office of the Solicitor General filed a separate Comment
dated 28 November 1994, defending the validity of Resolution No.
94-3710 and urging dismissal of the Petition. Petitioners filed
separate Replies to these Comments. The Commission in turn filed a
Rejoinder (denominated "Comment [on] the Reply").
The principal issues raised in this Petition are the following:
(1) Whether or not the Civil Service Commission
had legal authority to issue Resolution No. 94-3710
to the extent it merged the OCSS [Office of Career
Systems and Standards], the OPIA [Office of
Personnel Inspection and Audit] and the OPR
[Office of Personnel Relations], to form the RDO
[Research and Development Office]; and
(2) Whether or not Resolution No. 94-3710 violated
petitioners' constitutional right to security of tenure.
I.
The Revised Administrative Code of 1987 (Executive Order No. 292
dated 25 July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3,
the internal structure and organization of the Commission in the
following terms:
Sec. 16. Offices in the Commission — The
Commission shall have the following offices:
(1) The Office of the Executive Director — . . .
(2) The Merit System Protection Board — . . .
(3) The Office of Legal Affairs — . . .
(4) The Office of Planning and Management — . . .
(5) The Central Administrative Office — . . .
(6) The Office of Central Personnel Records — . . .
(7) The Office of Position Classification and
Compensation — . . .
(8) The Office of Recruitment, Examination and
Placement — . . .
(9) The Office of Career Systems and Standards
shall provide leadership and assistance in the
formulation and evaluation of personnel systems
and standards relative to performance appraisal,
merit promotion and employee incentive benefits
and awards.
(10) The Office of Human Resource Development
—...
(11) The Office of Personnel Inspection and Audit
shall develop policies, standards, rules and
regulations for the effective conduct of inspection
and audit of personnel and personnel management
programs and the exercise of delegated authority;
provide technical and advisory services to Civil
Service Regional Offices and government agencies
in the implementation of their personnel programs
and evaluation systems.
(12) The Office of Personnel Relations shall provide
leadership and assistance in the development and
implementation of policies, standards, rules and
regulations governing corporate officials and
employees in the areas of recruitment, examination,
placement, career development, merit and awards
systems, position classification and compensation,
performance appraisal, employee welfare and
benefits, discipline and other aspects of personnel
management on the basis of comparable industry
practices.
(13) The Office of the Corporate Affairs — . . .
(14) The Office of Retirement Administration — . . .
(15) The Regional and Field Offices. — . . .
(Emphases in the original)
Immediately after the foregoing listing of offices of the Commission
and their respective functions, the 1987 Revised Administrative Code
goes on to provide as follows:
Sec. 17. Organizational Structure. — Each office of
the Commission shall be headed by a Director with
at least one (1) Assistant Director, and may have
such divisions as are necessary to carry out their
respective functions. As an independent
constitutional body, the Commission may effect
chances in the organization as the need arises.
xxx xxx xxx 3
(Emphasis supplied)
Examination of the foregoing statutory provisions reveals that the
OCSS, OPIA and OPR, and as well each of the other Offices listed in
Section 16 above, consist of aggregations of Divisions, each of which
Divisions is in turn a grouping of Sections. Each Section, Division and
Office comprises a group of positions within the agency called the
Civil Service Commission, each group being entrusted with a more or
less definable function or functions. These functions are related to
one another, each of them being embraced by a common or general
subject matter. Clearly, each Office is an internal department or
organizational unit within the Commission and that accordingly, the
OCSS, OPIA and OPR, as well as all the other Offices within the
Commission constitute administrative subdivisions of the CSC. Put a
little differently, these offices relate to the internal structure of the
Commission.
What did Resolution No. 94-3710 of the Commission do?
Examination of Resolution No. 94-3710 shows that thereby the
Commission re-arranged some of the administrative units (i.e.,
Offices) within the Commission and, among other things, merged
three (3) of them (OCSS, OPIA and OPR) to form a new grouping
called the "Research and Development Office (RDO)." The same
Resolution renamed some of the Offices of the Commission, e.g., the
Office for Human Resource Development (OHRD) was renamed
Human Resource Development Office (HRDO); the Office for Central
Personnel Records (OCPR) was renamed Management Information
Office (MIO). The Commission also re-allocated certain functions
moving some functions from one Office to another; e.g., the
information technology function of OPM (Office of Planning and
Management) was transferred to the newly named Management
Information Office (MIO). This re-allocation or re-assignment of some
functions carried with it the transfer of the budget earmarked for such
function to the Office where the function was transferred. Moreover,
the personnel, records, fixtures and equipment that were devoted to
the carrying out of such functions were moved to the Offices to where
the functions were transferred.
The objectives sought by the Commission in enacting Resolution No.
94-3710 were described in that Resolution in broad terms as
"effect[ing] changes in the organization to streamline [the
Commission's] operations and improve delivery of service." These
changes in internal organization were rendered necessary by, on the
one hand, the decentralization and devolution of the Commission's
functions effected by the creation of fourteen (14) Regional Offices
and ninety-five (95) Field Offices of the Commission throughout the
country, to the end that the Commission and its staff may be brought
closer physically to the government employees that they are
mandated to serve. In the past, its functions had been centralized in
the Head Office of the Commission in Metropolitan Manila and Civil
Service employees all over the country were compelled to come to
Manila for the carrying out of personnel transactions. Upon the other
hand, the dispersal of the functions of the Commission to the
Regional Offices and the Field Offices attached to various
governmental agencies throughout the country makes possible the
implementation of new programs of the Commission at its Central
Office in Metropolitan Manila.
The Commission's Office Order assigning petitioner de Lima to the
CSC Regional Office No. 3 was precipitated by the incumbent
Regional Director filing an application for retirement, thus generating
a need to find a replacement for him. Petitioner de Lima was being
assigned to that Regional Office while the incumbent Regional
Director was still there to facilitate her take over of the duties and
functions of the incumbent Director. Petitioner de Lima's prior
experience as a labor lawyer was also a factor in her assignment to
Regional Office No. 3 where public sector unions have been very
active. Petitioner Fernandez's assignment to the CSC Regional Office
No. 5 had, upon the other hand, been necessitated by the fact that
the then incumbent Director in Region V was under investigation and
needed to be transferred immediately to the Central Office. Petitioner
Fernandez was deemed the most likely designee for Director of
Regional Office No. 5 considering that the functions previously
assigned to him had been substantially devolved to the Regional
Offices such that his reassignment to a Regional Office would result
in the least disruption of the operations of the Central Office.4
It thus appears to the Court that the Commission was moved by quite
legitimate considerations of administrative efficiency and convenience
in promulgating and implementing its Resolution No. 94-3710 and in
assigning petitioner Salvador C. Fernandez to the Regional Office of
the Commission in Region V in Legaspi City and petitioner Anicia M.
de Lima to the Commission's Regional Office in Region III in San
Fernando, Pampanga. It is also clear to
the Court that the changes introduced and formalized through
Resolution No. 94-3710 — re-naming of existing Offices; re-
arrangement of the groupings of Divisions and Sections composing
particular Offices; re-allocation of existing functions (and related
personnel; budget, etc.) among the re-arranged Offices — are
precisely the kind of internal changes which are referred to in Section
17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised
Administrative Code), quoted above, as "chances in the organization"
of the Commission.
Petitioners argue that Resolution No. 94-3710 effected the "abolition"
of public offices, something which may be done only by the same
legislative authority which had created those public offices in the first
place.
The Court is unable, in the circumstances of this case, to accept this
argument. The term "public office" is frequently used to refer to the
right, authority and duty, created and conferred by law, by which, for
a given period either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the
sovereign functions of government, to be exercised by that individual
for the benefit of the public.5 We consider that Resolution No. 94-
3710 has not abolished any public office as that term is used in the
law of public officers.6 It is essential to note that none of the "changes
in organization" introduced by Resolution No. 94-3710 carried with it
or necessarily involved the termination of the relationship of public
employment between the Commission and any of its officers and
employees. We find it very difficult to suppose that the 1987 Revised
Administrative Code having mentioned fourteen (14) different
"Offices" of the Civil Service Commission, meant to freeze those
Offices and to cast in concrete, as it were, the internal organization of
the commission until it might please Congress to change such
internal organization regardless of the ever changing needs of the
Civil Service as a whole. To the contrary, the legislative authority had
expressly authorized the Commission to carry out "changes in the
organization," as the need [for such changes] arises." 7 Assuming, for
purposes of argument merely, that legislative authority was
necessary to carry out the kinds off changes contemplated in
Resolution No. 94-3710 (and the Court is not saying that such
authority is necessary), such legislative authority was validly
delegated to the Commission by Section 17 earlier quoted. The
legislative standards to be observed and respected in the exercise of
such delegated authority are set out not only in Section 17 itself (i.e.,
"as the need arises"), but also in the Declaration of Policies found in
Book V, Title I, Subtitle A, Section 1 of the 1987 Revised
Administrative Code which required the Civil Service Commission
as the central personnel agency of the Government
[to] establish a
career service, adopt measures to promote —
efficiency — [and] responsiveness . . . in the civil
service . . . and that personnel functions shall be
decentralized, delegating the corresponding
authority to the departments, offices and agencies
where such functions can be effectively performed.
(Emphasis supplied)
II.
We turn to the second claim of petitioners that their right to security of
tenure was breached by the respondents in promulgating Resolution
No. 94-3710 and ordering petitioners' assignment to the
Commission's Regional Offices in Regions III and V. Section 2(3) of
Article IX(B) of the 1987 Constitution declared that "no officer or
employee of the Civil Service shall be removed or suspended except
for cause provided by law." Petitioners in effect contend that they
were unlawfully removed from their positions in the OPIA and OPR by
the implementation of Resolution No. 94-3710 and that they cannot,
without their consent, be moved out to the Regional Offices of the
Commission.
We note, firstly, that appointments to the staff of the Commission are
not appointments to a specified public office but rather appointments
to particular positions or ranks. Thus, a person may be appointed to
the position of Director III or Director IV; or to the position of Attorney
IV or Attorney V; or to the position of Records Officer I or Records
Officer II; and so forth. In the instant case, petitioners were each
appointed to the position of Director IV, without specification of any
particular office or station. The same is true with respect to the other
persons holding the same position or rank of Director IV of the
Commission.
Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised
Administrative Code recognizes reassignment as a management
prerogative vested in the Commission and, for that matter, in any
department or agency of government embraced in the civil service:
Sec. 26. Personnel Actions. — . . .
xxx xxx xxx
As used in this Title, any action denoting the
movement or progress of personnel in the civil
service shall be known as personnel action. Such
action shall include appointment through
certification, promotion, transfer, re-instatement, re-
employment, detail, reassignment, demotion, and
separation. All personnel actions shall be in
accordance with such rules, standards, and
regulations as may be promulgated by the
Commission.
xxx xxx xxx
(7) Reassignment. An employee may be re-
assigned from one organizational unit to another in
the same agency, Provided, That such re-
assignment shall not involve a reduction in rank
status and salary. (Emphasis supplied)
It follows that the reassignment of petitioners Fernandez and de Lima
from their previous positions in OPIA and OPR, respectively, to the
Research and Development Office (RDO) in the Central Office of the
Commission in Metropolitan Manila and their subsequent assignment
from the RDO to the Commission's Regional Offices in Regions V
and III had been effected with express statutory authority and did not
constitute removals without lawful cause. It also follows that such re-
assignment did not involve any violation of the constitutional right of
petitioners to security of tenure considering that they retained their
positions of Director IV and would continue to enjoy the same rank,
status and salary at their new assigned stations which they had
enjoyed at the Head Office of the Commission in Metropolitan Manila.
Petitioners had not, in other words, acquired a vested right to serve at
the Commission's Head Office.
Secondly, the above conclusion is compelled not only by the statutory
provisions relevant in the instant case, but also by a long line of
cases decided by this Court in respect of different agencies or offices
of government.
In one of the more recent of these cases, Department of Education
Culture and Sports, etc., et al. v. Court of Appeals, et al.,8 this Court
held that a person who had been appointed as "Secondary School
Principal II" in the Division of City Schools, District II, Quezon City,
National Capital Region, and who had been stationed as High School
Principal in the Carlos Albert High School in Quezon for a number of
years, could lawfully be reassigned or transferred to the Manuel
Roxas High School, also in Quezon City, without demotion in rank or
diminution of salry. This Court held:
The aforequoted provision of Republic Act No. 4670
particularly Section 6 thereof which provides that
except for cause and in the exigencies of the
service no teacher shall be transferred without his
consent from one station to another, finds no
application in the case at bar as this is predicated
upon the theory that the teacher concerned is
appointed — not merely assigned — to a particular
station. Thus:
The rule pursued by plaintiff only goes
so far as
the appointed indicates a specification.
Otherwise, the constitutionally ordained
security of tenure cannot shield her. In
appointments of this nature, this Court
has consistently rejected the officer's
demand to remain — even as public
service dictates that a transfer be made
— in a particular station. Judicial attitude
toward transfers of this nature is
expressed in the following statement in
Ibañez, et al. vs. Commission on
Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002
[1967]);
That security of tenure is an
essential and constitutionally
guaranteed feature of our
Civil Service System, is not
open to debate. The mantle
of its protection extends not
only against removals
without cause but also
against unconsented
transfer which, as repeatedly
enunciatEd, are tantamount
to removals which are within
the ambit of the fundamental
guarantee. However, the
availability of that security of
tenure necessarily depends,
in the first instance, upon the
nature of the appointment
(Hojilla vs. Marino, 121 Phil.
280 [1965].) Such that the
rule which proscribes
transfers without consent as
anathema to the security of
tenure is predicated upon
the theory that the officer
involved is appointed — not
merely assigned — to a
particular station (Miclat v.
Ganaden, et al., 108 Phil.
439 [1960]; Jaro v. Hon.
Valencia, et al., 118 Phil.
728 [1963]). [Brillantes v.
Guevarra, 27 SCRA 138
(1969)]
The appointment of Navarro as principal does not
refer to any particular station or school. As such,
she could be assigned to any station and she is not
entitled to stay permanently at any specific school.
(Bongbong v. Parado, 57 SCRA 623) When she
was assigned to the Carlos Albert High School, it
could not have been with the intention to let her stay
in said school permanently. Otherwise, her
appointment would have so stated. Consequently,
she may be assigned to any station or school in
Quezon City as the exigencies of public service
require even without consent. As this Court ruled in
Brillantes v. Guevarra, 27 SCRA 138,
143 —
Plaintiff's confident stride falters. She
took too loose a view of the applicable
jurisprudence. Her refuge behind the
mantle of security of tenure guaranteed
by the Constitution is not impenetrable.
She proceeds upon the assumption that
she occupies her station in Sinalang
Elementary School by appointment. But
her first appointment as Principal merely
reads thus: "You are hereby appointed a
Principal (Elementary School) in the
Bureau of Public Schools, Department
of Education", without mentioning her
station. She cannot therefore claim
security of tenure as Principal of
Sinalang Elementary School or any
particular station. She may be assigned
to any station as exigency of public
service requires, even without her
consent. She thus has no right of
choice.9 (Emphasis supplied; citation
omitted)
In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc.,
et
a1., 10 the Court addressed appointments of petitioners as
"Mediators-Arbiters in the National Capital Region" in dismissing a
challenge on certiorari to resolutions of the CSC and orders of the
Secretary of Labor. The Court said:
Petitioners were appointed as Mediator Arbiters in
the National Capital Region. They were not,
however, appointed to a specific station or particular
unit of the Department of Labor in the National
Capital Region (DOLE-NCR). Consequently, they
can always be reassigned from one organizational
unit to another of the same agency where, in the
opinion of respondent Secretary, their services may
be used more effectively. As such they can neither
claim a vested right to the station to which they
were assigned nor to security of tenure thereat. As
correctly observed by the Solicitor General,
petitioners' reassignment is not a transfer for they
were not removed from their position as med-
arbiters. They were not given new appointments to
new positions. It indubitably follows, therefore, that
Memorandum Order No. 4 ordering their
reassignment in the interest of the service is legally
in order.11 (Emphases supplied)
In Quisumbing v. Gumban, 12 the Court, dealing with an
appointment in the Bureau of Public Schools of the
Department of Education, Culture and Sports, ruled as
follows:
After a careful scrutiny of the records, it is to be
underscored that the appointment of private
respondent Yap is simply that of a District
Supervisor of the Bureau of Public Schools which
does not indicate a specific station (Rollo, p. 13). A
such, she could be assigned to any station and she
is no entitled to stay permanently at any specific
station (Bongbong v. Parado, 57 SCRA 623 [1974];
Department of Education, Culture and Sports v.
Court of Appeals [G.R. 81032, March 22, 1990]
citing Brillantes v. Guevarra [27 SCRA 138 [1969]).
13
Footnotes
1
Rollo, pp. 12-31.
2
Id. at 32-41. Penned by Associate Justice Priscilla Baltazar-
Padilla, with Associate Justices Pampio A. Abarintos and
Marlene Gonzales-Sison concurring.
3
Id. at 42-43. Penned by Associate Justice Edgardo L. Delos
Santos, with Associate Justices Agnes Reyes-Carpio and
Eduardo B. Peralta, Jr. concurring.
4
Id. at 44-57.
5
Id. at 68-72. Penned by Presiding Judge Emma C. Labayen.
6
Id. at 33-35.
7
Id. at 54.
8
Id. at 119-120.
9
Id. at 75-80.
10
Id. at 75.
11
Id. at 35.
12
Id.
13
ld. at 55.
14
Id. at 82.
15
Id.
16
Id. at 146. Annex "4" of the Answer to Petition for Annulment
of Judgment dated March 7, 2001.
17
Id. at 48.
18
Id.
19
Id.
20
Id.atl20-121,128.
21
Id.atll8-140.
22
Id. at 129-130.
23
Id. at 129-131.
24
Id. at 131-132.
25
Id. at 132
26
See id. at 37, 40.
27
Id. at 147-153.
28
Id. at 147.
29
Id. at 42-43.
30
Id. at 162-165.
31
Id. at 169.
32
Id. at 171-175.
33
Id. at 171.
34
Id. at 180-A to 183.
35
Id. at 185.
36
RULES OF COURT, Rule 45, Section 1.
37
See Miro v. V da. De Erederos, 721 Phil. 772, 785-787
(2013).
38
See id. at 784.
39
See rollo, pp. 171-172
40
RULES OF COURT, Rule 47, Section 2.
41
Id.
42
Yuk Ling Ong v. Co, G.R. No. 206653, February 25, 2015,
752 SCRA 42, 48.
43
See rollo, p. 27.
44
Id. at 28.
45
RULES OF COURT, Rule 39, Section 1.
46
Id. at Rule 37, Section I.
47
Rollo, p. 28.
48
See Gatmaitan v. Gonzales, 525 Phil. 658, 671 (2006).
49
See Guanzon v. Arradaza, 539 Phil. 367, 375 (2006).
50
Rollo, p. 82.
51
Guanzon v. Arradaza, supra note 49.
52
See Office of the Ombudsman v. Manalastas, G.R. No.
208264, July 27, 2016, p. 8.
53
Rollo, p. 22
54
256 Phil. 621 (1989).
55
162 Phil. 804 (1976).
56
Rollo, p. 37.
57
Id. at 26-27.
58
Id. at 24, 83-84.
59
Id. at 24, 86-87.
60
Id. at 25-26, 106 and 108.
61
See id. at 37.
62
Id. at 37-38.
63
Id. at 86.
64
Id. at 87.
65
Id. at 85.
66
See id. at 38.
67
Id. at 146. Annex "4" of the Answer to Petition for Annulment
of Judgment dated March 7, 2001.
68
Id. at 48.
69
393 Phil. 657, 667 (2000).
Notes:
Ampil v. Ombudsman
SECOND DIVISION
G.R. No. 192685 July 31, 2013
DECISION
PEREZ, J.:
No less than the Constitution maps out the wide grant of investigatory
powers to the Ombudsman.1 Hand in hand with this bestowal, the
Ombudsman is mandated to investigate and prosecute, for and in
behalf of the people, criminal and administrative offenses committed
by government officers and employees, as well as private persons in
conspiracy with the former.2 There can be no equivocation about this
power-and-duty function of the Ombudsman.
Before us are consolidated petitions separately filed by Oscar R.
Ampil (Ampil): (1) one is for certiorari under Rule 65 of the Rules of
Court docketed as G.R. No. 192685; and (2) the other is for review on
certiorari under Rule 45 of the Rules of Court docketed as G.R. No.
199115.
Challenged in the petition for certiorari is the Resolution3 of the
Ombudsman in OMB-C-C-07-0444-J, dismissing the criminal
complaint filed by Ampil against respondents Policarpio L. Espenesin
(Espenesin), Francis Serrano (Serrano), Yvonne S. Yuchengco
(Yuchengco) and Gema O. Cheng (Cheng), and the Order4 denying
Ampil’s motion for reconsideration thereof. Ampil’s complaint charged
respondents with Falsification of Public Documents under Article
171(6) of the Revised Penal Code and violation of Sections 3(a) and
(e) of Republic Act No. 3019, The Anti-Graft and Corrupt Practices
Act, as amended.
The appeal by certiorari, on the other hand, assails the Decision of
the Court of Appeals in CA G.R. SP No. 113171, which affirmed the
Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J
on the administrative aspect of the mentioned criminal complaint for
Falsification and violation of Republic Act No. 3019 against the
Registrar of Deeds, respondent Espenesin. Initially, the Ombudsman
issued a Decision dated 30 April 2008, finding Espenesin guilty of
Simple Misconduct and meting on Espenesin the penalty of one (1)
month suspension. On motion for reconsideration of Ampil, the
Ombudsman favored Espenesin’s arguments in his Opposition, and
recalled the one-month suspension the Ombudsman had imposed on
the latter.
These consolidated cases arose from the following facts.
On 9 November 1995, ASB Realty Corporation (ASB) and Malayan
Insurance Company (MICO) entered into a Joint Project Development
Agreement (JPDA) for the construction of a condominium building to
be known as "The Malayan Tower." Under the JPDA, MICO shall
provide the real property located at the heart of the Ortigas Business
District, Pasig City, while ASB would construct, and shoulder the cost
of construction and development of the condominium building.
A year thereafter, on 20 November 1996, MICO and ASB entered into
another contract, with MICO selling to ASB the land it was
contributing under the JPDA. Under the Contract to Sell, ownership of
the land will vest on ASB only upon full payment of the purchase
price.
Sometime in 2000, ASB, as part of the ASB Group of Companies,
filed a Petition for Rehabilitation with Prayer for Suspension of
Actions and Proceedings before the Securities and Exchange
Commission (SEC). As a result, the SEC issued a sixty (60) day
Suspension Order (a) suspending all actions for claims against the
ASB Group of Companies pending or still to be filed with any court,
office, board, body, or tribunal; (b) enjoining the ASB Group of
Companies from disposing of their properties in any manner, except
in the ordinary course of business, and from paying their liabilities
outstanding as of the date of the filing of the petition; and (c)
appointing Atty. Monico V. Jacob as interim receiver of the ASB
Group of Companies.5 Subsequently, the SEC, over the objections of
creditors, approved the Rehabilitation Plan submitted by the ASB
Group of Companies, thus:
PREMISES CONSIDERED, the objections to the rehabilitation plan
raised by the creditors are hereby considered unreasonable.
Accordingly, the Rehabilitation Plan submitted by petitioners is
hereby APPROVED, except those pertaining to Mr. Roxas’ advances,
and the ASB-Malayan Towers. Finally, Interim Receiver Mr. Fortunato
Cruz is appointed as Rehabilitation Receiver.6 (Emphasis supplied).
Because of the obvious financial difficulties, ASB was unable to
perform its obligations to MICO under the JPDA and the Contract to
Sell. Thus, on 30 April 2002, MICO and ASB executed their Third
contract, a Memorandum of Agreement (MOA),7 allowing MICO to
assume the entire responsibility for the development and completion
of The Malayan Tower. At the time of the execution of the MOA, ASB
had already paid MICO ₱427,231,952.32 out of the ₱640,847,928.48
purchase price of the realty.8
The MOA specifies the entitlement of both ASB and MICO to net
saleable areas of The Malayan Tower representing their investments.
It provides, in pertinent part:
Section 4. Distribution and Disposition of Units. (a) As a return of its
capital investment in the Project, each party shall be entitled to such
portion of all the net saleable area of the Building that their respective
contributions to the Project bear to the actual construction cost. As of
the date of the execution hereof, and on the basis of the total costs
incurred to date in relation to the Remaining Construction Costs (as
defined in Section 9(a) hereof), the parties shall respectively be
entitled to the following (which entitlement shall be conditioned on,
and subject to, adjustments as provided in sub-paragraph (b) of
Section 4 in the event that the actual remaining cost of construction
exceeds the Remaining Construction Cost):
(i) MICO – the net saleable area particularly described in
Schedule 2 hereof.
(ii) ASB – the following net saleable area:
(A) the net saleable area which ASB had pre-sold
for an aggregate purchase price of
₱640,085,267.30 as set forth in Schedule 1
(including all paid and unpaid proceeds of said
presales);
(B) the net saleable area particularly described in
Schedule 3 hereof which shall be delivered to ASB
upon completion of the Project; and,
(C) provided that the actual remaining construction
costs do not exceed the Remaining Construction
Cost, the net saleable area particularly described in
Schedule 4 hereof which shall be delivered to ASB
upon completion of the Project and determination of
its actual construction costs. If the actual remaining
construction costs exceed the Remaining
Construction Cost, sub-paragraph (b) of this Section
4 shall apply.
(b) In the event that the actual remaining construction costs
exceed the Remaining Construction Cost as represented and
warranted by ASB to MICO under Section 9(a) hereof, and
MICO pays for such excess, the pro-rata sharing in the net
saleable area of the Building, as provided in sub-paragraph (a)
of this Section 4 shall be adjusted accordingly. In such event,
MICO shall be entitled to such net saleable area in Schedule 4
that corresponds to the excess of the actual remaining cost
over the Remaining Construction Cost.
(c) To ensure the viability of the Project, the parties agree on a
single pricing system, which MICO shall have the exclusive
right to fix and periodically adjust based on prevailing market
conditions in consultation with, but without need of consent of,
ASB, for each party’s primary sale or other disposition of its
share in the net saleable area of the Building. In accordance
with the immediately preceding provision, MICO hereby adopts
the selling prices set forth in Schedule 5 hereof. Each party or
its officers, employees, agents or representatives shall not sell
or otherwise dispose any share of said party in the net saleable
area of the Building below the prices fixed by MICO in
accordance with this Section 4 (c). MICO shall have the
exclusive right to adopt financing and discounting schemes to
enhance marketing and sales of units in the Project and such
right of MICO shall not be restricted or otherwise limited by the
foregoing single pricing system provision.
(d) Each party shall bear the profits earned and losses incurred
as well as any and all taxes and other expenses in connection
with the allocation or sale of, or other transaction relating to, the
units allotted to each party.9
On 11 March 2005, Condominium Certificates of Title (CCTs) for 38
units10 and the allotted parking spaces were issued in the name of
ASB. On even date but prior to its release, another set of CCTs
covering the same subject units but with MICO as registered owner
thereof, was signed by Espenesin in his capacity as Registrar of
Deeds of Pasig City. Notably, Espenesin had likewise signed the
CCTs which were originally issued in ASB’s name.
On 2 April 2006, counsel for ASB wrote Espenesin calling his
attention to the supposed amendment in the CCTs which he had
originally issued in ASB’s name.11 Counsel for ASB demanded that
Espenesin effect in the second set of CCTs, the registration of the
subject units in The Malayan Tower back to ASB’s name.
On 17 May 2006, Espenesin replied and explained, thus:
The registration of the Malayan-ASB Realty transaction, from its
inception up to the issuance of titles, were all handled by respondent
Atty. Francis Serrano. He therefore appeared and we have
considered him the legitimate representative of both parties (sic). His
representation, we gathered, covers the interest of both MICO and
ASB in as far as the titling of the condominium units are concerned.
Sometime ago Serrano requested that condominium titles over
specified units be issued in consonance with the sharing in the joint
venture MOA. Titles were correspondingly issued as per request,
some in the name of MICO and some in the name of ASB. Before its
release to the parties, Atty. Serrano came back and requested that
some titles issued in the name of ASB be changed to MICO because
allegedly there was error in the issuance.
Believing it was a simple error and on representation of the person
we came to know and considered the representative of both parties,
we erased the name ASB Realty Corporation on those specified titles
and placed instead the name Malayan Insurance Company.
To our mind, the purpose was not to transfer ownership but merely to
rectify an error committed in the issuance of titles. And since they
were well within our capacity to do, the titles not having been
released yet to its owner, we did what we believed was a simple act
of rectifying a simple mistake.12
After learning of the amendment in the CCTs issued in ASB’s name,
Ampil, on 23 January 2007, wrote respondents Yuchengco and
Cheng, President and Chief Financial Officer of MICO, respectively,
introducing himself as an unsecured creditor of ASB Holdings, Inc.,
one of the corporations forming part of the ASB Group of
Companies.13 Ampil averred that MICO had illegally registered in its
name the subject units at The Malayan Tower which were reserved
for ASB under the MOA, and actually, already registered in ASB’s
name with the Register of Deeds of Pasig City. Ampil pointed out that
the "condominium units should have benefited him and other
unsecured creditors of ASB because the latter had categorically
informed them previously that the same would be contributed to the
Asset Pool created under the Rehabilitation Plan of the ASB Group of
Companies." Ultimately, Ampil demanded that Yuchengco and Cheng
rectify the resulting error in the CCTs, and facilitate the registration of
the subject units back to ASB’s name.
Respondents paid no heed to ASB’s and Ampil’s demands.
As previously adverted to, Ampil charged respondents with
Falsification of Public Documents under Article 171(6) of the Revised
Penal Code and violation of Sections 3(a) and (e) of Republic Act No.
3019 before the Office of the Ombudsman, alleging the following:
1. Respondents, in conspiracy, erased the name of ASB, and
intercalated and substituted the name of MICO under the entry
of registered owner in the questioned CCTs covering the
subject units of The Malayan Tower;
2. The alterations were done without the necessary order from
the proper court, in direct violation of Section 10814 of
Presidential Decree No. 1529;
3. Respondents violated Article 171(6) of the Revised Penal
Code by:
3.1 Altering the CCTs which are public documents;
3.2 Effecting the alterations on genuine documents;
3.3 Changing the meaning of the CCTs with MICO now
appearing as registered owner of the subject units in
Malayan Tower; and
3.4 Effectively, making the documents speak something
false when ASB is the true owner of the subject units, and
not MICO.
4. Ampil, as unsecured creditor of ASB, was unjustly prejudiced
by the felonious acts of respondents;
5. Respondents violated Sections 3(a) and (e) of Republic Act
No. 3019:
5.1 Respondent Espenesin, as Registrar of the Pasig City
Registry of Deeds, committed an offense in connection
with his official duties by allowing himself to be
persuaded, induced or influenced by respondent Serrano
into altering the questioned CCTs; and
5.2 The actions of respondent Espenesin demonstrate
manifest partiality, evident bad faith and/or, at the least,
gross inexcusable negligence.
6. Respondents Yuchengco and Cheng, being responsible
officers of MICO, as principals by inducement and conspirators
of Espenesin and Serrano, are likewise liable for falsification of
the CCTs and violation of Sections 3(a) and (e) of Republic Act
No. 3019.15
As required by the Ombudsman, respondents filed their counter-
affidavits: Espenesin and Serrano filed individually, while Yuchengco
and Cheng filed jointly. Respondents’ respective counter-affidavits
uniformly denied petitioner’s charges and explicated as follows:
Respondent Espenesin countered, among others, (i) that their
intention was only to cause the necessary rectification on certain
errors made on the CCTs in issue; (ii) that since the CCTs were not
yet issued and released to the parties, it is still within his authority, as
part of the registration process, to make the necessary amendments
or corrections thereon; (iii) that no court order would be necessary to
effect such changes, the CCTs still being within the control of the
Register of Deeds and have not yet been released to the respective
owners; (iv) that the amendments were made not for the purpose of
falsifying the CCTs in issue but to make the same reflect and declare
the truth; and (v) that he merely made the corrections in accordance
with the representations of respondent Serrano who he believed to be
guarding and representing both the interests of MICO and ASB.
Respondent Serrano, on the other hand, argued: (i) that the units in
issue are not yet owned by ASB; (ii) that these units were specifically
segregated and reserved for MICO in order to answer for any excess
in the estimated cost that it will expend in the completion of the
Malayan Tower; (iii) that ASB is only entitled to these reserved units
only after the Malayan Tower is completed and that the units are not
utilized to cover for the increase in the cost expended by MICO
pursuant to Section 4(c) of the MOA; (iv) that the Malayan Tower was
still incomplete at the time when the alterations were made on the
CCT, hence, the claim of ownership of ASB over the reserved units is
premature and totally baseless; (v) that prior to the fulfillment of the
resolutory condition, that is, after the completion of the Malayan
Tower and there remains a balance in the Remaining Construction
Cost, the units still rightfully belongs to MICO; and (vi) that the
alteration was made merely for the purpose of correcting an error.
Respondents Cheng and Yuchengco, while adopting the foregoing
arguments of Espenesin and Serrano, further averred that: (i) Ampil
has no legal personality to file this suit, he being merely an unsecured
creditor of ASB whose interest was not definitively shown to have
been damaged by the subject controversy; (ii) that their participation
as respondents and alleged co-conspirators of Serrano and
Espenesin was not clearly shown and defined in the complaint; (iii)
the CCTs issued in the name of ASB have not yet been entered in
the Registration Book at the time when the alterations were effected,
hence, the same could still be made subject of appropriate
amendments; (iv) that the CCTs in issue named in favor of ASB were
mere drafts and cannot legally be considered documents within the
strict definition of the law; (v) that court order authorizing to amend a
title is necessary only if the deed or document sought to be registered
has already been entered in the registration book; and (vi) that MICO
is the duly registered owner of the land on which Malayan Tower
stands and ASB was merely referred to as the developer.16
Thereafter, the Ombudsman issued the assailed Resolution in G.R.
No. 192685 dismissing Ampil’s complaint. For the Ombudsman, the
resolution of whether respondents falsified the CCTs must be
prefaced by a determination of who, between MICO and ASB, is the
rightful owner of the subject units. The Ombudsman held that it had
no authority to interpret the provisions of the MOA and, thus,
refrained from resolving the preliminary question of ownership. Given
the foregoing, the Ombudsman was hard pressed to make a
categorical finding that the CCTs were altered to speak something
false. In short, the Ombudsman did not have probable cause to indict
respondents for falsification of the CCTs because the last element of
the crime, i.e., that the change made the document speak something
false, had not been established.
Significantly, the Ombudsman did not dispose of whether probable
cause exists to indict respondents for violation of Sections 3(a) and
(e) of Republic Act No. 3019.
Ampil filed a Motion for Reconsideration. However, in yet another
setback, the Ombudsman denied Ampil’s motion and affirmed the
dismissal of his complaint.
On the administrative litigation front and as previously narrated, the
Ombudsman found Espenesin liable for Simple Misconduct.
However, on motion for reconsideration of Ampil praying for a finding
of guilt against Espenesin for Grave Misconduct and Dishonesty, the
Ombudsman reconsidered its earlier resolution and recalled the one-
month suspension meted on Espenesin.
Thereafter, Ampil filed a petition for review under Rule 43 of the
Rules of Court before the appellate court. And as already stated, the
appellate court affirmed the Ombudsman’s resolution absolving
Espenesin of not just Grave Misconduct and Dishonesty, but also of
Simple Misconduct.
Hence, this dual recourse by Ampil: first, alleging grave abuse of
discretion in the Ombudsman’s failure to find probable cause to indict
respondents for Falsification of Public Documents under Article
171(6) of the Revised Penal Code, and for their commission of
corrupt practices under
Sections 3(a) and (e) of Republic Act No. 3019; and second, raising
grievous error of the Court of Appeals in affirming the Ombudsman’s
absolution of Espenesin from administrative liability.
To obviate confusion, we shall dispose of the first issue, i.e., whether
probable cause exists to indict respondents for Falsification of Public
Documents under Article 171(6) of the Revised Penal Code and for
their commission of corrupt practices under Sections 3(a) and (e) of
Republic Act No. 3019.
Despite the Ombudsman’s categorical dismissal of his complaint,
Ampil is adamant on the existence of probable cause to bring
respondents to trial for falsification of the CCTs, and for violation of
Sections 3(a) and (e) of Republic Act No. 3019. In fact, he argues
that Espenesin has been held administratively liable by the
Ombudsman for altering the CCTs. At the time of the filing of G.R.
No. 192685, the Ombudsman had not yet reversed its previous
resolution finding Espenesin liable for simple misconduct. He insists
that the admission by respondents Espenesin and Serrano that they
altered the CCTs should foreclose all questions on all respondents’
(Espenesin’s, Serrano’s, Yuchengco’s and Cheng’s) liability for
falsification and their commission of corrupt practices, under the
Revised Penal Code and Republic Act No. 3019, respectively. In all,
Ampil maintains that the Ombudsman’s absolution of respondents is
tainted with grave abuse of discretion.
G.R. No. 192685 is partially impressed with merit. Accordingly, we
find grave abuse of discretion in the Ombudsman’s incomplete
disposition of Ampil’s complaint.
That the Ombudsman is a constitutional officer duty bound to
"investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient"17
brooks no objection. The Ombudsman’s conduct of preliminary
investigation is both power and duty. Thus, the Ombudsman and his
Deputies, are constitutionalized as protectors of the people, who
"shall act promptly on complaints filed in any form or manner against
public officials or employees of the government x x x, and shall, x x x
notify the complainants of the action taken and the result thereof."18
The raison d'être for its creation and endowment of broad
investigative authority is to insulate the Office of the Ombudsman
from the long tentacles of officialdom that are able to penetrate
judges’ and fiscals’ offices, and others involved in the prosecution of
erring public officials, and through the execution of official pressure
and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public officers.19
Plainly, the Ombudsman has "full discretion," based on the attendant
facts and circumstances, to determine the existence of probable
cause or the lack thereof.20 On this score, we have consistently
hewed to the policy of non-interference with the Ombudsman’s
exercise of its constitutionally mandated powers.21 The
Ombudsman’s finding to proceed or desist in the prosecution of a
criminal case can only be assailed through certiorari proceedings
before this Court on the ground that such determination is tainted with
grave abuse of discretion which contemplates an abuse so grave and
so patent equivalent to lack or excess of jurisdiction.22
However, on several occasions, we have interfered with the
Ombudsman’s discretion in determining probable cause:
(a) To afford protection to the constitutional rights of the
accused;
(b) When necessary for the orderly administration of justice or
to avoid oppression or multiplicity of actions;
(c) When there is a prejudicial question which is sub judice;
(d) When the acts of the officer are without or in excess of
authority;
(e) Where the prosecution is under an invalid law, ordinance or
regulation;
(f) When double jeopardy is clearly apparent;
(g) Where the court has no jurisdiction over the offense;
(h) Where it is a case of persecution rather than prosecution;
(i) Where the charges are manifestly false and motivated by the
lust for vengeance.23 (Emphasis supplied).
The fourth circumstance is present in G.R. No. 192685.
While we agree with the Ombudsman’s disquisition that there is no
probable cause to indict respondents for Falsification of Public
Documents under Article 171(6) of the Revised Penal Code, we are
puzzled why the Ombudsman completely glossed over Ampil’s
charge that respondents committed prohibited acts listed in Sections
3(a) and (e) of Republic Act No. 3019. Nowhere in the Resolution or
in the Order denying reconsideration thereof did the Ombudsman
tackle and resolve the issue of whether respondents violated the
particular provisions of Republic Act No. 3019.
Curiously, the Ombudsman docketed Ampil’s complaint-affidavit as
one "for: Falsification of Public Documents and Violation of Sections
3(a) and (e) of Republic Act No. 3019, as amended."24 The
Ombudsman even prefaced the Resolution, thus: "this has reference
to the complaint filed by Oscar Ampil on 17 September 2007 against
respondents, for Falsification of Public Documents and Violation of
Sections 3, paragraphs (a) and (e) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, as
amended."25
The Ombudsman’s silence on the component anti-graft charges is
pointed up by the specific allegations in Ampil’s complaint-affidavit
that:
18. The acts of ATTY. ESPENESIN and his co-conspirators are clear
violations of Section 3 paragraph (a) and/or (e) of Republic Act No.
3019 otherwise known as the Anti-Graft and Corrupt Practices Act x x
x;
xxxx
19. On the basis of the evidence x x x and the admissions of the
conspirators themselves, ATTY. ESPENESIN is liable under both
pars. (a) and (e) thereof or either of the two. By maliciously and
feloniously altering the subject CCT’s (sic), contrary to law and to the
prejudice of ASB and Ampil, ATTY. ESPENESIN committed an
offense in connection with his official duties and he admitted having
done so in conspiracy with his co-respondents. x x x ATTY.
ESPENESIN allowed himself to be persuaded, induced or influenced
into committing such violation or offense which is the substance of
par. (a) of RA 3019;
20. In committing such unauthorized and unlawful alterations on the
subject CCT’s (sic), ATTY. ESPENESIN caused undue injury to ASB
and to AMPIL as an unsecured creditor, who is ultimately one of the
beneficiaries of said CCT from the ASSET POOL created by the
SEC, and gave MICO unwarranted benefits, advantage or preference
in the discharge of his official duties as Register of Deeds of Pasig
City. Such acts were admitted by ATTY. ESPENESIN in his letter to
ASB x x x. Such acts, taken together with his admission, indubitably
show ATTY. ESPENESIN’s manifest partiality, evident bad faith
and/or, at the least, his gross inexcusable negligence in doing the
same;
21. ATTY. ESPENESIN is liable under Section 3 pars. (a) and/or (e)
of RA 3019, as well as under Article 171 par. 6 of the RPC. ATTY.
SERRANO, YVONNE S. YUCHENGCO and (sic) GEMMA O.
CHENG are also liable for violation of the said provisions of law in
conspiracy with ATTY. ESPENESIN, the latter as a principal via direct
participation, ATTY. SERRANO, as principal by inducement and
YUCHENGCO and CHENG, also by inducement, who being
responsible officers of MICO ultimately benefited from said unlawful
act.26 and the pith of the Resolution which carefully and meticulously
dissected the presence of the first three definitive elements of the
crime of falsification under Article 171(6) of the Revised Penal Code:
The first three definitive elements of the crime, albeit present, are
defeated by the absence of the fourth.
The respondents readily admitted that an alteration was indeed made
on the CCTs in issue allegedly for the purpose of correcting a mistake
in the name of the registered owner of the condominium units
involved. Said alteration had obviously changed the tenor of the
CCTs considering that ASB, the initially named owner, was changed
into MICO. The first and third elements are undeniably present.
Anent the second element, the respondents argued that the CCTs in
issue were mere drafts and are not legally considered "genuine
documents" within the strict definition of the law. Albeit the contention
is partially true, no proof has been shown to prove that the CCTs
issued in favor of ASB were mere drafts.
The CCTs of ASB are obviously complete. If we are to compare it
with the appearance and contents of the CCTs issued in favor of
MICO, one will notice no definitive difference between the two except
that one set was named in favor of ASB and the other set, in favor of
MICO. Nothing is shown that will clearly prove that the former were
mere drafts and the latter are the final copies. As far as the
appearance of the CCTs of ASB is concerned, all appear to be
complete and genuine. Proof to the contrary must be shown to prove
otherwise.
Delivery of the titles to the named owners is not a pre-requisite before
all these CCTs can be legally categorized as genuine documents.
The fact that the same had already been signed by respondent
Espenesin in his capacity as Registrar of Deeds of Pasig City and the
notations imprinted thereon appeared to have been entered on March
11, 2005 at 11:55 a.m. at the Registry Books of Pasig City, the CCTs
in issue are bound to be treated as genuine documents drafted and
signed in the regular performance of duties of the officer whose
signature appears thereon.27
On the whole, the Ombudsman’s discussion was straightforward and
categorical, and ultimately established that Espenesin, at the urging
of Serrano, altered the CCTs issued in ASB’s name resulting in these
CCTs ostensibly declaring MICO as registered owner of the subject
units at The Malayan Tower.
Despite the admission by Espenesin that he had altered the CCTs
and the Ombudsman’s findings thereon, the Ombudsman abruptly
dismissed Ampil’s complaint-affidavit, resolving only one of the
charges contained therein with nary a link regarding the other charge
of violation of Sections 3(a) and (e) of Republic Act No. 3019. Indeed,
as found by the Ombudsman, the 4th element of the crime of
Falsification of Public Documents is lacking, as the actual ownership
of the subject units at The Malayan Tower has yet to be resolved.
Nonetheless, this circumstance does not detract from, much less
diminish, Ampil’s charge, and the evidence pointing to the possible
commission, of offenses under Sections 3(a) and (e) of the Anti-Graft
and Corrupt Practices Act.
Sections 3(a) and (e) of Republic Act No. 3019 reads:
Section 3. Corrupt practices of public officers. – In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations duly
promulgated by competent authority or an offense in connection with
the official duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or offense.
xxxx
(e) Causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.
The elements of Section 3(a) of Republic Act No. 3019 are:
(1) the offender is a public officer;
(2) the offender persuades, induces, or influences another
public officer to perform an act or the offender allows himself to
be persuaded, induced, or influenced to commit an act;
(3) the act performed by the other public officer or committed by
the offender constitutes a violation of rules and regulations duly
promulgated by competent authority or an offense in connection
with the official duty of the latter. (Emphasis supplied).
Whereas, paragraph (e) of the same section lists the following
elements:
(1) the offender is a public officer;
(2) the act was done in the discharge of the public officer’s
official, administrative or judicial functions;
(3) the act was done through manifest partiality, evident bad
faith, or gross inexcusable negligence; and
(4) the public officer caused any undue injury to any party,
including the Government, or gave any unwarranted benefits,
advantage or preference.28
As Registrar of the Registry of Deeds of Pasig City, Espenesin is
tasked, among others, to review deeds and other documents for
conformance with the legal requirements of registration.29 Section 10
of Presidential Decree No. 1529, Amending and Codifying the Laws
Relative to Registration of Property and for Other Purposes provides:
Section 10. General functions of Registers of Deeds. – The office of
the Register of Deeds constitutes a public repository of records of
instruments affecting registered or unregistered lands and chattel
mortgages in the province or city wherein such office is situated.
It shall be the duty of the Register of Deeds to immediately register
an instrument presented for registration dealing with real or personal
property which complies with all the requisites for registration. He
shall see to it that said instrument bears the proper documentary and
science stamps and that the same are properly cancelled. If the
instrument is not registerable, he shall forthwith deny registration
thereof and inform the presentor of such denial in writing, stating the
ground or reason therefore, and advising him of his right to appeal by
consulta in accordance with Section 117 of the Decree.
Most importantly, a Registrar of the Registry of Deeds is charged with
knowledge of Presidential Decree No. 1529, specifically Sections 5730
and 108.31
In the instant case, the elements of the offenses under Sections 3(a)
and (e) of Republic Act No. 3019, juxtaposed against the functions of
a Registrar of the Registry of Deeds establish a prima facie graft case
against Espenesin and Serrano only. Under Section 3(a) of Republic
Act No. 3019, there is a prima facie case that Espenesin, at the
urging of Serrano, allowed himself to be persuaded to alter the CCTs
originally issued in ASB’s name, against the procedure provided by
law for the issuance of CCTs and registration of property. In addition,
under Section 3(e) of the same law, there is likewise a prima facie
case that Espenesin, through gross inexcusable negligence, by
simply relying on the fact that all throughout the transaction to register
the subject units at The Malayan Tower he liaised with Serrano, gave
MICO an unwarranted benefit, advantage or preference in the
registration of the subject units.
In Sison v. People of the Philippines, we expounded on Section 3(e)
of Republic Act No. 3019:
The third element of Section 3 (e) of RA 3019 may be committed in
three ways, i.e., through manifest partiality, evident bad faith or gross
inexcusable negligence. Proof of any of these three in connection
with the prohibited acts mentioned in Section 3(e) of RA 3019 is
enough to convict.
Explaining what "partiality," "bad faith" and "gross negligence" mean,
we held:
"Partiality" is synonymous with "bias" which "excites a disposition to
see and report matters as they are wished for rather than as they
are." "Bad faith does not simply connote bad judgment or negligence;
it imputes a dishonest purpose or some moral obliquity and conscious
doing of a wrong; a breach of sworn duty through some motive or
intent or ill will; it partakes of the nature of fraud." "Gross negligence
has been so defined as negligence characterized by the want of even
slight care, acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally with a
conscious indifference to consequences in so far as other persons
may be affected. It is the omission of that care which even inattentive
and thoughtless men never fail to take on their own property."
In the instant case, petitioner was grossly negligent in all the
purchases that were made under his watch. Petitioner’s admission
that the canvass sheets sent out by de Jesus to the suppliers already
contained his signatures because he pre-signed these forms only
proved his utter disregard of the consequences of his actions.
Petitioner also admitted that he knew the provisions of RA 7160 on
personal canvass but he did not follow the law because he was
merely following the practice of his predecessors. This was an
admission of a mindless disregard for the law in a tradition of
illegality. This is totally unacceptable, considering that as municipal
mayor, petitioner ought to implement the law to the letter. As local
chief executive, he should have been the first to follow the law and
see to it that it was followed by his constituency. Sadly, however, he
was the first to break it.
Petitioner should have complied with the requirements laid down by
RA 7160 on personal canvass, no matter how strict they may have
been. Dura lex sed lex. The law is difficult but it is the law. These
requirements are not empty words but were specifically crafted to
ensure transparency in the acquisition of government supplies,
especially since no public bidding is involved in personal canvass.
Truly, the requirement that the canvass and awarding of supplies be
made by a collegial body assures the general public that despotic,
irregular or unlawful transactions do not occur. It also guarantees that
no personal preference is given to any supplier and that the
government is given the best possible price for its procurements.
The fourth element is likewise present. While it is true that the
prosecution was not able to prove any undue injury to the
government as a result of the purchases, it should be noted that there
are two ways by which Section 3(e) of RA 3019 may be violated—the
first, by causing undue injury to any party, including the government,
or the second, by giving any private party any unwarranted benefit,
advantage or preference. Although neither mode constitutes a distinct
offense, an accused may be charged under either mode or both. The
use of the disjunctive "or’ connotes that the two modes need not be
present at the same time. In other words, the presence of one would
suffice for conviction.
Aside from the allegation of undue injury to the government, petitioner
was also charged with having given unwarranted benefit, advantage
or preference to private suppliers. Under the second mode, damage
is not required.
The word "unwarranted" means lacking adequate or official support;
unjustified; unauthorized or without justification or adequate reason.
"Advantage" means a more favorable or improved position or
condition; benefit, profit or gain of any kind; benefit from some course
of action. "Preference" signifies priority or higher evaluation or
desirability; choice or estimation above another.
In order to be found guilty under the second mode, it suffices that the
accused has given unjustified favor or benefit to another, in the
exercise of his official, administrative or judicial functions. Petitioner
did just that. The fact that he repeatedly failed to follow the
requirements of RA 7160 on personal canvass proves that
unwarranted benefit, advantage or preference was given to the
winning suppliers. These suppliers were awarded the procurement
contract without the benefit of a fair system in determining the best
possible price for the government. The private suppliers, which were
all personally chosen by respondent, were able to profit from the
transactions without showing proof that their prices were the most
beneficial to the government. For that, petitioner must now face the
consequences of his acts.32 (Emphasis supplied).
We stress that the Ombudsman did not find probable cause to indict
respondents for falsification simply because the Ombudsman could
not categorically declare that the alteration made the CCT speak
falsely as the ownership of the subject units at The Malayan Tower
had yet to be determined. However, its initial factual findings on the
administrative complaint categorically declared, thus:
x x x Espenesin justified his action by asseverating that since the
CCTs were still under the possession and control of the Register of
Deeds and have not yet been distributed to the owners, amendments
can still be made thereon.
It is worthy to note that the CCTs of ASB, at the time when the
amendment was made, were obviously complete. From its face, we
can infer that all have attained the character of a binding public
document. The signature of Espenesin is already affixed thereon, and
on its face, it was explicitly declared that the titles have already been
entered in the Registration Book of the Register of Deeds of Pasig
City on March 11, 2005 at 11:55 a.m. Allegations to the contrary must
be convincingly and positively proven, otherwise, the presumption
holds that the CCTs issued in the name of ASB were regular and the
contents thereon binding.
Stated in a different light, delivery of the titles to the named owners is
not a pre-requisite before all these CCTs can be legally categorized
as genuine documents. The fact that the same had already been
signed by x x x Espenesin in his capacity as Register of Deeds of
Pasig City and the notations imprinted thereon appeared to have
been entered on March 11, 2005 at 11:55 a.m. at the Registry Books
of Pasig City, the CCTs in issue are bound to be treated as genuine
documents drafted and signed in the regular performance of duties of
the officer whose signature appears thereon. The law has made it so
clear that it is the entry of the title in the Registration Book that
controls the discretion of the Register of Deeds to effect the
necessary amendments and not the actual delivery of the titles to the
named owners.
This being the case, strict compliance with the mandates of Section
108 of P.D. 1529 is strictly called for. The provision is clear that upon
entry of a certificate of title (which definitely includes Condominium
Certificate of Title) attested to by the Register of Deeds, no
amendment shall be effected thereon except upon lawful order of the
court.
In the instant case, it became obvious that after the CCTs of ASB
were entered in the Registration Book on March 11, 2005 at exactly
11:55 a.m., the notations thereon were thereafter amended by
Espenesin when Atty. Serrano purportedly informed him of the
alleged error inscribed therein. The proper remedy that should have
been undertaken by Espenesin soon after he was informed of the
error is to either initiate the appropriate petition himself or to suggest
to the parties to the MOA to file said petition in court for the
amendment of the CCTs. An amendment by way of a shortcut is not
allowed after entry of the title in the Registration Book.
xxxx
If the Regional Trial Court sitting as a land registration court is not
legally authorized to determine the respective rights of the parties to
the MOA when deciding on the petition for amendment and
cancellation of title, all the more with the Registrar of Deeds who is
legally not empowered to make such determination and to cause an
automatic amendment of entries in the Registration Book on the basis
of his unauthorized determination.
Espenesin’s liability is grounded on the untimely and unauthorized
amendment of the CCTs in issue. This is regardless of whether the
amendment had made the CCTs speak of either a lie or the truth.
What defines his error is his inability to comply with the proper
procedure set by law.33 (Emphasis supplied).
We likewise stress that the determination of probable cause does not
require certainty of guilt for a crime. As the term itself implies,
probable cause is concerned merely with probability and not absolute
or even moral certainty;34 it is merely based on opinion and
reasonable belief.35 It is sufficient that based on the preliminary
investigation conducted, it is believed that the act or omission
complained of constitutes the offense charged. Well-settled in
jurisprudence, as in Raro v. Sandiganbayan,36 that:
x x x Probable cause has been defined as the existence of such facts
and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted.37
Probable cause is a reasonable ground for presuming that a matter is
or may be well-founded on such state of facts in the prosecutor's
mind as would lead a person of ordinary caution and prudence to
believe — or entertain an honest or strong suspicion — that it is so.38
A finding of probable cause needs only to rest on evidence showing
that more likely than not a crime has been committed and there is
enough reason to believe that it was committed by the accused. It
need not be based on clear and convincing evidence of guilt, neither
on evidence establishing absolute certainty of guilt.39
A finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it
is believed that the act or omission complained of constitutes the
offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.40
A finding of probable cause merely binds over the suspect to stand
trial. It is not a pronouncement of guilt.
The term does not mean "actual and positive cause" nor does it
import absolute certainty. It is merely based on opinion and
reasonable belief. x x x Probable cause does not require an inquiry
into whether there is sufficient evidence to procure a conviction.41
(Emphasis and italics supplied).
In this instance, Espenesin explains and categorically admits that he
altered, nay corrected, 38 certificates of title which we again
reproduce for easy reference:
Sometime ago Serrano requested that condominium titles over
specified units be issued in consonance with the sharing in the joint
venture MOA. Titles were correspondingly issued as per request,
some in the name of MICO and some in the name of ASB. Before its
release to the parties, Atty. Serrano came back and requested that
some titles issued in the name of ASB be changed to MICO because
allegedly there was error in the issuance.
Believing it was a simple error and on representation of the person
we came to know and considered the representative of both parties,
we erased the name ASB Realty Corporation on those specified titles
and placed instead the name Malayan Insurance Company.
To our mind, the purpose was not to transfer ownership but merely to
rectify an error committed in the issuance of titles. And since they
were well within our capacity to do, the titles not having been
released yet to its owner, we did what we believed was a simple act
of rectifying a simple mistake.42
The letter of Espenesin itself underscores the existence of a prima
facie case of gross negligence:
1. Serrano transacted the registration of the units in The
Malayan Tower with the Office of the Register of Deeds, Pasig
City;
2. Serrano had previously presented a joint venture agreement,
the MOA, which Espenesin followed in the initial preparation
and issuance of the titles;
3. Before some CCTs initially issued in ASB’s name were
released, Serrano returned and requested that some titles
issued in the name of ASB be changed to MICO because those
titles were supposedly erroneously registered to ASB; and
4. Just on Serrano’s utterance and declaration which Espenesin
readily believed because he considered Serrano the
representative of both parties, and without any other
documentation to base the amendment on, Espenesin erased
the name of ASB on those specified titles and replaced it with
the name of MICO.
Espenesin, a Registrar of Deeds, relied on Serrano’s word alone that
a supposed error has been committed. Even if ownership of the units
covered by the amended CCTs has not been categorically declared
as ASB’s given the ongoing dispute between the parties, the MOA
which Espenesin had previously referred to, allocates those units to
ASB:
Section 4. Distribution and Disposition of Units. (a) As a return of its
capital investment in the Project, each party shall be entitled to such
portion of all the net saleable area of the Building that their respective
contributions to the Project bear to the actual construction cost. As of
the date of the execution hereof, and on the basis of the total costs
incurred to date in relation to the Remaining Construction Costs (as
defined in Section 9(a) hereof), the parties shall respectively be
entitled to the following (which entitlement shall be conditioned on,
and subject to, adjustments as provided in sub-paragraph (b) of
Section 4 in the event that the actual remaining cost of construction
exceeds the Remaining Construction Cost):
(i) MICO – the net saleable area particularly described in
Schedule 2 hereof.
(ii) ASB – the following net saleable area:
(A) the net saleable area which ASB had pre-sold for an
aggregate purchase price of ₱640,085,267.30 as set forth in
Schedule 1 (including all paid and unpaid proceeds of said pre-
sales);
(B) the net saleable area particularly described in Schedule 3
hereof which shall be delivered to ASB upon completion of the
Project; and,
(C) provided that the actual remaining construction costs do not
exceed the Remaining Construction Cost, the net saleable area
particularly described in Schedule 4 hereof which shall be
delivered to ASB upon completion of the Project and
determination of its actual construction costs. If the actual
remaining construction costs exceed the Remaining
Construction Cost, sub-paragraph (b) of this Section 4 shall
apply.43
The MOA even recognizes and specifies that:
E. ASB has pre-sold a number of condominium units in the Project to
certain buyers as set forth in Schedule 1 hereof, and in order to
protect the interests of these buyers and preserve the interest in the
Project, the goodwill and business reputation of Malayan, Malayan
has proposed to complete the Project, and ASB has accepted such
proposal, subject to the terms and conditions contained herein,
including the contribution to the Project (a) by Malayan of the Lot and
(b) by ASB of its interest as buyer under the Contract to Sell.
xxxx
Section 3. Recognition of ASB’s Investment. The parties confirm that
as of the date hereof, ASB invested in the Project an amount
equivalent to its entitlement to the net saleable area of the Building
under Section 4 below, including ASB’s interest as buyer under the
Contract to Sell.44
One fact deserves emphasis. The ownership of the condominium
units remains in dispute and, by necessary inference, does not lie as
well in MICO. By his baseless reliance on Serrano’s word and
representation, Espenesin allowed MICO to gain an unwarranted
advantage and benefit in the titling of the 38 units in The Malayan
Tower.
That a prima facie case for gross negligence amounting to violation of
Sections 3(a) and (e) of Republic Act No. 3019 exists is amply
supported by the fact that Espenesin disregarded the well-established
practice necessitating submission of required documents for
registration of property in the Philippines:
Documents Required for Registration of Real Property with the
Register of Deeds:
1. Common Requirements
o Original copy of the Deed or Instrument (Original Copy + 2
duplicate copies)If the original copy cannot be produced, the
duplicate original or certified true copy shall be presented
accompanied with a sworn affidavit executed by the interested
party why the original copy cannot be presented.
o Owner’s copy of the Certificate of Title or Co-owner’s copy if
one has been issued. (Original Copy + 2 duplicate copies)
o Latest Tax Declaration if the property is an unregistered land.
(Original Copy + 2 duplicate copies)
2. Specific Requirements
1. Deed of Sale/Transfer
xxxx
For Corporation
1. Secretary’s Certificate or Board Resolution to Sell or
Purchase (Original Copy + Duplicate Copy)
2. Articles of Incorporation (for transferee corporation) (1
Certified Copy of the Original)
3. Certificate of the Securities and Exchange Commission
(SEC) that the Articles of Incorporation had been
registered . (1 Certified Copy of the Original)
4. For Condominium or Condominium Certificate of
Transfer, affidavit/certificate of the Condominium
Corporation that the sale/transfer does not violate the 60-
40 rule.(Original Copy + 1 Duplicate Copy)
5. Subsequent transfer of CCT requires Certificate of the
Condominium Management. (Original Copy)
6. Sale by a Corporation Sole, court order is
required.(Original copy of the Court Order)
Additional Requirements
xxxx
11. Condominium Projects
Master Deed (Original Copy + 1 Duplicate Copy)
Declaration of Restriction (Original Copy + 1 Duplicate
Copy)
Diagrammatic Floor Plan (Original Copy + 1 Duplicate
Copy)
If the Condominium Certificate of Title is issued for the first time
in the name of the registered owner, require the following:
o Certificate of Registration with the Housing and Land
Use Regulatory Board (Original Copy + 1 Duplicate Copy)
o Development Permit (Original Copy + 1 Duplicate Copy)
o License to Sell (Original Copy + 1 Duplicate Copy)45
Espenesin, by his own explanation, relied on nothing more than
Serrano, who he "came to know and considered as representative of
both parties," and Serrano’s interpretation of the MOA that Serrano
had brought with him.
On the whole, there is sufficient ground to engender a well-founded
belief that respondents Espenesin and Serrano committed prohibited
acts listed in Sections 3(a) and (e) of Republic Act No. 3019.
As regards Yuchengco and Cheng, apart from Ampil’s general
assertions that the two, as officers of MICO, benefited from the
alteration of the CCTs, there is a dearth of evidence pointing to their
collective responsibility therefor. While the fact of alteration was
admitted by respondents and was affirmed in the Ombudsman’s
finding of fact, there is nothing that directly links Yuchengco and
Cheng to the act.
We are aware that the calibration of evidence to assess whether a
prima facie graft case exists against respondents is a question of fact.
We have consistently held that the Supreme Court is not a trier of
facts, more so in the consideration of the extraordinary writ of
certiorari where neither questions of fact nor law are entertained, but
only questions of lack or excess of jurisdiction or grave abuse of
discretion.46 In this case, however, certiorari will lie, given that the
Ombudsman made no finding at all on respondents possible liability
for violation of Sections 3(a) and (e) of Republic Act No. 3019.
We hasten to reiterate that we are only dealing herein with the
preliminary investigation aspect of this case. We do not adjudge
respondents’ guilt or the lack thereof. The assertions of Espenesin
and Serrano on the former’s good faith in effecting the alteration and
the pending arbitration case before the Construction Industry
Arbitration Commission involving the correct division of MICO’s and
ASB’s net saleable areas in The Malayan Tower are matters of
defense which they should raise during trial of the criminal case.
As regards the administrative liability of Espenesin, the basic principle
in the law of public officers is the three-fold liability rule, which states
that the wrongful acts or omissions of a public officer, Espenesin in
these cases, may give rise to civil, criminal and administrative liability.
An action for each can proceed independently of the others.47
On this point, we find that the appellate court erred when it affirmed
the Ombudsman’s last ruling that Espenesin is not administratively
liable.
Misconduct is a transgression of some established and definite rule of
action, more particularly, unlawful behavior or gross negligence by a
public officer.48
In Grave Misconduct, as distinguished from Simple Misconduct, the
elements of corruption, clear intent to violate the law or flagrant
disregard of established rules, must be manifest49 and established by
substantial evidence. Grave Misconduct necessarily includes the
lesser offense of Simple Misconduct.50 Thus, a person charged with
Grave Misconduct may be held liable for Simple Misconduct if the
misconduct does not involve any of the elements to qualify the
misconduct as grave.51
In (G.R. No. 199115), the elements particular to Grave Misconduct
are, by the Ombudsman’s own finding, present. Corruption, as an
element of Grave Misconduct, consists in the act of an official or
fiduciary person who unlawfully and wrongfully uses his station or
character to procure some benefit for himself or for another person,
contrary to duty and the rights of others.52 This has already been
demonstrated as discussed above. And, there is here a manifest
disregard for established rules on land registration by a Register of
Deeds himself. As he himself admits in his letter, Espenesin erased
the name of ASB on the specified CCTs because he believed that
Serrano’s request for the re-issuance thereof in MICO’s name
constituted simple error.
Section 108 of Presidential Decree No. 1529 provides:
Section 108. Amendment and alteration of certificates. No erasure,
alteration, or amendment shall be made upon the registration book
after the entry of a certificate of title or of a memorandum thereon and
the attestation of the same be Register of Deeds, except by order of
the proper Court of First Instance. A registered owner of other person
having an interest in registered property, or, in proper cases, the
Register of Deeds with the approval of the Commissioner of Land
Registration, may apply by petition to the court upon the ground that
the registered interests of any description, whether vested,
contingent, expectant or inchoate appearing on the certificate, have
terminated and ceased; or that new interest not appearing upon the
certificate have arisen or been created; or that an omission or error
was made in entering a certificate or any memorandum thereon, or,
on any duplicate certificate; or that the same or any person on the
certificate has been changed; or that the registered owner has
married, or, if registered as married, that the marriage has been
terminated and no right or interests of heirs or creditors will thereby
be affected; or that a corporation which owned registered land and
has been dissolved has not convened the same within three years
after its dissolution; or upon any other reasonable ground; and the
court may hear and determine the petition after notice to all parties in
interest, and may order the entry or cancellation of a new certificate,
the entry or cancellation of a memorandum upon a certificate, or
grant any other relief upon such terms and conditions, requiring
security or bond if necessary, as it may consider proper; Provided,
however, That this section shall not be construed to give the court
authority to reopen the judgment or decree of registration, and that
nothing shall be done or ordered by the court which shall impair the
title or other interest of a purchaser holding a certificate for value and
in good faith, or his heirs and assigns, without his or their written
consent. Where the owner's duplicate certificate is not presented, a
similar petition may be filed as provided in the preceding section.
The foregoing clearly speaks of a court order prior to any erasure,
alteration or amendment upon a certificate of title.
In reversing its prior ruling, the Ombudsman cavalierly dismisses the
fact of Espenesin already signing the CCTs issued in ASB’s name as
"only a part of the issuance process because the final step in the
titling procedure is indeed the release of the certificate of title."53 The
Ombudsman further ruled:
Considering that prior to the release of titles, Espenesin merely
rectified what was represented to this office as error in the
preparation of typing or the certificates, hence, it is wrong to subject
him to an administrative sanction. This is bolstered by the fact that, at
the time of release (and perhaps even up to the present time), there
was no final determination yet from the land registration court as to
who has a better right to the property in question.54 (Emphasis
supplied).
This statement of the Ombudsman is virtually a declaration of
Espenesin’s misconduct. It highlights Espenesin’s awareness and
knowledge that ASB and MICO are two different and separate
entities, albeit having entered into a joint venture for the building of
"The Malayan Tower."
As Registrar of Deeds, Espenesin was duty bound to inquire and
ascertain the reason for Serrano’s new instruction on those specific
set of CCTs and not just heed Serrano’s bidding. He heads the Office
of Register of Deeds which is constituted by law as "a public
repository of records of instruments affecting registered or
unregistered lands x x x in the province or city wherein such office is
situated." He should not have so easily taken Serrano’s word that the
amendment Serrano sought was to correct simple and innocuous
error. Espenesin could have then easily asked, as he is obliged to, for
a contract or an authenticated writing to ascertain which units and
parking slots were really allotted for ASB and MICO. His actions
would then be based on what is documented and not merely by a
lame claim of bona fides mistake.
Moreover, Espenesin was previously presented a MOA, and
consulted this same MOA, in the initial preparation and issuance of
the 38 CCTs in ASB’s name. Certainly, a Registrar of Deeds who is
required by law to be a member of the legal profession,55 possesses
common sense and prudence to ask for documents on which to base
his corrections. Reliance on the mere word of even the point person
for the transaction, smacks of gross negligence when all transactions
with the Office of the Register of Deeds, involving as it does
registration of property, ought to be properly recorded and
documented.
That the Office of the Register of Deeds requires documentation in
the registration of property, whether as an original or a subsequent
registration, brooks no argument. Again, and it cannot be overlooked
that, Espenesin initially referred to a MOA albeit Serrano worked on
the registration transaction for both ASB and MICO. Subsequently,
Serrano returns, bearing ostensible authority to transact even for
ASB, and Espenesin fails to ask for documentation for the correction
Serrano sought to be made, and simply relies on Serrano’s word.
We are baffled by the Registrar of Deeds’ failure to require
documentation which would serve as his basis for the correction. The
amendment sought by Serrano was not a mere clerical change of
registered name; it was a substantial one, changing ownership of 38
units in The Malayan Tower from one entity, ASB, to another, MICO.
Even just at Serrano’s initial request for correction of the CCTs, a red
flag should have gone up for a Registrar of Deeds.1âwphi1
Espenesin splits hairs when he claims that it is "in the Registration
Book where the prohibition to erase, alter, or amend, without court
order, applies." We disagree with Espenesin. Chapter IV on
Certificate of Title of Presidential Decree No. 1529,56 specifically
Sections 40, 42 and 43 belie the claim of Espenesin:
Section 40. Entry of Original Certificate of Title. Upon receipt by the
Register of Deeds of the original and duplicate copies of the original
certificate of title the same shall be entered in his record book and
shall be numbered, dated, signed and sealed by the Register of
Deeds with the seal of his office. Said certificate of title shall take
effect upon the date of entry thereof. The Register of Deeds shall
forthwith send notice by mail to the registered owner that his owner's
duplicate is ready for delivery to him upon payment of legal fees.
Section 42. Registration Books. The original copy of the original
certificate of title shall be filed in the Registry of Deeds. The same
shall be bound in consecutive order together with similar certificates
of title and shall constitute the registration book for titled properties.
Section 43. Transfer Certificate of Title. The subsequent certificate of
title that may be issued by the Register of Deeds pursuant to any
voluntary or involuntary instrument relating to the same land shall be
in like form, entitled "Transfer Certificate of Title", and likewise issued
in duplicate. The certificate shall show the number of the next
previous certificate covering the same land and also the fact that it
was originally registered, giving the record number, the number of the
original certificate of title, and the volume and page of the registration
book in which the latter is found.
Recording or entry of the titles, whether an original or a subsequent
transfer certificate of title in the record, is simultaneous with the
signing by the Register of Deeds. The signature on the certificate by
the Registrar of Deeds is accompanied by the dating, numbering and
sealing of the certificate. All these are part of a single registration
process. Where there has been a completed entry in the Record
Book, as in this case where the Ombudsman found that "the
signature of Espenesin is already affixed on the CCTs, and on its
face, it was explicitly declared that the titles have already been
entered in the Registration Book of the Register of Deeds of Pasig
City on March 11, 2005 at 11:55 a.m.," the Register of Deeds can no
longer tamper with entries, specially the very name of the titleholder.
The law says that the certificate of title shall take effect upon the date
of entry thereof.
To further drive home the point, as Registrar of Deeds, Espenesin
knew full well that "there is no final determination yet from the land
registration court as to who has a better right to the property in
question." Espenesin’s attempt to minimize the significance of a
Registrar of Deed’s signature on a CCT only aggravates the lack of
prudence in his action. The change in the titleholder in the CCTs from
ASB to MICO was an official documentation of a change of
ownership. It definitely cannot be characterized as simple error.
Grave misconduct, of which Espenesin has been charged, consists in
a public officer’s deliberate violation of a rule of law or standard of
behavior. It is regarded as grave when the elements of corruption,
clear intent to violate the law, or flagrant disregard of established
rules are present.57 In particular, corruption as an element of grave
misconduct consists in the official’s unlawful and wrongful use of his
station or character to procure some benefit for himself or for another
person, contrary to duty and the rights of others.58
In sum, the actions of Espenesin clearly demonstrate a disregard of
well-known legal rules.59 The penalty for Grave Misconduct is
dismissalfrom service with the accessory penalties of forfeiture of
retirement benefits, cancellation of eligibility, and perpetual
disqualification from reemployment in the government service,
including government-owned or controlled corporation.60
WHEREFORE, the petition in G.R. No. 192685 is PARTIALLY
GRANTED. The Resolution of the Ombudsman dated 30 April 2008
in OMB-C-C-07-0444-J is REVERSED and SET ASIDE. The
Ombudsman is hereby directed to file the necessary Information for
violation of Sections 3(a) and (e) of Republic Act No. 3019 against
public respondent Policarpio L. Espenesin and private respondent
Francis Serrano.
The petition in G.R. No. 199115 is GRANTED. The Decision of the
Court of Appeals dated 28 September 2011 in CA-G.R. SP No.
113171 and the Order dated 13 July 2009 of the Ombudsman in
OMB-C-A-07-0474-J are REVERSED and SET ASIDE. Respondent
Policarpio L. Espenesin is GUlLTY of Grave Misconduct and we,
thus, impose the penalty of DIMISSAL from service. However, due to
his retirement from the service, we order forfeiture of all his retirement
pay and benefits.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION MARIANO C. DEL CASTILLO
Associate Justice Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
1
Constitution, Art. XI, Secs. 12-13.
2
Id.; The Ombudsman Act of 1989, Secs. 13 and 15.
3
Rollo (G.R. No. 192685), pp. 31-41.
4
Id. at 50-55.
5
Metropolitan Bank and Trust Co. v. ASB Holdings, Inc., 545
Phil. 604, 610 (2007).
6
Id. at 612.
7
Rollo (G.R. No. 192685), pp. 66-75.
8
3RD Recital, paragraph C of the MOA. Id. at 66.
9
Id. at 67-68.
10
Unit Nos.: 706, 902, 907, 911, 912, 914, 918, 1805, 1807,
1809, 1810, 1811, 1814, 1815, 1816, 1818, 2204, 2207, 2208,
2209, 2210, 2211, 2212, 2214, 2215, 2217, 2302, 2303, 2304,
2306, 2309, 2311, 2312, 2314, 2315, 2318, ₱5 and 2316. Id. at
34.
11
Id. at 200-202.
12
Id. at 203.
13
Id. at 204.
14
Entitled, "Property Registration Decree."
Section 108. Amendment and alteration of certificates. No
erasure, alteration, or amendment shall be made upon
the registration book after the entry of a certificate of title
or of a memorandum thereon and the attestation of the
same be Register of Deeds, except by order of the proper
Court of First Instance. A registered owner of other
person having an interest in registered property, or, in
proper cases, the Register of Deeds with the approval of
the Commissioner of Land Registration, may apply by
petition to the court upon the ground that the registered
interests of any description, whether vested, contingent,
expectant or inchoate appearing on the certificate, have
terminated and ceased; or that new interest not appearing
upon the certificate have arisen or been created; or that
an omission or error was made in entering a certificate or
any memorandum thereon, or, on any duplicate
certificate; or that the same or any person on the
certificate has been changed; or that the registered owner
has married, or, if registered as married, that the marriage
has been terminated and no right or interests of heirs or
creditors will thereby be affected; or that a corporation
which owned registered land and has been dissolved has
not convened the same within three years after its
dissolution; or upon any other reasonable ground; and the
court may hear and determine the petition after notice to
all parties in interest, and may order the entry or
cancellation of a new certificate, the entry or cancellation
of a memorandum upon a certificate, or grant any other
relief upon such terms and conditions, requiring security
or bond if necessary, as it may consider proper; Provided,
however, That this section shall not be construed to give
the court authority to reopen the judgment or decree of
registration, and that nothing shall be done or ordered by
the court which shall impair the title or other interest of a
purchaser holding a certificate for value and in good faith,
or his heirs and assigns, without his or their written
consent. Where the owner's duplicate certificate is not
presented, a similar petition may be filed as provided in
the preceding section.
All petitions or motions filed under this Section as well as
under any other provision of this Decree after original
registration shall be filed and entitled in the original case
in which the decree or registration was entered.
15
Rollo (G.R. No. 192685), pp. 56-65.
16
Id. at 35-37.
17
Constitution, Art. XI, Sec. 13.
18
Constitution, Art. XI, Sec. 12.
19
ABS-CBN Broadcasting Corporation v. Office of the
Ombudsman, G.R. No. 133347, 15 October 2008, 569 SCRA
59, 75.
20
Vergara v. Ombudsman, G.R. No. 174567, 12 March 2009,
580 SCRA 693, 708; Presidential Commission on Good
Government v. Desierto, 563 Phil. 517, 525-526 (2007).
21
ABS-CBN Broadcasting Corporation v. Office of the
Ombudsman, supra note 19 at 75-76.
22
Baviera v. Zoleta, 535 Phil. 292, 314 (2006).
23
Vergara v. Ombudsman, supra note 20 at 709.
24
Rollo (G.R. No. 192685), p. 31.
25
Id. at 31-32.
26
Id. at 62-63.
27
Id. at 38-39.
28
Sison v. People, G.R. Nos. 170339 and 170398-403, 9 March
2010, 614 SCRA 670, 679.
29
Office of the Ombudsman (Mindanao) v. Cruzabra, G.R. No.
183507, 24 February 2010, 613 SCRA 549, 552.
30
Section 57. Procedure in registration of conveyances. An
owner desiring to convey his registered land in fee simple shall
execute and register a deed of conveyance in a form sufficient
in law. The Register of Deeds shall thereafter make out in the
registration book a new certificate of title to the grantee and
shall prepare and deliver to him an owner's duplicate certificate.
The Register of Deeds shall note upon the original and
duplicate certificate the date of transfer, the volume and page of
the registration book in which the new certificate is registered
and a reference by number to the last preceding certificate. The
original and the owner's duplicate of the grantor's certificate
shall be stamped "cancelled." The deed of conveyance shall be
filled and indorsed with the number and the place of registration
of the certificate of title of the land conveyed.
31
Entitled, "Property Registration Decree."
Section 108. Amendment and alteration of certificates. No
erasure, alteration, or amendment shall be made upon
the registration book after the entry of a certificate of title
or of a memorandum thereon and the attestation of the
same be Register of Deeds, except by order of the proper
Court of First Instance. A registered owner of other
person having an interest in registered property, or, in
proper cases, the Register of Deeds with the approval of
the Commissioner of Land Registration, may apply by
petition to the court upon the ground that the registered
interests of any description, whether vested, contingent,
expectant or inchoate appearing on the certificate, have
terminated and ceased; or that new interest not appearing
upon the certificate have arisen or been created; or that
an omission or error was made in entering a certificate or
any memorandum thereon, or, on any duplicate
certificate; or that the same or any person on the
certificate has been changed; or that the registered owner
has married, or, if registered as married, that the marriage
has been terminated and no right or interests of heirs or
creditors will thereby be affected; or that a corporation
which owned registered land and has been dissolved has
not convened the same within three years after its
dissolution; or upon any other reasonable ground; and the
court may hear and determine the petition after notice to
all parties in interest, and may order the entry or
cancellation of a new certificate, the entry or cancellation
of a memorandum upon a certificate, or grant any other
relief upon such terms and conditions, requiring security
or bond if necessary, as it may consider proper; Provided,
however, That this section shall not be construed to give
the court authority to reopen the judgment or decree of
registration, and that nothing shall be done or ordered by
the court which shall impair the title or other interest of a
purchaser holding a certificate for value and in good faith,
or his heirs and assigns, without his or their written
consent. Where the owner's duplicate certificate is not
presented, a similar petition may be filed as provided in
the preceding section.
All petitions or motions filed under this Section as well as
under any other provision of this Decree after original
registration shall be filed and entitled in the original case
in which the decree or registration was entered.
32
Supra note 28 at 679-682.
33
Rollo (G.R. No. 199115), pp. 174-176.
34
Metropolitan Bank and Trust Company v. Tobias III, G.R. No.
177780, 25 January 2012, 664 SCRA 165, 177-178.
35
Balangauan v. Court of Appeals, Special Nineteenth Division,
Cebu City, G.R. No. 174350, 13 August 2008, 562 SCRA 184,
207.
36
390 Phil. 912 (2000).
37
Id. at 945-946.
38
Fuentes, Jr. v. Office of the Ombudsman, 511 Phil. 402, 415
(2005).
39
Galario v. Office of the Ombudsman (Mindanao), G.R. No.
166797, 10 July 2007, 527 SCRA 190, 204.
40
Casing v. Ombudsman, G.R. No. 192334, 13 June 2012, 672
SCRA 500, 509 citing Metropolitan Bank and Trust Company v.
Gonzales, G.R. No. 180165, 7 April 2009, 584 SCRA 631, 641.
41
Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221
SCRA 349, 360.
42
Rollo (G.R. No. 192685), p. 203.
43
Rollo (G.R. No. 199115), pp. 79-80.
44
Id. at 79.
45
See http://nreaphilippines.com/question-on-philippine-real-
estate/land-registration-procedure/ last visited 21 July 2013.
46
See Sec. 1, Rule 45 in relation to Sec. 1, Rule 65 of the
Rules of Court; Angeles v. Gutierrez, G.R. Nos. 189161 and
189173, 21 March 2012, 668 SCRA 803.
47
Domingo v. Rayala, G.R. Nos. 155831, 155840 and 158700,
18 February 2008, 546 SCRA 90, 112.
48
Estarija v. Ranada, 525 Phil. 718, 728 (2006); Bureau of
Internal Revenue v. Organo, 468 Phil. 111, 118 (2004).
49
Villanueva v. Court of Appeals, 528 Phil. 432, 442 (2006);
Civil Service Commission v. Lucas, 361 Phil. 486, 490-491
(1999).
50
Santos v. Rasalan, 544 Phil. 35, 43 (2007); Civil Service
Commission v. Ledesma, 508 Phil. 569, 580 (2005).
51
Santos v. Rasalan, id.
52
Office of the Ombudsman v. Miedes, Sr., G.R. No. 176409,
27 February 2008, 547 SCRA 148, 157.
53
Rollo (G.R. No. 199115), p. 184.
54
Id.
55
Sec. 9, Presidential Decree No. 1529.
56
Section 39. Preparation of decree and Certificate of Title.
After the judgment directing the registration of title to land has
become final, the court shall, within fifteen days from entry of
judgment, issue an order directing the Commissioner to issue
the corresponding decree of registration and certificate of title.
The clerk of court shall send, within fifteen days from entry of
judgment, certified copies of the judgment and of the order of
the court directing the Commissioner to issue the
corresponding decree of registration and certificate of title, and
a certificate stating that the decision has not been amended,
reconsidered, nor appealed, and has become final. Thereupon,
the Commissioner shall cause to be prepared the decree of
registration as well as the original and duplicate of the
corresponding original certificate of title. The original certificate
of title shall be a true copy of the decree of registration. The
decree of registration shall be signed by the Commissioner,
entered and filed in the Land Registration Commission. The
original of the original certificate of title shall also be signed by
the Commissioner and shall be sent, together with the owner's
duplicate certificate, to the Register of Deeds of the city or
province where the property is situated for entry in his
registration book.
Section 40. Entry of Original Certificate of Title. x x x.
Section 41. Owner's duplicate certificate of title. The
owner's duplicate certificate of title shall be delivered to
the registered owner or to his duly authorized
representative. If two or more persons are registered
owners, one owner's duplicate certificate may be issued
for the whole land, or if the co-owners so desire, a
separate duplicate may be issued to each of them in like
form, but all outstanding certificates of title so issued shall
be surrendered whenever the Register of Deeds shall
register any subsequent voluntary transaction affecting
the whole land or part thereof or any interest therein. The
Register of Deeds shall note on each certificate of title a
statement as to whom a copy thereof was issued.
Section 42. Registration Books. x x x.
Section 43. Transfer Certificate of Title. x x x.
57
Imperial, Jr. v. Government Service Insurance System, G.R.
No. 191224, 4 October 2011, 658 SCRA 497, 506.
58
National Power Corporation v. Civil Service Commission,
G.R. No. 152093, 24 January 2012, 663 SCRA 492, 495.
59
National Power Corporation v. Civil Service Commission, id.;
Jamsani-Rodriguez v. Justices Ong, Hernandez, Ponferrada,
A.M. 8-19-SBJ, 24 August 2010.
60
Section 22, Rule XIV of the Omnibus Rules Implementing
Book V of the Administrative Code of 1987.
Notes:
Rimando v Naguilian Emission Center
SECOND DIVISION
G.R. No. 198860 July 23, 2012
RESOLUTION
REYES, J.:
Before us is a petition for review on certiorari1 under Rule 45 of the
Rules of Court seeking to annul and set aside Decision2 dated March
30, 2011 of the Court of Appeals (CA) in CA-G.R. SP NO. 112152.
The Facts
The present controversy stemmed from a petition for mandamus and
damages filed before Branch 67 of the Regional Trial Court (RTC) of
Bauang, La Union, by Naguilian Emission Testing Center, Inc.,
represented by its President, Rosemarie Llarenas (respondent)
against Abraham P. Rimando (petitioner), who, at the time material to
the case, was the sitting mayor of the Municipality of Naguilian, La
Union.
The petition prayed for the issuance of a writ of mandamus to compel
the petitioner to issue a business permit in favor of the respondent.
In support of its plea, the respondent claimed that its business is
being conducted on a parcel of land which formerly belonged to the
national government but later on certified by the Department of
Environment and Natural Resources (DENR) as an alienable and
disposable land of the public domain. The respondent had operated
its business of emission testing on the land from 2005 to 2007. On
January 18, 2008, the respondent filed an application for the renewal
of its business permit and paid the corresponding fees therefor.
The petitioner, however, refused to issue a business permit unless
and until the respondent executes a contract of lease with the
Municipality of Naguilian. The respondent was amenable to signing
such contract subject to some proposed revisions, which, however,
were not acceptable to the petitioner. The parties did not reach a
common ground hence, the petition for mandamus.
The Ruling of the RTC
On May 26, 2009, the RTC denied the petition3 for lack of merit based
on the ratiocinations that: (a) the Municipality of Naguilian is the
declared owner of the subject parcel of land by virtue of Tax
Declaration No. 002-01197; (b) under Section 6A.01 of the Revenue
Code of the Municipality of Naguilian, the municipality has the right to
require the petitioner to sign a contract of lease because its business
operation is being conducted on a real property owned by the
municipality; and (c) a mayor’s duty to issue business permits is
discretionary in nature which may not be enforced by a mandamus
writ. The decretal portion of the decision reads:
WHEREFORE, premises considered, the petition is DENIED for lack
of merit.
SO ORDERED.4
The Ruling of the CA
Unwaivering, the respondent appealed to the CA. In its Decision5
dated March 30, 2011, the CA held that the appeal was dismissible
on the ground of mootness considering that the period for which the
business period was being sought had already lapsed. As such, any
ruling on the matter would bring no practical relief. Nonetheless, the
CA proceeded to resolve the issues involved in the appeal for
academic purposes.
The CA disagreed with the RTC and found that the factual milieu of
the case justifies the issuance of a writ of mandamus. The CA
reasoned that the tax declaration in the name of the municipality was
insufficient basis to require the execution of a contract of lease as a
condition sine qua non for the renewal of a business permit. The CA
further observed that Sangguniang Bayan Resolution No. 2007-81,
upon which the municipality anchored its imposition of rental fees,
was void because it failed to comply with the requirements of the
Local Government Code and its Implementing Rules and
Regulations.
The CA held that the petitioner may not be held liable for damages
since his action or inaction, for that matter, was done in the
performance of official duties that are legally protected by the
presumption of good faith. The CA likewise stressed that the civil
action filed against the petitioner had already become moot and
academic upon the expiration of his term as the mayor of Naguilian,
La Union.
Despite its incessant declarations on the mootness of the case, the
CA disposed of the appeal in this wise:
WHEREFORE, the Decision dated 26 May 2009 of the Regional Trial
Court, First Judicial Region, Bauang, La Union, Branch 67, in Special
Civil Action Case No. 72-BG, is hereby REVERSED and SET ASIDE.
SO ORDERED.6
The petitioner moved for reconsideration7 questioning the
pronouncement of the CA that Sangguniang Bayan Resolution No.
2007-81 was void and arguing that a petition for mandamus is not the
proper vehicle to determine the issue on the ownership of the subject
land. The motion was denied in the CA Resolution8 dated September
30, 2011.
The petitioner is now before this Court reiterating the arguments
raised in his motion for reconsideration.
Our Ruling
We agree with the CA that the petition for mandamus has already
become moot and academic owing to the expiration of the period
intended to be covered by the business permit.
An issue or a case becomes moot and academic when it ceases to
present a justiciable controversy so that a determination thereof
would be without practical use and value9 or in the nature of things,
cannot be enforced.10 In such cases, there is no actual substantial
relief to which the applicant would be entitled to and which would be
negated by the dismissal of the petition.11 As a rule, courts decline
jurisdiction over such case, or dismiss it on ground of mootness.12
The objective of the petition for mandamus to compel the petitioner to
grant a business permit in favor of respondent corporation for the
period 2008 to 2009 has already been superseded by the passage of
time and the expiration of the petitioner’s term as mayor. Verily then,
the issue as to whether or not the petitioner, in his capacity as mayor,
may be compelled by a writ of mandamus to release the respondent’s
business permit ceased to present a justiciable controversy such that
any ruling thereon would serve no practical value. Should the writ be
issued, the petitioner can no longer abide thereby; also, the effectivity
date of the business permit no longer subsists.
While the CA is not precluded from proceeding to resolve the
otherwise moot appeal of the respondent, we find that the decretal
portion of its decision was erroneously couched.
The CA’s conclusions on the issue of ownership over the subject land
and the invalidity of Sangguniang Bayan Resolution No. 2007-81,
aside from being unsubstantiated by convincing evidence, can no
longer be practically utilized in favor of the petitioner. Thus, the
overriding and decisive factor in the final disposition of the appeal
was its mootness and the CA should have dismissed the same along
with the petition for mandamus that spawned it.
More importantly, a mayor cannot be compelled by mandamus to
issue a business permit since the exercise of the same is a delegated
police power hence, discretionary in nature. This was the
pronouncement of this Court in Roble Arrastre, Inc. v. Hon. Villaflor 13
where a determination was made on the nature of the power of a
mayor to grant business permits under the Local Government Code,14
viz:
Central to the resolution of the case at bar is a reading of Section
444(b)(3)(iv) of the Local Government Code of 1991, which provides,
thus:
SEC. 444. The Chief Executive: Powers, Duties, Functions and
Compensation.
(b) For efficient, effective and economical governance the
purpose of which is the general welfare of the municipality and
its inhabitants pursuant to Section 16 of this Code, the
municipal mayor shall:
xxxx
3) Initiate and maximize the generation of resources and
revenues, and apply the same to the implementation of
development plans, program objectives and priorities as
provided for under Section 18 of this Code, particularly those
resources and revenues programmed for agro-industrial
development and country-wide growth and progress, and
relative thereto, shall:
xxxx
(iv) Issue licenses and permits and suspend or revoke the
same for any violation of the conditions upon which said
licenses or permits had been issued, pursuant to law or
ordinance.
As Section 444(b)(3)(iv) so states, the power of the municipal mayor
to issue licenses is pursuant to Section 16 of the Local Government
Code of 1991, which declares:
SEC. 16. General Welfare. – Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential
to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the people to
a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain
peace and order, and preserve the comfort and convenience of their
inhabitants.
Section 16, known as the general welfare clause, encapsulates the
delegated police power to local governments.1âwphi1 Local
government units exercise police power through their respective
legislative bodies. Evidently, the Local Government Code of 1991 is
unequivocal that the municipal mayor has the power to issue licenses
and permits and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued,
pursuant to law or ordinance. x x x
xxxx
Section 444(b)(3)(iv) of the Local Government Code of 1991,
whereby the power of the respondent mayor to issue license and
permits is circumscribed, is a manifestation of the delegated police
power of a municipal corporation. Necessarily, the exercise thereof
cannot be deemed ministerial. As to the question of whether the
power is validly exercised, the matter is within the province of a writ of
certiorari, but certainly, not of mandamus.15 (Citations omitted)
Indeed, as correctly ruled by the RTC, the petition for mandamus filed
by the respondent is incompetent to compel the exercise of a mayor’s
discretionary duty to issue business permits.
WHEREFORE, premises considered, the Decision dated March 30,
2011 of the Court of Appeals in CA-G.R. SP No. 112152 is hereby
SET ASIDE. The Decision dated May 26, 2009 of the Regional Trial
Court of Bauang, La Union is REINSTATED.
SO ORDERED.
BIENVENIDO L. REYES
Associate justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
Chairperson, Second Division
MARIANO C. DEL CASTILLO
Associate justice
JIOSE PORTUGAL PEREZ
Associate justice
MARIA LOURDES P.A. SERENO
Associate justice
CERTIFICATION
I certify that the conclusions in the above Resolution had been
reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
* Additional member per Special Order No. 1257 dated July 19,
2012, in lieu of the absence of Associate Justice Arturo D.
Brion.
1
Rollo, pp. 4-20.
2
Penned by Associate Justice Japar B. Dimaampao, with
Associate Justices Mariflor P. Punzalan Castillo and Jane
Aurora C. Lantion, concurring; id. at 22-22.
3
Under the sala of Judge Ferdinand A. Fe; id. at 46-49.
4
Id. at 49.
5
Supra note 2.
6
Rollo, p. 33.
7
Id. at 34-41.
8
Id. at 42-43.
9
Philippine Airlines, Inc. v. Pascua, 456 Phil. 425, 436 (2003).
10
Lanuza, Jr. v. Yuchengco, 494 Phil. 125, 133 (2005); See
also Gonzales v. Narvasa, 392 Phil.518, 522 (2000); Villarico v.
Court of Appeals, 424 Phil. 26 (2002); King v. Court of Appeals,
514 Phil. 465, 470 (2005).
11
Soriano Vda. De Dabao v. Court of Appeals, 469 Phil. 928
(2004).
12
Gunsi, Sr. v. Commissioners, The Commission on Elections,
G.R. No. 168792, February 23, 2009, 580 SCRA 70, 76.
13
531 Phil. 30 (2006).
14
Although the case involved the issuance of a business permit
for arrastre service, the general power of a mayor to issue
business permits is encapsulated in the same legal provision of
the Local Government Code without distinguishing the nature of
the business for which a permit is sought.
15
Supra note 13, at 43-46
Notes:
ADMINISTRATIVE POWERS
Third, the word may in the text of the statute71 implies that the
availability of the tax credit benefit is neither unrestricted nor
mandatory.72 There is no absolute right conferred upon respondent,
or any similar taxpayer, to avail itself of the tax credit remedy
whenever it chooses; "neither does it impose a duty on the part of the
government to sit back and allow an important facet of tax collection
to be at the sole control and discretion of the taxpayer."73 For the tax
authorities to compel respondent to deduct the 20 percent discount
from either its gross income or its gross sales74 is, therefore, not only
to make an imposition without basis in law, but also to blatantly
contravene the law itself.
What Section 4.a of RA 7432 means is that the tax credit benefit is
merely permissive, not imperative. Respondent is given two options --
either to claim or not to claim the cost of the discounts as a tax credit.
In fact, it may even ignore the credit and simply consider the gesture
as an act of beneficence, an expression of its social conscience.
Granting that there is a tax liability and respondent claims such cost
as a tax credit, then the tax credit can easily be applied. If there is
none, the credit cannot be used and will just have to be carried over
and revalidated75 accordingly. If, however, the business continues to
operate at a loss and no other taxes are due, thus compelling it to
close shop, the credit can never be applied and will be lost altogether.
In other words, it is the existence or the lack of a tax liability that
determines whether the cost of the discounts can be used as a tax
credit. RA 7432 does not give respondent the unfettered right to avail
itself of the credit whenever it pleases. Neither does it allow our tax
administrators to expand or contract the legislative mandate. "The
‘plain meaning rule’ or verba legis in statutory construction is thus
applicable x x x. Where the words of a statute are clear, plain and
free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation."76
Tax Credit Benefit
Deemed Just Compensation
Fourth, Sections 2.i and 4 of RR 2-94 deny the exercise by the State
of its power of eminent domain. Be it stressed that the privilege
enjoyed by senior citizens does not come directly from the State, but
rather from the private establishments concerned. Accordingly, the
tax credit benefit granted to these establishments can be deemed as
their just compensation for private property taken by the State for
public use.77
The concept of public use is no longer confined to the traditional
notion of use by the public, but held synonymous with public interest,
public benefit, public welfare, and public convenience.78 The discount
privilege to which our senior citizens are entitled is actually a benefit
enjoyed by the general public to which these citizens belong. The
discounts given would have entered the coffers and formed part of
the gross sales of the private establishments concerned, were it not
for RA 7432. The permanent reduction in their total revenues is a
forced subsidy corresponding to the taking of private property for
public use or benefit.
As a result of the 20 percent discount imposed by RA 7432,
respondent becomes entitled to a just compensation. This term refers
not only to the issuance of a tax credit certificate indicating the correct
amount of the discounts given, but also to the promptness in its
release. Equivalent to the payment of property taken by the State,
such issuance -- when not done within a reasonable time from the
grant of the discounts -- cannot be considered as just compensation.
In effect, respondent is made to suffer the consequences of being
immediately deprived of its revenues while awaiting actual receipt,
through the certificate, of the equivalent amount it needs to cope with
the reduction in its revenues.79
Besides, the taxation power can also be used as an implement for the
exercise of the power of eminent domain.80 Tax measures are but
"enforced contributions exacted on pain of penal sanctions"81 and
"clearly imposed for a public purpose."82 In recent years, the power to
tax has indeed become a most effective tool to realize social justice,
public welfare, and the equitable distribution of wealth.83
While it is a declared commitment under Section 1 of RA 7432, social
justice "cannot be invoked to trample on the rights of property owners
who under our Constitution and laws are also entitled to protection.
The social justice consecrated in our [C]onstitution [is] not intended to
take away rights from a person and give them to another who is not
entitled thereto."84 For this reason, a just compensation for income
that is taken away from respondent becomes necessary. It is in the
tax credit that our legislators find support to realize social justice, and
no administrative body can alter that fact.
To put it differently, a private establishment that merely breaks even85
-- without the discounts yet -- will surely start to incur losses because
of such discounts. The same effect is expected if its mark-up is less
than 20 percent, and if all its sales come from retail purchases by
senior citizens. Aside from the observation we have already raised
earlier, it will also be grossly unfair to an establishment if the
discounts will be treated merely as deductions from either its gross
income or its gross sales. Operating at a loss through no fault of its
own, it will realize that the tax credit limitation under RR 2-94 is
inutile, if not improper. Worse, profit-generating businesses will be put
in a better position if they avail themselves of tax credits denied those
that are losing, because no taxes are due from the latter.
Grant of Tax Credit
Intended by the Legislature
Fifth, RA 7432 itself seeks to adopt measures whereby senior citizens
are assisted by the community as a whole and to establish a program
beneficial to them.86 These objectives are consonant with the
constitutional policy of making "health x x x services available to all
the people at affordable cost"87 and of giving "priority for the needs of
the x x x elderly."88 Sections 2.i and 4 of RR 2-94, however, contradict
these constitutional policies and statutory objectives.
Furthermore, Congress has allowed all private establishments a
simple tax credit, not a deduction. In fact, no cash outlay is required
from the government for the availment or use of such credit. The
deliberations on February 5, 1992 of the Bicameral Conference
Committee Meeting on Social Justice, which finalized RA 7432,
disclose the true intent of our legislators to treat the sales discounts
as a tax credit, rather than as a deduction from gross income. We
quote from those deliberations as follows:
"THE CHAIRMAN (Rep. Unico). By the way, before that ano, about
deductions from taxable income. I think we incorporated there a
provision na - on the responsibility of the private hospitals and
drugstores, hindi ba?
SEN. ANGARA. Oo.
THE CHAIRMAN. (Rep. Unico), So, I think we have to put in also a
provision here about the deductions from taxable income of that
private hospitals, di ba ganon 'yan?
MS. ADVENTO. Kaya lang po sir, and mga discounts po nila affecting
government and public institutions, so, puwede na po nating hindi
isama yung mga less deductions ng taxable income.
THE CHAIRMAN. (Rep. Unico). Puwede na. Yung about the private
hospitals. Yung isiningit natin?
MS. ADVENTO. Singit na po ba yung 15% on credit. (inaudible/did
not use the microphone).
SEN. ANGARA. Hindi pa, hindi pa.
THE CHAIRMAN. (Rep. Unico) Ah, 'di pa ba naisama natin?
SEN. ANGARA. Oo. You want to insert that?
THE CHAIRMAN (Rep. Unico). Yung ang proposal ni Senator
Shahani, e.
SEN. ANGARA. In the case of private hospitals they got the grant of
15% discount, provided that, the private hospitals can claim the
expense as a tax credit.
REP. AQUINO. Yah could be allowed as deductions in the
perpetrations of (inaudible) income.
SEN. ANGARA. I-tax credit na lang natin para walang cash-out ano?
REP. AQUINO. Oo, tax credit. Tama, Okay. Hospitals ba o lahat ng
establishments na covered.
THE CHAIRMAN. (Rep. Unico). Sa kuwan lang yon, as private
hospitals lang.
REP. AQUINO. Ano ba yung establishments na covered?
SEN. ANGARA. Restaurant lodging houses, recreation centers.
REP. AQUINO. All establishments covered siguro?
SEN. ANGARA. From all establishments. Alisin na natin 'Yung kuwan
kung ganon. Can we go back to Section 4 ha?
REP. AQUINO. Oho.
SEN. ANGARA. Letter A. To capture that thought, we'll say the grant
of 20% discount from all establishments et cetera, et cetera, provided
that said establishments - provided that private establishments may
claim the cost as a tax credit. Ganon ba 'yon?
REP. AQUINO. Yah.
SEN. ANGARA. Dahil kung government, they don't need to claim it.
THE CHAIRMAN. (Rep. Unico). Tax credit.
SEN. ANGARA. As a tax credit [rather] than a kuwan - deduction,
Okay.
REP. AQUINO Okay.
SEN. ANGARA. Sige Okay. Di subject to style na lang sa Letter A".89
Special Law
Over General Law
Sixth and last, RA 7432 is a special law that should prevail over the
Tax Code -- a general law. "x x x [T]he rule is that on a specific
matter the special law shall prevail over the general law, which shall
be resorted to only to supply deficiencies in the former."90 In addition,
"[w]here there are two statutes, the earlier special and the later
general -- the terms of the general broad enough to include the
matter provided for in the special -- the fact that one is special and
the other is general creates a presumption that the special is to be
considered as remaining an exception to the general,91 one as a
general law of the land, the other as the law of a particular case."92 "It
is a canon of statutory construction that a later statute, general in its
terms and not expressly repealing a prior special statute, will
ordinarily not affect the special provisions of such earlier statute."93
RA 7432 is an earlier law not expressly repealed by, and therefore
remains an exception to, the Tax Code -- a later law. When the
former states that a tax credit may be claimed, then the requirement
of prior tax payments under certain provisions of the latter, as
discussed above, cannot be made to apply. Neither can the instances
of or references to a tax deduction under the Tax Code94 be made to
restrict RA 7432. No provision of any revenue regulation can supplant
or modify the acts of Congress.
WHEREFORE, the Petition is hereby DENIED. The assailed Decision
and Resolution of the Court of Appeals AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division
W E C O N C U R:
ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA
Associate Justice Associate Justice
Footnotes
1
Rollo, pp. 9-31.
2
Id., pp. 33-41. Penned by Justice Rebecca de Guia-
Salvador, with the concurrence of Justices Godardo A.
Jacinto (Fourth Division chair) and Eloy R. Bello Jr.
(member, now retired).
3
Id., p. 43.
4
CA Decision, p. 9; rollo, p. 41.
5
Penned by Judge Ramon O. De Veyra with the
concurrence of Judge Amancio Q. Saga. Presiding Judge
(now Presiding Justice) Ernesto D. Acosta dissented.
6
Penned by Presiding Judge (now Presiding Justice)
Ernesto D. Acosta with the concurrence of Judge (now
Justice) Juanito C. Castañeda, Jr. Judge Amancio Q.
Saga dissented.
7
Id., pp. 2-4 & 34-36.
8
The Petition was deemed submitted for decision on June
10, 2004, upon receipt by the Court of respondent’s
Memorandum, signed by Atty. Joy Ann Marie G. Nolasco.
Petitioner’s Memorandum -- signed by Solicitor General
Alfredo L. Benipayo, Assistant Solicitor General Ma.
Antonia Edita C. Dizon, and Solicitor Magtanggol M.
Castro -- was filed on June 2, 2004.
9
Petitioner’s Memorandum, p. 5; rollo, p. 96. Original in
upper case.
10
Entitled "An Act to Maximize the Contribution of Senior
Citizens to Nation Building, Grant Benefits and Special
Privileges and for other purposes," this law took effect in
1992. See Santos, Jr. v. Llamas, 379 Phil. 569, 577,
January 20, 2000.
11
§4.a of RA 7432.
12
Ibid.
13
Republic Act No. (RA) 8424 as amended by RAs 8761
and 9010.
Likewise, the term tax credit is not defined in Presidential
Decree No. (PD) 1158, otherwise known as the National
Internal Revenue Code of 1977 as amended.
14
Garner (ed.), Black’s Law Dictionary (8th ed., 1999), p.
1501.
15
Smith, West’s Tax Law Dictionary (1993), pp. 177-178.
16
Oran and Tosti, Oran’s Dictionary of the Law (3rd ed.,
2000), p. 124.
17
Malapo-Agato and San Andres-Francisco, Dictionary of
Accounting Terms (2003), p. 258.
18
Oran and Tosti, supra, p. 135.
19
Smith, supra, p. 196.
20
The itemized deductions considered as allowable
deductions from gross income include ordinary and
necessary expenses, interest, taxes, losses, bad debts,
depreciation, depletion of oil and gas wells and mines,
charitable and other contributions, research and
development expenditures, and pension trust
contributions.
21
"While taxable income is based on the method of
accounting used by the taxpayer, it will almost always
differ from accounting income. This is so because of a
fundamental difference in the ends the two concepts
serve. Accounting attempts to match cost against
revenue. Tax law is aimed at collecting revenue. It is
quick to treat an item as income, slow to recognize
deductions or losses. Thus, the tax law will not recognize
deductions for contingent future losses except in very
limited situations. Good accounting, on the other hand,
requires their recognition. Once this fundamental
difference in approach is accepted, income tax
accounting methods can be understood more easily."
Consolidated Mines, Inc. v. CTA, 157 Phil. 608, August
29, 1974, per Makalintal, CJ. Underscoring supplied.
22
Smith, supra, pp. 177-178.
23
Id., p. 196.
24
BPI-Family Savings Bank, Inc. v. CA, 386 Phil. 719,
727, April 12, 2000.
25
§4.105-1 of BIR Revenue Regulations No. (RR) 7-95.
26
Commissioner of Internal Revenue v. Seagate
Technology (Phils.), Inc., GR No. 153866, February 11,
2005, pp. 13-15.
27
Commissioner of Internal Revenue v. Procter & Gamble
Philippine Manufacturing Corp., 204 SCRA 377, 388,
December 2, 1991.
28
Deoferio Jr. and Tan Torres, Know Your CTRP:
Comments on the Amendments to the National Internal
Revenue Code under Republic Act No. 8424 (2nd
printing, 1999), p. 61.
29
Commissioner of Internal Revenue v. S.C. Johnson and
Son, Inc., 368 Phil. 388, 405-406, June 25, 1999.
30
Pilipinas Kao, Inc. v. CA, 423 Phil. 834, 838-839, 851,
December 18, 2001.
31
CA Decision, p. 9; rollo, pp. 40-41.
32
Id., pp. 7-8; id., pp. 39-40.
33
§4.a of RA 7432.
34
D. and E. of Rule V of the "Rules And Regulations in
the Implementation of RA 7432, The Act to Maximize the
Contribution of Senior Citizens to Nation Building, Grant
Benefits and Special Privileges and for other purposes,"
approved per Resolution No. 1 (Series 1993) issued by
the National Economic and Development Authority
(NEDA) Social Development Committee.
35
§2.i of RR 2-94, issued August 23, 1993. See also §4
thereof.
36
Gove (Ed. in Chief), Webster’s Third New International
Dictionary of the English Language, Unabridged (1976),
p. 646.
37
Oran and Tosti, supra, p. 149.
38
Garner (ed.), supra, p. 498.
39
An income statement, profit and loss statement, or
statement of income and expenses is a "financial
statement prepared from accounts and designed to show
the several elements entering into the computation of net
income for a given period." Malapo-Agato and San
Andres-Francisco, Dictionary of Accounting Terms
(2003), p. 136.
40
Valix and Peralta, Financial Accounting, Volume One
(2002), p. 347.
41
Editorial Staff of Prentice-Hall, Inc., Encyclopedic
Dictionary of Business Finance (2nd printing, 1962), pp.
117-118. See Malapo-Agato and San Andres-Francisco,
supra, p. 49.
42
This means that the customer is entitled to a 5%
discount, if payment is made within 10 days from the
invoice date. Beyond that, but within 30 days from the
invoice date, the gross amount of the invoice price is due.
Valix and Peralta, supra, p. 347.
43
Editorial Staff of Prentice-Hall, Inc., supra, pp. 503-504.
44
Garner (Ed.), supra, p. 498.
45
Editorial Staff of Prentice-Hall, Inc., supra, pp. 607-609.
46
Valix and Peralta, supra, p. 453. See Malapo-Agato and
San Andres-Francisco, supra, p. 263.
47
Id., p. 453.
48
Editorial Staff of Prentice-Hall, Inc., supra, pp. 607-609.
49
Garner (Ed.), supra, p. 498.
50
Functional, as opposed to the natural, presentation is
the traditional and common form of the income statement.
Functional presentation classifies expenses according to
their function -- whether as part of cost of sales, selling
activities, administrative activities, or other operating
activities. The Accounting Standards Council (ASC) in the
Philippines does not prescribe any format, the choice
being based on that which "fairly presents the elements of
the enterprise performance." If the functional format is
used, an additional disclosure of the nature of the
expenses is necessary. Valix and Peralta, supra, pp. 155
& 162.
51
Garner (Ed.), supra, p. 1365. See Valix and Peralta,
supra, pp. 156-160 & 453.
On the other hand, purchase discounts are deducted --
also along with returns, allowances, rebates and other
similar revenues -- from gross purchases to arrive at net
purchases.
52
Valix and Peralta, supra, p. 347.
53
Id., pp. 347 & 456.
54
Id., p. 347.
55
Except when presented for managerial or cost
accounting reports, these items are chiefly internal and
are neither disseminated to the general public nor
attested to by the external auditors.
56
Cost of goods sold is the most commonly used term
referring to a particular section in the financial statements,
reports, or notes to financial statements of trading or
merchandising concerns. For a manufacturing business,
however, the term used is cost of goods manufactured
and sold or cost of goods produced and sold; for a service
enterprise, cost of services; and, in general, cost of sales
of a business. See Malapo-Agato and San Andres-
Francisco, supra, p. 73.
57
Gross income, profit or margin is the "difference
between sales revenues and manufacturing costs as an
intermediate step in the computation of operating profits
or net income." It is also the "excess of sales over the
cost of goods sold." Malapo-Agato and San Andres-
Francisco, supra, p. 129.
More simply, gross sales less sales discounts, returns,
allowances, rebates, and other similar expenses equal
net sales; and net sales less cost of sales equal gross
income.
58
Paragraphs 7 to 10 of §27(A), Chapter IV, Title II of RA
8424 as amended.
59
§106(D)(2), Chapter I, Title IV of RA 8424 as amended.
60
See D. of Rule V of the "Rules And Regulations in the
Implementation of RA 7432, The Act to Maximize the
Contribution of Senior Citizens to Nation Building, Grant
Benefits and Special Privileges and for other purposes,"
approved per Resolution No. 1 (Series 1993) issued by
the National Economic and Development Authority
(NEDA) Social Development Committee.
61
Theoretically, an allowance for sales discount account
can also be set up by a business establishment in its
books of account at the end of its accounting period to
reflect its estimates of cash discounts on open accounts
based on past experience. The accounting entry for this
account is then reversed at the beginning of the next
accounting period, so that such discounts can again be
normally charged to the sales discount account. Valix and
Peralta, supra, p. 348.
62
Commissioner of Internal Revenue v. Vda. de Prieto,
109 Phil. 592, 597, September 30, 1960, per Gutierrez
David, J. (citing Miller v. US, 294 US 435, 439-441, 55
S.Ct. 440,442, March 4, 1935; and Lynch v. Tilden
Produce Co., 265 US 315, 321-322, 44 S.Ct. 488, 490,
May 26, 1924).
63
Molina v. Rafferty, 37 Phil. 545, 555, February 1, 1918,
per Malcolm, J. (citing Government ex rel. Municipality of
Cardona v. Municipality of Binangonan, 34 Phil. 518, 520-
521, March 29, 1916; In re Allen, 2 Phil. 630, 640,
October 29, 1903; and Pennoyer v. McConnaughy, 11
S.Ct. 699, 706, April 20, 1891).
64
Lim Hoa Ting v. Central Bank of the Philippines, 104
Phil. 573, 580, September 24, 1958 (citing Griswold, A
Summary of the Regulations Problem, 54 Harvard Law
Review 3, 398, 406, January 1941).
65
Eastern Shipping Lines, Inc. v. Philippine Overseas
Employment Administration, 166 SCRA 533, 544,
October 18, 1988, per Cruz, J.
66
Lim Hoa Ting v. Central Bank of the Philippines, supra,
p. 580.
67
Pilipinas Kao, Inc. v. CA, supra, p. 858.
68
Wise & Co., Inc. v. Meer, 78 Phil. 655, 676, June 30,
1947.
69
Macailing v. Andrada, 31 SCRA 126, 139, January 30,
1970, per Sanchez, J.
70
See Banco Filipino Savings and Mortgage Bank v. Hon.
Navarro, 158 SCRA 346, 354, July 28, 1987; and Valerio
v. Secretary of Agriculture & Natural Resources, 117 Phil.
729, 733, April 23, 1963.
71
§4.a of RA 7432.
72
See also Manufacturers Hanover Trust Co. and/or
Chemical Bank v. Guerrero, 445 Phil. 770, 782, February
19, 2003 (citing Shauf v. CA, 191 SCRA 713, 738,
November 27, 1990; Ayala Land, Inc. v. Spouses Carpo,
345 SCRA 579, 585, November 22, 2000; and In re
Guariña, 24 Phil. 37, 41, January 8, 1913).
73
San Carlos Milling Co., Inc. v. Commissioner of Internal
Revenue, 228 SCRA 135, 142, November 23, 1993, per
Padilla, J.
74
§§2.i & 4 of RR 2-94.
75
§230(B), Chapter III, Title VIII of RA 8424 as amended.
76
National Federation of Labor v. NLRC, 383 Phil. 910,
918, March 2, 2000, per De Leon Jr., J. (quoting Fianza v.
People’s Law Enforcement Board, 243 SCRA 165, 178,
March 31, 1995, per Romero, J.).
77
See City of Cebu v. Spouses Dedamo, 431 Phil. 524,
532, May 7, 2002.
78
Reyes v. National Housing Authority, 443 Phil. 603,
610-611, January 20, 2003 (citing Heirs of Juancho
Ardona v. Hon. Reyes, 210 Phil. 187, 197-201, October
26, 1983).
79
See Land Bank of the Philippines v. De Leon, 437 Phil.
347, 359, September 10, 2002 (citing Estate of Salud
Jimenez v. Philippine Export Processing Zone, 349 SCRA
240, 264, January 16, 2001).
80
See Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform, 175
SCRA 343, 371, July 14, 1989 (citing Powell v.
Pennsylvania, 127 US 678, 683, 8 S.Ct. 992, 995, April 9,
1888).
81
Republic v. COCOFED, 423 Phil. 735, 764, December
14, 2001, per Panganiban, J.
82
Id. at 765.
83
National Power Corp. v. City of Cabanatuan, 449 Phil.
233, 248, April 9, 2003 (citing Vitug and Acosta, Tax Law
and Jurisprudence [2nd ed., 2000], pp.1-2).
84
Salonga v. Farrales, 192 Phil. 614, 624, July 10, 1981,
per Fernandez, J.
85
Break-even is the point at which a business neither
generates an income nor incurs a loss from its operations.
86
Items 1 & 2, 2nd paragraph of §1 of RA 7432.
87
1st paragraph of §1 of RA 7432 and §11 of Article XIII
of the 1987 Constitution.
88
Ibid. The constitutional references are reiterated in the
sponsorship speech delivered on January 23, 1992 by
Representative Dionisio S. Ojeda, regarding House Bill
No. (HB) 35335, per Committee Report No. 01730, pp 38-
39 (jointly submitted by the Committee on Revision of
Laws, the Committee on Family Relations and Population,
and the Committee on Ways and Means). HB 35335 was
approved on second reading without any amendment.
89
Deliberations of the Bicameral Conference Committee
Meeting on Social Justice, February 5, 1992, pp. 22-24.
Italics supplied.
90
Leyte Asphalt & Mineral Oil Co., Ltd. v. Block, Johnston
& Greenbaum, 52 Phil. 429, 432, December 14, 1928, per
Romualdez, J.
91
City Mayor v. The Chief Police Constabulary, 128 Phil.
674, 687, October 31, 1967.
92
Manila Railroad Co. v. Rafferty, 40 Phil. 224, 229,
September 30, 1919, per Johnson, J. (citing State v. Stoll,
84 US 425, 431, 436, 17 Wall. 425, 431, 436, October
term, 1873).
93
Ibid, per Johnson, J. (citing Minnesota v. Hitchcock, 185
US, 373, 396-397, 22 S.Ct. 650, 659, May 5, 1902, Cass
County v. Gillett, 100 US 585, 593, 10 Otto 585, 593,
October term, 1879; and New Jersey Steamboat Co. v.
Collector, 85 US 478, 490-491, 18 Wall 478, 490-491,
October term, 1873).
94
Not even the provisions of PD 1158 -- reiterated later in
RA 8424 as amended -- change the Court’s observations
on tax liability, prior tax payments, sales discount, tax
deduction, and tax credit. PD 1158 was a general law that
preceded RA 7432, a special law; thus, the latter prevails
over the former. With all the more reason should the rules
on statutory construction apply.
Notes:
Solid Homes v Payawal
FIRST DIVISION
CRUZ, J.:
We are asked to reverse a decision of the Court of Appeals sustaining the jurisdiction of the
Regional Trial Court of Quezon City over a complaint filed by a buyer, the herein private
respondent, against the petitioner, for delivery of title to a subdivision lot. The position of the
petitioner, the defendant in that action, is that the decision of the trial court is null and void ab
initio because the case should have been heard and decided by what is now called the
Housing and Land Use Regulatory Board.
The complaint was filed on August 31, 1982, by Teresita Payawal against Solid Homes, Inc.
before the Regional Trial Court of Quezon City and docketed as Civil Case No. Q-36119.
The plaintiff alleged that the defendant contracted to sell to her a subdivision lot in Marikina
on June 9, 1975, for the agreed price of P 28,080.00, and that by September 10, 1981, she
had already paid the defendant the total amount of P 38,949.87 in monthly installments and
interests. Solid Homes subsequently executed a deed of sale over the land but failed to
deliver the corresponding certificate of title despite her repeated demands because, as it
appeared later, the defendant had mortgaged the property in bad faith to a financing
company. The plaintiff asked for delivery of the title to the lot or, alternatively, the return of all
the amounts paid by her plus interest. She also claimed moral and exemplary damages,
attorney's fees and the costs of the suit.
Solid Homes moved to dismiss the complaint on the ground that the court had no jurisdiction,
this being vested in the National Housing Authority under PD No. 957. The motion was
denied. The defendant repleaded the objection in its answer, citing Section 3 of the said
decree providing that "the National Housing Authority shall have exclusive jurisdiction to
regulate the real estate trade and business in accordance with the provisions of this Decree."
After trial, judgment was rendered in favor of the plaintiff and the defendant was ordered to
deliver to her the title to the land or, failing this, to refund to her the sum of P 38,949.87 plus
interest from 1975 and until the full amount was paid. She was also awarded P 5,000.00
moral damages, P 5,000.00 exemplary damages, P 10,000.00 attorney's fees, and the costs
of the suit.1
Solid Homes appealed but the decision was affirmed by the respondent court, 2 which also
berated the appellant for its obvious efforts to evade a legitimate obligation, including its
dilatory tactics during the trial. The petitioner was also reproved for its "gall" in collecting the
further amount of P 1,238.47 from the plaintiff purportedly for realty taxes and registration
expenses despite its inability to deliver the title to the land.
In holding that the trial court had jurisdiction, the respondent court referred to Section 41 of
PD No. 957 itself providing that:
and declared that "its clear and unambiguous tenor undermine(d) the (petitioner's)
pretension that the court a quo was bereft of jurisdiction." The decision also dismissed the
contrary opinion of the Secretary of Justice as impinging on the authority of the courts of
justice. While we are disturbed by the findings of fact of the trial court and the respondent
court on the dubious conduct of the petitioner, we nevertheless must sustain it on the
jurisdictional issue.
The applicable law is PD No. 957, as amended by PD No. 1344, entitled "Empowering the
National Housing Authority to Issue Writs of Execution in the Enforcement of Its Decisions
Under Presidential Decree No. 957." Section 1 of the latter decree provides as follows:
The language of this section, especially the italicized portions, leaves no room for doubt that
"exclusive jurisdiction" over the case between the petitioner and the private respondent is
vested not in the Regional Trial Court but in the National Housing Authority. 3
The private respondent contends that the applicable law is BP No. 129, which confers on
regional trial courts jurisdiction to hear and decide cases mentioned in its Section 19, reading
in part as follows:
(1) In all civil actions in which the subject of the litigation is incapable
of pecuniary estimation;
(2) In all civil actions which involve the title to, or possession of, real
property, or any interest therein, except actions for forcible entry into
and unlawful detainer of lands or buildings, original jurisdiction over
which is conferred upon Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts;
(8) In all other cases in which the demand, exclusive of interest and
cost or the value of the property in controversy, amounts to more than
twenty thousand pesos (P 20,000.00).
It stresses, additionally, that BP No. 129 should control as the later enactment, having been
promulgated in 1981, after PD No. 957 was issued in 1975 and PD No. 1344 in 1978.
This construction must yield to the familiar canon that in case of conflict between a general
law and a special law, the latter must prevail regardless of the dates of their enactment.
Thus, it has been held that-
The fact that one law is special and the other general creates a
presumption that the special act is to be considered as remaining an
exception of the general act, one as a general law of the land and the
other as the law of the particular case. 4
The circumstance that the special law is passed before or after the
general act does not change the principle. Where the special law is
later, it will be regarded as an exception to, or a qualification of, the
prior general act; and where the general act is later, the special
statute will be construed as remaining an exception to its terms,
unless repealed expressly or by necessary implication. 5
It is obvious that the general law in this case is BP No. 129 and PD No. 1344 the special law.
The argument that the trial court could also assume jurisdiction because of Section 41 of PD
No. 957, earlier quoted, is also unacceptable. We do not read that provision as vesting
concurrent jurisdiction on the Regional Trial Court and the Board over the complaint
mentioned in PD No. 1344 if only because grants of power are not to be lightly inferred or
merely implied. The only purpose of this section, as we see it, is to reserve. to the aggrieved
party such other remedies as may be provided by existing law, like a prosecution for the act
complained of under the Revised Penal Code. 6
On the competence of the Board to award damages, we find that this is part of the exclusive
power conferred upon it by PD No. 1344 to hear and decide "claims involving refund and any
other claims filed by subdivision lot or condominium unit buyers against the project owner,
developer, dealer, broker or salesman." It was therefore erroneous for the respondent to
brush aside the well-taken opinion of the Secretary of Justice that-
The same may be said with respect to claims for attorney's fees
which are recoverable either by agreement of the parties or pursuant
to Art. 2208 of the Civil Code (1) when exemplary damages are
awarded and (2) where the defendant acted in gross and evident bad
faith in refusing to satisfy the plaintiff 's plainly valid, just and
demandable claim.
As a result of the growing complexity of the modern society, it has become necessary to
create more and more administrative bodies to help in the regulation of its ramified activities.
Specialized in the particular fields assigned to them, they can deal with the problems thereof
with more expertise and dispatch than can be expected from the legislature or the courts of
justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial
powers in what is now not unreasonably called the fourth department of the government.
It remains to state that, contrary to the contention of the petitioner, the case of Tropical
Homes v. National Housing Authority 10 is not in point. We upheld in that case the
constitutionality of the procedure for appeal provided for in PD No. 1344, but we did not rule
there that the National Housing Authority and not the Regional Trial Court had exclusive
jurisdiction over the cases enumerated in Section I of the said decree. That is what we are
doing now.
It is settled that any decision rendered without jurisdiction is a total nullity and may be struck
down at any time, even on appeal before this Court. 11 The only exception is where the party
raising the issue is barred by estoppel, 12 which does not appear in the case before us. On
the contrary, the issue was raised as early as in the motion to dismiss filed in the trial court
by the petitioner, which continued to plead it in its answer and, later, on appeal to the
respondent court. We have no choice, therefore, notwithstanding the delay this decision will
entail, to nullify the proceedings in the trial court for lack of jurisdiction.
WHEREFORE, the challenged decision of the respondent court is REVERSED and the
decision of the Regional Trial Court of Quezon City in Civil Case No. Q-36119 is SET ASIDE,
without prejudice to the filing of the appropriate complaint before the Housing and Land Use
Regulatory Board. No costs.
SO ORDERED.
Footnotes
3 Under E.O. No. 648 dated Feb. 7, 1981, the regulatory functions
conferred on the National Housing Authority under P.D. Nos. 957,
1216, 1344 and other related laws were transferred to the Human
Settlements Regulatory Commission, which was renamed Housing
and Land Use Regulatory Board by E.O. No. 90 dated Dec. 17, 1986.
5 59 C.J., 1056-1058.
6 Article 316.
EN BANC
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast and
overwhelming powers of government. His only guarantee against oppression and tyranny are
his fundamental liberties under the Bill of Rights which shield him in times of need. The Court
is now called to decide whether to uphold a citizen's basic due process rights, or the
government's ironclad duties under a treaty. The bugle sounds and this Court must once
again act as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No.
1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes
in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime both in the state where it was
committed and the state where the criminal may have escaped; the extradition treaty with the
Republic of Indonesia and the intention of the Philippines to enter into similar treaties with
other interested countries; and the need for rules to guide the executive department and the
courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty
Between the Government of the Republic of the Philippines and the Government of the
United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The
Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said
treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a),
Article 7 thereof (on the admissibility of the documents accompanying an extradition request
upon certification by the principal diplomatic or consular officer of the requested state
resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign
Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private
respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand
Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of
Florida, and other supporting documents for said extradition. Based on the papers submitted,
private respondent appears to be charged in the United States with violation of the following
provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United
States; two [2] counts; Maximum Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum
Penalty — 5 years on each count);
On the same day, petitioner issued Department Order No. 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation
and assessment" of the extradition request and the documents in support thereof. The panel
found that the "official English translation of some documents in Spanish were not attached
to the request and that there are some other matters that needed to be addressed" (p. 15,
Rollo).
Later, private respondent requested that preliminary, he be given at least a copy of, or
access to, the request of the United States Government, and after receiving a copy of the
Diplomatic Note, a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July
13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing
requests for the following reasons:
It is only after the filing of the petition for extradition when the person sought
to be extradited will be furnished by the court with copies of the petition,
request and extradition documents and this Department will not pose any
objection to a request for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by
strict secrecy rules under United States law. The United States had to secure
orders from the concerned District Courts authorizing the United States to
disclose certain grand jury information to Philippine government and law
enforcement personnel for the purpose of extradition of Mr. Jimenez. Any
further disclosure of the said information is not authorized by the United
States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized
disclosure of the subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the interests of the
United States in any proceedings arising out of a request for extradition. The
Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
Such was the state of affairs when, on August 6, 1999, private respondent filed with the
Regional Trial Court of the National Capital Judicial Region a petition against the Secretary
of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of
Investigation, for mandamus (to compel herein petitioner to furnish private respondent the
extradition documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate the request
impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July
13, 1999); and prohibition (to restrain petitioner from considering the extradition request and
from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and
the Director of the NBI from performing any act directed to the extradition of private
respondent to the United States), with an application for the issuance of a temporary
restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled
to Branch 25 of said regional trial court stationed in Manila which is presided over by the
Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who
appeared in his own behalf, moved that he be given ample time to file a memorandum, but
the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set on
August 17, 1999 at 9:00 o'clock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the
issuance of a Preliminary Injunction on or before said date.
SO ORDERED.
I.
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING
LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE
PHILIPPINE EXTRADITION LAW;
III.
IV.
On August 17, 1999, the Court required private respondent to file his comment. Also issued,
as prayed for, was a temporary restraining order (TRO) providing:
The case was heard on oral argument on August 31, 1999, after which the parties, as
directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are
patent. However, a review of these issues as well as the extensive arguments of both
parties, compel us to delineate the focal point raised by the pleadings: During the evaluation
stage of the extradition proceedings, is private respondent entitled to the two basic due
process rights of notice and hearing? An affirmative answer would necessarily render the
proceedings at the trial court, moot and academic (the issues of which are substantially the
same as those before us now), while a negative resolution would call for the immediate lifting
of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track
the process leading to the filing of the extradition petition with the proper regional trial court.
Corollarily, in the event that private respondent is adjudged entitled to basic due process
rights at the evaluation stage of the extradition proceedings, would this entitlement constitute
a breach of the legal commitments and obligations of the Philippine Government under the
RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there
any conflict between private respondent's basic due process rights and the provisions of the
RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern
the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the
petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition
Treaty which was executed only on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law.
Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." The portions of the Decree relevant to the instant case
which involves a charged and not convicted individual, are abstracted as follows:
The request is made by the Foreign Diplomat of the Requesting State, addressed to the
Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of
arrest issued by the authority of the Requesting State having jurisdiction over
the matter, or some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in the
Philippines, if known, the acts or omissions complained of, and the time and
place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said law,
and the designation or description of the offense by the law, sufficient for
evaluation of the request; and
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign
Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request
fails to meet the requirements of this law and the relevant treaty or
convention, he shall forward the request together with the related documents
to the Secretary of Justice, who shall immediately designate and authorize an
attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority given the task of
evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the
executive authority must ascertain whether or not the request is supported by:
2. A statement of the facts of the offense and the procedural history of the
case;
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;
7. Such evidence as, according to the law of the Requested State, would
provide probable cause for his arrest and committal for trial if the offense had
been committed there;
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the
accompanying documents received in support of the request had been certified by the
principal diplomatic or consular officer of the Requested State resident in the Requesting
State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the
Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be
granted if the executive authority of the Requested State determines that the request is
politically motivated, or that the offense is a military offense which is not punishable under
non-military penal legislation."
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney
in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court of the province
or city, with a prayer that the court take the extradition request under consideration
(Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition,
shall, as soon as practicable, issue an order summoning the prospective extraditee to appear
and to answer the petition on the day and hour fixed in the order. The judge may issue a
warrant of arrest if it appears that the immediate arrest and temporary detention of the
accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to
prevent the flight of the prospective extraditee.
The Extradition Law does not specifically indicate whether the extradition proceeding is
criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof
provides that in the hearing of the extradition petition, the provisions of the Rules of Court,
insofar as practicable and not inconsistent with the summary nature of the proceedings, shall
apply. During the hearing, Section 8 of the Decree provides that the attorney having charge
of the case may, upon application by the Requesting State, represent the latter throughout
the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and
giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss
the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose
decision shall be final and immediately executory (Section 12, ibid.). The provisions of the
Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable
based on the application of the dual criminality rule and other conditions mentioned in Article
2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense
for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1âw phi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation
stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the Secretary of
Justice is to file the extradition petition after the request and all the supporting papers are
forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized
to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3],
Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that
the offense is a military offense which is not punishable under non-military penal legislation.
Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the
Secretary of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant
secretary at the Department of Foreign Affairs that his Department, in this regard, is merely
acting as a post office, for which reason he simply forwarded the request to the Department
of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking
lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to
determine the completeness of the documents and to evaluate the same to find out whether
they comply with the requirements laid down in the Extradition Law and the RP-US
Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of
Justice had no obligation to evaluate the extradition documents, the Department also had to
go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp.
24-25). Notably, it was also at this stage where private respondent insisted on the following;
(1) the right to be furnished the request and the supporting papers; (2) the right to be heard
which consists in having a reasonable period of time to oppose the request, and to present
evidence in support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority, one
abdicating its powers and the other enlarging its commission. The Department of Foreign
Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting
the instant petition as its own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in the process of
evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and
that it arrived at a well-founded judgment that the request and its annexed documents satisfy
the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could
not privately review the papers all by himself. He had to officially constitute a panel of
attorneys. How then could the DFA Secretary or his undersecretary, in less than one day,
make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by
itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is
purely an exercise of ministerial functions. At such stage, the executive authority has the
power: (a) to make a technical assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable; and (c) to make a
determination whether or not the request is politically motivated, or that the offense is a
military one which is not punishable under non-military penal legislation (tsn, August 31,
1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence,
said process may be characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-judicial power.
The power of investigation consists in gathering, organizing, and analyzing evidence, which
is a useful aid or tool in an administrative agency's performance of its rule-making or quasi-
judicial functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on
the functions of an investigatory body with the sole power of investigation. It does not
exercise judicial functions and its power is limited to investigating the facts and making
findings in respect thereto. The Court laid down the test of determining whether an
administrative body is exercising judicial functions or merely investigatory functions:
Adjudication signifies the exercise of power and authority to adjudicate upon the rights and
obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate
evidence submitted before it based on the facts and circumstances presented to it, and if the
agency is not authorized to make a final pronouncement affecting the parties, then there is
an absence of judicial discretion and judgment.
Because of these possible consequences, we conclude that the evaluation process is akin to
an administrative agency conducting an investigative proceeding, the consequences of
which are essentially criminal since such technical assessment sets off or commences the
procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As
described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In
essence, therefore, the evaluation process partakes of the nature of a criminal investigation.
In a number of cases, we had occasion to make available to a respondent in an
administrative case or investigation certain constitutional rights that are ordinarily available
only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the trial stage that had been advanced
to an earlier stage in the proceedings, such as the right to counsel and the right against self-
incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs.
Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right
against self-incrimination under Section 17, Article III of the 1987 Constitution which is
ordinarily available only in criminal prosecutions, extends to administrative proceedings
which possess a criminal or penal aspect, such as an administrative investigation of a
licensed physician who is charged with immorality, which could result in his loss of the
privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs.
Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a
medical practitioner, is an even greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against
a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we
therein ruled that since the investigation may result in forfeiture of property, the
administrative proceedings are deemed criminal or penal, and such forfeiture partakes the
nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970
[1962]), where the Court, citing American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an
indictment is presented the forfeiture can be included in the criminal case, such proceeding
is criminal in nature, although it may be civil in form; and where it must be gathered from the
statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If,
however, the proceeding does not involve the conviction of the wrongdoer for the offense
charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or
property right. No less is this true, but even more so in the case before us, involving as it
does the possible deprivation of liberty, which, based on the hierarchy of constitutionally
protected rights, is placed second only to life itself and enjoys precedence over property, for
while forfeited property can be returned or replaced, the time spent in incarceration is
irretrievable and beyond recompense.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a
criminal procedural statute is not well-taken. Wright is not authority for petitioner's conclusion
that his preliminary processing is not akin to a preliminary investigation. The characterization
of a treaty in Wright was in reference to the applicability of the prohibition against an ex post
facto law. It had nothing to do with the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding
enforced by public authority, whether sanctioned by age or custom, or newly devised in the
discretion of the legislative power, in furtherance of the general public good, which regards
and preserved these principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be
deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are
informed and impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and their having
been designed from earliest time to the present to meet the exigencies of an undefined and
expanding future. The requirements of due process are interpreted in both the United States
and the Philippines as not denying to the law the capacity for progress and improvement.
Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead
prefer to have the meaning of the due process clause "gradually ascertained by the process
of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs.
New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of
fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20
SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the
very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial and competent tribunal
(Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in administrative proceedings as well.
Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be
notified of any pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of the opposing
parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges
(Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which
are immediate threats to public health and decency, and the cancellation of a
passport of a person sought for criminal prosecution;
3. Where the twin rights have previously been offered but the right to
exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the
evaluation stage of the extradition proceedings fall under any of the described situations
mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government.
In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the
alleged offender, and the designation of the particular officer having authority to act in behalf
of the demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice,
summarizing the U.S. extradition procedures and principles, which are basically governed by
a combination of treaties (with special reference to the RP-US Extradition Treaty), federal
statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel.
In urgent cases, requests for the provincial arrest of an individual may be
made directly by the Philippine Department of Justice to the U.S. Department
of Justice, and vice-versa. In the event of a provisional arrest, a formal
request for extradition is transmitted subsequently through the diplomatic
channel.
4. At the hearing, the court must determine whether the person arrested is
extraditable to the foreign country. The court must also determine that (a) it
has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b)
the defendant is being sought for offenses for which the applicable treaty
permits extradition; and (c) there is probable cause to believe that the
defendant is the person sought and that he committed the offenses charged
(Ibid.)
6. If the court decides that the elements necessary for extradition are
present, it incorporates its determinations in factual findings and conclusions
of law and certifies the person's extraditability. The court then forwards this
certification of extraditability to the Department of State for disposition by the
Secretary of State. The ultimate decision whether to surrender an individual
rests with the Secretary of State (18 U.S.C. §3186).
From the foregoing, it may be observed that in the United States, extradition begins and
ends with one entity — the Department of State — which has the power to evaluate the
request and the extradition documents in the beginning, and, in the person of the Secretary
of State, the power to act or not to act on the court's determination of extraditability. In the
Philippine setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier mentioned (see pp.
10-12), then forwards the request to the Department of Justice for the preparation and filing
of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the
instant case, perfunctorily turned over the request to the Department of Justice which has
taken over the task of evaluating the request as well as thereafter, if so warranted, preparing,
filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the
person sought to be extradited be given due process rights by the Philippines in the
evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in
the evaluation process.
The United States, no doubt, shares the same interest as the Philippine Government that no
right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution
but of the United States as well, is sacrificed at the altar of expediency.
One of the basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even
the strongest moral conviction or the most urgent public need, subject only to
a few notable exceptions, will excuse the bypassing of an individual's rights.
It is no exaggeration to say that a person invoking a right guaranteed under
Article III of the Constitution is a majority of one even as against the rest of
the nation who would deny him that right (Association of Small Landowners
in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343,
375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or
convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-
tracked proceedings and adherence to fair procedures are, however, not always
incompatible. They do not always clash in discord. Summary does not mean precipitous
haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point,
there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In
interstate extradition, the governor of the asylum state may not, in the absence of mandatory
statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the
extradition papers, he may hold that federal and statutory requirements, which are
significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an
extradition treaty, the executive authority of the requested state has the power to deny the
behest from the requesting state. Accordingly, if after a careful examination of the extradition
documents the Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to the Department of
Justice for the filing of the extradition petition since non-compliance with the aforesaid
requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in
assuring compliance with the requirements of the law and the treaty since it even informed
the U.S. Government of certain problems in the extradition papers (such as those that are in
Spanish and without the official English translation, and those that are not properly
authenticated). In fact, petitioner even admits that consultation meetings are still supposed to
take place between the lawyers in his Department and those from the U.S. Justice
Department. With the meticulous nature of the evaluation, which cannot just be completed in
an abbreviated period of time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt action where notice and
hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action.
Is private respondent precluded from enjoying the right to notice and hearing at a later time
without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation
procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an
administrative if adverse to the person involved, may cause his immediate incarceration. The
grant of the request shall lead to the filing of the extradition petition in court. The "accused"
(as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not
only after the extradition petition is filed in court, but even during the evaluation proceeding
itself by virtue of the provisional arrest allowed under the treaty and the implementing law.
The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be
dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes
Section 7 of Article III which reads:
The above provision guarantees political rights which are available to citizens of the
Philippines, namely: (1) the right to information on matters of public concern, and (2) the
corollary right of access to official records documents. The general right guaranteed by said
provision is the right to information on matters of public concern. In its implementation, the
right of access to official records is likewise conferred. These cognate or related rights are
"subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed
and critical public opinion which alone can protect the values of democratic government
(Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July
1, 1999 do not fall under the guarantee of the foregoing provision since the matters
contained in the documents requested are not of public concern. On the other hand, private
respondent argues that the distinction between matters vested with public interest and
matters which are of purely private interest only becomes material when a third person, who
is not directly affected by the matters requested, invokes the right to information. However, if
the person invoking the right is the one directly affected thereby, his right to information
becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every
act of a public officer in the conduct of the governmental process is a matter of public
concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336).
This concept embraces a broad spectrum of subjects which the public may want to know,
either because these directly affect their lives or simply because such matters arouse the
interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]).
Hence, the real party in interest is the people and any citizen has "standing".
When the individual himself is involved in official government action because said action has
a direct bearing on his life, and may either cause him some kind of deprivation or injury, he
actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not
exactly the right to information on matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be informed of the nature and
cause of the accusation against him.
The right to information is implemented by the right of access to information within the control
of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996
ed., p. 337). Such information may be contained in official records, and in documents and
papers pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government
action from the U.S. Government. No official action from our country has yet been taken.
Moreover, the papers have some relation to matters of foreign relations with the U.S.
Government. Consequently, if a third party invokes this constitutional provision, stating that
the extradition papers are matters of public concern since they may result in the extradition
of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of
the interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done;
hence the invocation of the right is premature. Later, and in contrast, records of the
extradition hearing would already fall under matters of public concern, because our
government by then shall have already made an official decision to grant the extradition
request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondent's entitlement to notice and hearing during the evaluation stage of
the proceedings constitute a breach of the legal duties of the Philippine Government under
the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights
of notice and hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in good
faith. The observance of our country's legal duties under a treaty is also compelled by
Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war
as an instrument of national policy, adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of
international law form part of the law of the and land no further legislative action is needed to
make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law,
1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of
international law and the provisions of the constitution or statute of the local state. Efforts
should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the observance of the Incorporation Clause in
the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a
situation, however, where the conflict is irreconcilable and a choice has to be made between
a rule of international law and municipal law, jurisprudence dictates that municipal law should
be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales
vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that
such courts are organs of municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law
of the land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the principle lex posterior derogat
priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the Republic of the Philippines,
both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or
national law? En contrario, these two components of the law of the land are not pined
against each other. There is no occasion to choose which of the two should be upheld.
Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by
Presidential Decree No. 1069, as regards the basic due process rights of a prospective
extraditee at the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial determination of
the propriety of extradition, the rights of notice and hearing are clearly granted to the
prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference
to the U.S. extradition procedures also manifests this silence.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application
of the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose
no proscription. In fact, in interstate extradition proceedings as explained above, the
prospective extraditee may even request for copies of the extradition documents from the
governor of the asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the
action of the Department of Justice Panel of Attorneys. The confidentiality argument is,
however, overturned by petitioner's revelation that everything it refuses to make available at
this stage would be obtainable during trial. The Department of Justice states that the U.S.
District Court concerned has authorized the disclosure of certain grand jury information. If the
information is truly confidential, the veil of secrecy cannot be lifted at any stage of the
extradition proceedings. Not even during trial.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as
American jurisprudence and procedures on extradition, for any prohibition against the
conferment of the two basic due process rights of notice and hearing during the evaluation
stage of the extradition proceedings. We have to consider similar situations in jurisprudence
for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a
preliminary investigation since both procedures may result in the arrest of the respondent or
the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by
the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential
Decree No. 1069). Following petitioner's theory, because there is no provision of its
availability, does this imply that for a period of time, the privilege of the writ of habeas corpus
is suspended, despite Section 15, Article III of the Constitution which states that "[t]he
privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is
not available during the arrest of the prospective extraditee when the extradition petition has
already been filed in court since Presidential Decree No. 1069 does not provide therefor,
notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons,
except those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that
since these contraventions are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96
[1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997];
Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA
602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process
refers to the method or manner by which the law is enforced (Corona vs. United Harbor
Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least
disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears
that the Requesting State may have valid objections to the Requested State's non-
performance of its commitments under the Extradition Treaty are insubstantial and should
not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court
of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447
[1997]) where we ruled that in summary proceedings under Presidential Decree No. 807
(Providing for the Organization of the Civil Service Commission in Accordance with
Provisions of the Constitution, Prescribing its Powers and Functions and for Other
Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the
Integrated National Police who may be charged for Service-Connected Offenses and
Improving the Disciplinary System in the Integrated National Police, Appropriating Funds
Therefor and for other purposes), as amended by Presidential Decree No. 1707, although
summary dismissals may be effected without the necessity of a formal investigation, the
minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals:
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss
of property or employment, but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioner's favorable action on the
extradition request and the deprivation of private respondent's liberty is easily
comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against,
statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267
SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The
constitutional issue in the case at bar does not even call for "justice outside legality," since
private respondent's due process rights, although not guaranteed by statute or by treaty, are
protected by constitutional guarantees. We would not be true to the organic law of the land if
we choose strict construction over guarantees against the deprivation of liberty. That would
not be in keeping with the principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty
and government authority, he must ever hold the oar of freedom in the stronger arm, lest an
errant and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED
for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition
request and its supporting papers, and to grant him a reasonable period within which to file
his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having
been rendered moot and academic by this decision, the same is hereby ordered dismissed.
SO ORDERED.
Separate Opinions
There is, I agree with the majority, a right of access to such extradition documents
conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The
constitutional right to free access to information of public concern is circumscribed only by
the fact that the desired information is not among the species exempted by law from the
operation of the constitutional guaranty and that the exercise of the right conforms with such
reasonable conditions as may be prescribed by law.
I am not convinced that there is something so viciously wrong with, as to deny, the request of
private respondent to be furnished with copies of the extradition documents.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the
Extradition Treaty between the Government of the Republic of the Philippines and the
Government of the United States of America provides that in case of urgency, a Contracting
Party may request the provisional arrest of the person prior to the presentation of the request
for extradition. I see implicit in this provision that even after the request for extradition is
made and before a petition for extradition is filed with the courts, the possibility of an arrest
being made on the basis of a mere evaluation by the Executive on the request for extradition
by the foreign State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the
extraditee to be furnished, upon request, with a copy of the relevant documents and to file
his comment thereon is not necessarily anathema to the proceedings duly mandated by the
treaty to be made.
The petition in the case at bar raises one and only issue, which is the validity of the
Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on
August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to:
The petition itself categorically states that "(t)he issue sought to be presented and litigated
here is solely-the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to
hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is
there any other act, ruling, order, or decision, apart from the TRO already mentioned, of
respondent Judge that is being challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below on
August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the
instant petition has become moot and academic. This Court does not exercise jurisdiction
over cases which are moot and academic or those not ripe for judicial consideration.3
Assuming that the present case has not become moot and academic, still, it should be
dismissed for lack of merit.
The substantive issues raised in this case are: (a) whether a person whose extradition is
sought by a foreign state has due process rights under Section 2, Article III of the 1997
Constitution before the Department of Justice as the request for extradition is being
evaluated, or whether due process rights maybe invoked only upon the filing of a petition for
extradition before a regional trial court; and (b) whether or not private respondent has a right
of access to extradition documents under Section 7, Article III of the 1997 Constitution.
Petitioner contends that due process rights such as the right to be informed of the basis of
the request for extradition and to have an opportunity to controvert are not provided in the
extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the
proceedings. Further, he argues that the documents sought to be furnished to private
respondent only involve private concerns, and not matters of public concern to which the
people have a constitutional right to access.
While the evaluation process conducted by the Department of Justice is not exactly a
preliminary investigation of criminal cases, it is akin to a preliminary investigation because it
involves the basic constitutional rights of the person sought to be extradited. A person
ordered extradited is arrested, forcibly taken from his house, separated from his family and
delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness
are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense.
For this reason, he is entitled to have access to the evidence against him and the right to
controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation,
neither does either prohibit it. The right to due process is a universal basic right which is
deemed written into our laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the
innocent against hasty, malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the extradition
request and its accompanying documents by the Department of Justice cannot be
characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The
function and responsibilities of the Department of Justice in evaluating the extradition papers
involve the exercise of judgment. They involve a determination whether the request for
extradition conforms fully to the requirements of the extradition treaty and whether the
offense is extraditable. These include, among others, whether the offense for which
extradition is requested is a political or military offense (Article 3); whether the documents
and other informations required under Article 7(2) have been provided (Article 7); and
whether the extraditable offense is punishable under the laws of both contracting parties by
deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at
a correct judgment, the parties involved are entitled to be heard if the requirements of due
process and equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand access to
the documents relating to the request for extradition, suffice it to say, that any document
used in a proceeding that would jeopardize a person's constitutional rights is matter of public
concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere,"
so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern
because they, one way or another, directly or indirectly, affect the rights of life and liberty of
all the citizens as a whole.
But why must he wait until the petition for extradition is filed? As succinctly expressed, if the
right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted
at a time when the deprivation can still be prevented.4 Like the filing of an information in a
criminal case, the mere filing of a petition for extradition causes immediate impairment of the
liberty of the person sought to be extradited and a substantial curtailment of other rights. His
arrest may be immediately ordered by the regional trial court. He would be compelled to face
an open and public trial. He will be constrained to seek the assistance of counsel and incur
other expenses of litigation. The public eye would be directed at him with all the concomitant
intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition
strikes at the very core of liberty, invocation of due process rights can never be too early.
As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.
The human rights of person, whether citizen or alien, and the rights of the accused
guaranteed in our Constitution should take precedence over treaty rights claimed by a
contracting state. Stated otherwise, the constitutionally mandated duties of our government
to the individual deserve preferential consideration when they collide with its treaty
obligations to the government of another state. This is so although we recognize treaties as a
source of binding obligations under generally accepted principles of international law
incorporated in our Constitution as part of the law of the land.
Moreover, considering that the Extradition Treaty between the USA and Philippines appears
mute on the specific issue before us, the Court — in the exercise of its judicial power to find
and state what the law is — has this rare opportunity of setting a precedent that enhances
respect for human rights and strengthens due process of law.
As both majority and dissenting colleagues in the Court will recognize, American authorities
follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to
statute, the state Executive upon demand furnishes the would be extraditee or counsel
copies of pertinent documents as well as the request for extradition; and (2) the international
practice where the Executive department need not initially grant notice and hearing at all.
Rules of reciprocity and comity, however, should not bar us from applying internationally now
what appears the more reasonable and humane procedure, that is, the interstate practice
among Americans themselves. For in this case the American people should be among the
most interested parties.
Truly, what private respondent is asking our Executive department (notice, copies of
documents, and the opportunity to protect himself at the earliest time against probable peril)
does not, in my view, violate our Extradition Treaty with the USA. His request if granted
augurs well for transparency in interstate or intergovernmental relations rather than secrecy
which smacks of medieval diplomacy and the inquisition discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here, although it is
obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in
my view, entitled to our full protection against the hazards of extradition (or deportation,
similarly) from the very start. More so because, looking at the facts adduced at the hearing
and on the record of this case, the charges against him involve or are co-mingled with, if not
rooted in, certain offenses of a political nature or motivation such as the ones involving
alleged financial contributions to a major American political party. If so, long established is
the principle that extradition could not be utilized for political offenses or politically motivated
charges.
There may, of course, be other charges against private respondent in the USA. But then they
are, in my view, already tainted there with political color due to the highly charged partisan
campaign atmosphere now prevailing. That private respondent's cases will be exploited as
political fodder there is not far-fetched, hence the need here for cautious but comprehensive
deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are
construing; it is about constitutional and human rights we are most concerned.
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a
citizen's right to be given what is due to him. I join in his exposition of this Court's
constitutional duty to strike the correct balance between overwhelming Government power
and the protection of individual rights where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the question of why
there should be any debate at all on a plea for protection of one's liberty which, if granted,
will not result in any meaningful impediment of thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial or
talked about, should first be exposed to the indignity, expense, and anxiety of a public
denunciation in court before he may be informed of what the contracting states in an
extradition treaty have against him. There is no question that everything which respondent
Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at
this stage, he should be informed why he may be deported from his own country.
I see no ill effects which would arise if the extradition request and supporting documents are
shown to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its
supporting documents will merely determine whether or not the Philippines is complying with
its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all
criminal prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying
respondent Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether
the procedures and requirements under the relevant law and treaty have
been complied with by the Requesting Government. The constitutional rights
of the accused in all criminal prosecutions are, therefore, not available.
I respectfully submit that any apprehensions in the Court arising from a denial of the petition
— "breach of an international obligation, rupture of states relations, forfeiture of confidence,
national embarrassment, and a plethora of other equally undesirable consequences" — are
more illusory than real. Our country is not denying the extradition of a person who must be
extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United
States taking issue over what, to it, would be a minor concession, perhaps a slight delay,
accorded in the name of human rights. On the other hand, the issue is fundamental in the
Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights
expressly guaranteed by the Philippine Constitution.
Until proved to be a valid subject for extradition, a person is presumed innocent or not
covered by the sanctions of either criminal law or international treaty. At any stage where a
still prospective extraditee only seeks to know so that he can prepare and prove that he
should not be extradited, there should be no conflict over the extension to him of
constitutional protections guaranteed to aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty.
Article 7 enumerates the required documents and establishes the procedures under which
the documents shall be submitted and admitted as evidence. There is no specific provision
on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of
Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty
over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the
contracting states of the right to know. Silence is interpreted as the exclusion of the right to a
preliminary examination or preliminary investigation provided by the laws of either one of the
two states.
The right to be informed of charges which may lead to court proceedings and result in a
deprivation of liberty is ordinarily routine. It is readily available to one against whom the
state's coercive power has already been focused. I fail to see how silence can be interpreted
as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an
internal matter. And when a law or treaty is silent, it means a right or privilege may be
granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even less convincing.
The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the
United States Government requested the Philippine Government to prevent unauthorized
disclosure of certain information. On the other hand, petitioner declares that the United
States has already secured orders from concerned District Courts authorizing the disclosure
of the same grand jury information to the Philippine Government and its law enforcement
personnel.
Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they
are going to be introduced as evidence in adversely proceedings before a trial court? The
only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any
crime will be determined in an American court. It is there where prosecution strategies will be
essential. If the Contracting States believed in a total non-divulging of information prior to
court hearings, they would have so provided in the extradition treaty. A positive provision
making certain rights unavailable cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical constitutional
provisions on due process and basic rights should sustain such a myopic view in a situation
where the grant of a right would not result in any serious setbacks to criminal law
enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the person
indicated has been established. Considering the penchant of Asians to adopt American
names when in America, the issue of whether or not the prospective extraditee truly is the
person charged in the United States becomes a valid question. It is not only identity of the
person which is involved. The crimes must also be unmistakably identified and their essential
elements clearly stated.
There are other preliminary matters in which respondent is interested. I see nothing in our
laws or in the Treaty which prohibits the prospective extraditee from knowing until after the
start of trial whether or not the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941);
and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation
is to secure an innocent person against hasty, faulty and, therefore, oppressive proceedings;
to protect him from an open and extensively publicized accusation of crimes; to spare him
the trouble, expense, and anxiety of a public trial; and also to protect the state from useless
and expensive trails. Even if the purpose is only to determine whether or not the respondent
is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness
and freedom accorded to those charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner views the request to
be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for
extradition must be viewed objectively and impartially without any predisposition to granting it
and, therefore, hastening the extradition process.
In the first place, any assistance which the evaluating official may get from the participation
of respondent may well point out deficiencies and insufficiencies in the extradition
documents. It would incur greater delays if these are discovered only during court trial. On
the other hand, if, from respondent's participation, the evaluating official discovers a case of
mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming,
there would be no delays during trial. An unnecessary trial with all its complications would be
avoided.
The right to be informed is related to the constitutional right to a speedy trial. The
constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial
and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does
not mean the deliberate exclusion of the defendant or respondent from the proceedings. As
this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial,
means one free from vexatious, capricious and oppressive delays, its salutary objective
being to assure that an innocent person may be free from the anxiety and expense of a court
litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined
within the shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely for respondent.
They also serve the interests of the State. 1âwphi1.nêt
If the case at bar was strictly a criminal case which involves alone the right of an accused to
due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice
Jose A.R. Melo, without taking half a pause. But the case at bar does not involve the guilt or
innocence of an accused but the interpretation of an extradition treaty where at stake is our
government's international obligation to surrender to a foreign state a citizen of its own so he
can be tried for an alleged offense committed within that jurisdiction. The issues are of first
impression and the majority opinion dangerously takes us to unknown shoals in
constitutional and international laws, hence this dissenting opinion.
A brief review of the history of extradition law will illumine our labor. Possibly the most
authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of
extradition into four (4) periods: "(1) ancient times to seventeenth century — a period
revealing almost exclusive concern for political and religious offenders; (2) the eighteenth
century and half of the nineteenth century — a period of treaty-making chiefly concerned with
military offenders characterizing the condition of Europe during that period; (3) from 1833 to
1948 — a period of collective concern in suppressing common criminality; and (4) post-1948
developments which ushered in a greater concern for protecting the human rights of persons
and revealed an awareness of the need to have international due process of law regulate
international relations."2
It is also rewarding to have a good grip on the changing slopes in the landscape of
extradition during these different periods. Extradition was first practiced by the Egyptians,
Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was
unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The
classical commentators on international law thus focused their early views on the nature of
the duty to surrender an extraditee — whether the duty is legal or moral in character. Grotius
and de Vattel led the school of thought that international law imposed a legal duty called
civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school
of thought that the so-called duty was but an "imperfect obligation which could become
enforceable only by a contract or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under international law
there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus,
the US Supreme Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the
nations of the earth have imposed upon themselves the obligation of delivering up these
fugitives from justice to the states where their crimes were committed, for trial and
punishment. This has been done generally by treaties . . . Prior to these treaties, and apart
from them there was no well-defined obligation on one country to deliver up such fugitives to
another; and though such delivery was often made it was upon the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of international
law. The 20th century saw the dramatic rise and fall of different types and hues of
authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler, the militarism of
Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to
the elevation of the rights of the individual against the state. Indeed, some species of human
rights have already been accorded universal recognition.7 Today, the drive to internationalize
rights of women and children is also on high gear.8 The higher rating given to human rights in
the hierarchy of values necessarily led to the re-examination of rightful place of the individual
in international law. Given the harshest eye is the moss-covered doctrine that international
law deals only with States and that individuals are not its subject. For its undesirable corrally
is the sub-doctrine that an individual's right in international law is a near cipher. Translated in
extradition law, the view that once commanded a consensus is that since a fugitive is a mere
object and not a subject of international law, he is bereft of rights. An extraditee, so it was
held, is a mere "object transported from one state to the other as an exercise of the
sovereign will of the two states involved."9 The re-examination consigned this pernicious
doctrine to the museum of ideas.10 The new thinkers of international law then gave a
significant shape to the role and rights of the individual in state-concluded treaties and other
international agreements. So it was declared by then US Ambassador Philip C. Jessup in
audible italics: "A very large part of international affairs and, thus, of the process of
international accommodation, concerns the relations between legal persons known as states.
This is necessarily so. But it is no longer novel for the particular interest of the human being
to break through the mass of interstate relationship."11 The clarion call to re-engineer a new
world order whose dominant interest would transcend the parochial confines of national
states was not unheeded. Among the world class scholars who joined the search for the
elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal
and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public
Order, they suggested that the object of the new world should be "to obtain in particular
situations and in the aggregate flow of situations the outcome of a higher degree of
conformity with the security goals of preservation, deterrence, restoration, rehabilitation and
reconstruction of all societies comprising the world community."12 Needless to stress, all these
prescient theses accelerated the move to recognize certain rights of the individual in
international law.
We have yet to see the final and irrevocable place of individual rights, especially the rights of
an extraditee, in the realm of international law. In careful language, Bassiouni observes that
today, "institutionalized conflicts between states are still rationalized in terms of sovereignty,
national interest, and national security, while human interests continue to have limited,
though growing impact on the decision-making processes which translate national values
and goals into specific national and international policy."13
I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the
case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter
of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive
and legislative departments of our government. Between these two departments, the
executive has a greater say in the making of a treaty. Under Section 21, Article VII of our
Constitution, the President has the sole power to negotiate treaties and international
agreements although to be effective, they must be concurred in by at least two thirds of all
the members of the Senate. Section 20 of the same Article empowers the President to
contract or guarantee foreign loans with the prior concurrence of the Monetary Board.
Section 16 of the same Article gives the President the power to appoint ambassadors, other
public ministers and consuls subject to confirmation by the Commission on Appointments. In
addition, the President has the power to deport undesirable aliens. The concentration of
these powers in the person of the President is not without a compelling consideration. The
conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best available information and
can decide with decisiveness. Beyond debate, the President is the single most powerful
official in our land for Section 1 of Article VII provides that "the executive power shall be
vested in the President of the Philippines," whereas Section 1 of Article VI states that "the
legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives . . . except to the extent reserved to the people by
the provision on initiative and referendum," while Section 1 of Article VIII provides that
"judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law." Thus, we can see that executive power is vested in the President alone
whereas legislative and judicial powers are shared and scattered. It is also the President who
possesses the most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In
fine, the presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state relations, forfeiture
of confidence, national embarrassment and a plethora of other problems with equally
undesirable consequences.
These are some of the dominant policy considerations in international law that the Court
must balance against the claim of the private respondent that he has a right to be given the
extradition documents against him and to comment thereon even while they are still at the
evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The
delicate questions of what constitutional rights and to what degree they can be claimed by an
extraditee do not admit of easy answers and have resulted in discrete approaches the world
over.15 On one end of the pole is the more liberal European approach. The European Court of
Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant
provisions of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences
adversely affecting the enjoyment of a convention right, it may, assuming that the
consequences are not too remote, attract the obligations of a Contracting State under the
relevant convention guarantee."16 At the other end of the pole is the more cautious approach
of the various Courts of Appeal in the United States. These courts have been more
conservative in light of the principle of separation of powers and their faith in the presumptive
validity of executive decisions. By and large, they adhere to the rule of non-inquiry under
which the extraditing court refuses to examine the requesting country's criminal justice
system or consider allegations that the extraditee will be mistreated or denied a fair trial in
that country.17
The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the
RP-US Extradition Treaty and our Constitution where we have to choose one over the other.
Rather, it calls for a harmonization between said treaty and our Constitution. To achieve this
desirable objective, the Court should consider whether the constitutional rights invoked by
the private respondent have truly been violated and even assuming so, whether he will be
denied fundamental fairness. It is only when their violation will destroy the respondent's right
to fundamental fairness that his constitutional claims should be given primacy.
Given this balancing approach, it is my humble submission that considering all the facts and
facets of the case, the private respondent has not proved entitlement to the right he is
claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069
do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an
approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean
an implied denial of a right. Also, constitutional litigations do not always involve a clear cut
choice between right and wrong. Sometimes, they involve a difficult choice between right
against right. In these situations, there is need to balance the contending rights and primacy
is given to the right that will serve the interest of the nation at that particular time. In such
instances, the less compelling right is subjected to soft restraint but without smothering its
essence. Proceeding from this premise of relativism of rights, I venture the view that even
assuming arguendo respondent's weak claim, still, the degree of denial of private
respondent's rights to due process and to information is too slight to warrant the interposition
of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis.
It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding
where there is an accused who claim the entire array of rights guaranteed by the Bill of
Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt
or innocence of the extraditee will not be passed upon by our executive officials nor by the
extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or
innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition
proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of
evidence are different in an extradition proceeding. Admission of evidence is less stringent,
again because the guilt of the extraditee is not under litigation.19 It is not only the quality but
even the quantum of evidence in extradition proceeding is different. In a criminal case, an
accused can only be convicted by proof beyond reasonable doubt.20 In an extradition
proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima
facie case."21 If more need be said, the nature of an extradition decision is different from a
judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an
individual extraditable but the ultimate decision to extradite the individual lies in the hands of
the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that
"extradition shall not be granted if the executive authority of the Requested State determined
that the request was politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation." In the United States, the Secretary of State
exercises this ultimate power and is conceded considerable discretion. He balances the
equities of the case and the demands of the nation's foreign relations.23 In sum, he is not
straitjacketed by strict legal considerations like an ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the guilt or
innocence of the extraditee, the limited nature of the extradition proceeding, the availability of
adequate remedies in favor of the extraditee, and the traditional leeway given to the
Executive in the conduct of foreign affairs have compelled courts to put a high threshold
before considering claims of individuals that enforcement of an extradition treaty will violate
their constitutional rights. Exemplifying such approach is the Supreme Court of Canada
which has adopted a highly deferential standard that emphasizes international comity and
the executive's experience in international matters.24 It continues to deny Canada's charter
protection to extraditees unless the violation can be considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much significance the
threat to liberty of the private respondent to prop us its thesis that his constitutional rights to
due process and access to information must immediately be vindicated. Allegedly,
respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be
immediately furnished copies of documents accompanying the request for his extradition.
Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on
the ground show that the United States authorities have not manifested any desire to request
for his arrest. On the contrary, they filed the extradition request through the regular channel
and, even with the pendency of the case at bar, they have not moved for respondent's arrest
on the ground of probable delay in the proceedings. To be sure, the issue of whether
respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9
of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general
principle is enunciated that a request for provisional arrest must be made pending receipt of
the request for extradition. By filing the request for extradition, the US authorities have
implicitly decided not to move for respondent's provisional arrest. But more important, a
request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He
will be given due process before he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
f) a statement that a request for extradition for the person sought will
follow.
Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state
may, pursuant to the relevant treaty or convention and while the same
remains in force, request for the provisional arrest of the accused, pending
receipt of the request for extradition made in accordance with Section 4 of
this Decree.
(b) A request for provisional arrest shall be sent to the Director of the
National Bureau of Investigation, Manila, either through the diplomatic
channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any official acting
on his behalf shall upon receipt of the request immediately secure a warrant
for the provisional arrest of the accused from the presiding judge of the Court
of First Instance of the province or city having jurisdiction of the place, who
shall issue the warrant for the provisional arrest of the accused. The Director
of the National Bureau of Investigation through the Secretary of Foreign
Affairs shall inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of
Foreign Affairs has not received the request for extradition and the
documents mentioned in Section 4 of this Decree, the accused shall be
released from custody.
The due process protection of the private-respondent against arbitrary arrest is written in
cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that
a request for provisional arrest does not mean it will be granted ipso facto. The request must
comply with certain requirements. It must be based on an "urgent" factor. This is subject to
verification and evaluation by our executive authorities. The request can be denied if not
based on a real exigency of if the supporting documents are insufficient. The protection of
the respondent against arbitrary provisional arrest does not stop on the administrative level.
For even if the Director of the National Bureau of Investigation agrees with the request for
the provisional arrest of the respondent, still he has to apply for a judicial warrant from the
"presiding judge of the Court of First Instance (now RTC) of the province of city having
jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest
of the respondent. The judge has comply with Section 2, Article III of the Constitution which
provides that "no . . . warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the . . . persons
or things to be seized." The message that leaps to the eye is that compliance with this
requirements precludes any arbitrary arrest.
(2) The order and notice as well as a copy of the warrant of arrest, if issued,
shall be promptly served each upon the accused and the attorney having
charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense
available to him. Such an opportunity does not deny him fairness which is the essence of
due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law
dimension. This goes against the familiar learning that in balancing the clashing interests
involved in extradition treaty, national interest is more equal than the others. While lately,
humanitarian considerations are being factored in the equation, still the concept of extradition
as a national act is the guiding idea. Requesting and granting extradition remains a power
and prerogative of the national government of a State. The process still involves relations
between international personalities.25 Needless to state, a more deferential treatment should
be given to national interest than to individual interest. Our national interest in extraditing
persons who have committed crimes in a foreign country are succinctly expressed in the
whereas clauses of P.D. No. 1069, viz:
WHEREAS, the suppression of crime is the concern not only of the state
where it is committed but also of any other state to which the criminal may
have escaped, because it saps the foundation of social life and is an outrage
upon humanity at large, and it is in the interest of civilized communities that
crimes should not go unpunished. . . . .
The increasing incidence of international and transnational crimes, the development of new
technologies of death, and the speed and scale of improvement of communication are
factors which have virtually annihilated time and distance. They make more compelling the
vindication of national interest to insure that the punishment of criminals should not be
frustrated by the frontiers of territorial sovereignty. This overriding national interest must be
upheld as against respondent's weak constitutional claims which in no way amount to denial
of fundamental fairness.
At bottom, this case involves the respect that courts should accord to the Executive that
concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as
1800, the legendary John Marshall, then a congressman, has opined that the power to
extradite pursuant to a treaty rests in the executive branch as part of its power to conduct
foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken
cases. They defer to the judgment of the Executive on the necessities of our foreign affairs
and on its view of the requirements of international comity. The deferential attitude is dictated
by the robust reality that of the three great branches of our government, it is the Executive
that is most qualified to guide the ship of the state on the known and unknown continents of
foreign relations. It is also compelled by considerations of the principle of separation of
powers for the Constitution has clearly allocated the power to conduct our foreign affairs to
the Executive. I respectfully submit that the majority decision has weakened the Executive by
allowing nothing less than an unconstitutional headbutt on the power of the Executive to
conduct our foreign affairs. The majority should be cautions in involving this Court in the
conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that
the nation should speak with one voice. We should not overlook the reality that courts by
their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty,
some of which are hidden in shadows and silhouettes.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the
due process rights of notice and hearing during the preliminary or evaluation stage of the
extradition proceeding against him.
Two Staged in Extradition
There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation
stage, whereby the executive authority of the requested state ascertains whether the
extradition request is supported by the documents and information required under the
Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is
heard before a court of justice, which determines whether the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims that he has a right
to be notified and to be heard at this early stage. However, even the ponencia admits that
neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly
requires the Philippine government, upon receipt of the request for extradition, to give copies
thereof and its supporting documents to the prospective extraditee, much less to give him an
opportunity to be heard prior to the filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the grant by
the executive authority of notice and hearing to the prospective extraditee at this initial stage.
It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a
hearing to consider the evidence submitted in support of the extradition request. In contrast,
in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney
copies of the request and its accompanying documents, pursuant to statutory provisions.1 In
the Philippines, there is no similar statutory provision.
The evaluation stage simply involves the ascertainment by the foreign affairs secretary of
whether the extradition request is accompanied by the documents stated in paragraphs 2
and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive;
the facts of the offense and the procedural history of the case; provisions of the law
describing the essential elements of the offense charged and the punishment therefor; its
prescriptive period; such evidence as would provide probable cause for the arrest and the
committal for trial of the fugitive; and copies of the warrant or order of arrest and charging
document. The foreign affairs secretary also sees to it that these accompanying documents
have been certified by the principal diplomatic or consular officer of the Philippines in the
United States, and that they are in English language or have English translations. Pursuant
to Article 3 of the Treaty, he also determines whether the request is politically motivated, and
whether the offense charged is a military offense not punishable under non-military penal
legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the justice secretary, who shall immediately designate and authorize an attorney in
his office to take charge of the case. The lawyer designated shall then file a written petition
with the proper regional trial court, with a prayer that the court take the extradition request
under consideration.3
According to private Respondent Jimenez, his right to due process during the preliminary
stage emanates from our Constitution, particularly Section 1, Article III thereof, which
provides:
No person shall be deprived of life, liberty or property without due process of
law.
He claims that this right arises immediately, because of the possibility that he may be
provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:
Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a
provisional arrest pending the submission of the extradition request and (2) his temporary
arrest during the pendency of the extradition petition in court.4 The second instance is not in
issue here, because no petition has yet been filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all
times, and in enforcement does not depend solely on the discretion of the requested state.
From the wordings of the provision itself, there are at least three requisites: (1) there must be
an urgency, and (2) there is a corresponding request (3) which must be made prior to the
presentation of the request for extradition.
In the instant case, there appears to be no urgency characterizing the nature of the
extradition of private respondent. Petitioner does not claim any such urgency. There is no
request from the United States for the provisional arrest of Mark Jimenez either. And the
secretary of justice states during the Oral Argument that he had no intention of applying for
the provisional arrest of private respondent.5 Finally, the formal request for extradition has
already been made; therefore, provisional arrest is not likely, as it should really come before
the extradition request.6
Under the outlined facts of this case, there is no open door for the application of Article 9,
contrary to the apprehension of private respondent. In other words, there is no actual danger
that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat
that his rights would be trampled upon, pending the filing in court of the petition for his
extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs
(or justice) secretary to notify and hear him during the preliminary stage, which basically
involves only the exercise of the ministerial power of checking the sufficiency of the
documents attached to the extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is merely
preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power
and the duty of the court, not the executive authority, to determine whether there is sufficient
evidence to establish probable cause that the extraditee committed the crimes charged.8 The
sufficiency of the evidence of criminality is to be determined based on the laws of the
requested state.9 Private Respondent Jimenez will, therefore, definitely have his full
opportunity before the court, in case an extradition petition will indeed be filed, to be heard
on all issues including the sufficiency of the documents supporting the extradition request.10
Private respondent insists that the United States may still request his provisional arrest at
any time. That is purely speculative. It is elementary that this Court does not declare
judgments or grant reliefs based on speculations, surmises or conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time despite the
assurance of the justice secretary that no such measure will be undertaken, our local laws
and rules of procedure respecting the issuance of a warrant of arrest will govern, there being
no specific provision under the Extradition Treaty by which such warrant should issue.
Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws
to any person whose arrest is being sought. 1âwphi1.nêt
The right of one state to demand from another the return of an alleged fugitive from justice
and the correlative duty to surrender the fugitive to the demanding country exist only when
created by a treaty between the two countries. International law does not require the
voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation
requiring it.11 When such a treaty does exist, as between the Philippines and the United
States, it must be presumed that the contracting states perform their obligations under it with
uberrimae fidei, treaty obligations being essentially characterized internationally by comity
and mutual respect.
One final point. Private respondent also claims that from the time the secretary of foreign
affairs gave due course to the request for his extradition, incalculable prejudice has been
brought upon him. And because of the moral injury caused, he should be given the
opportunity at the earliest possible time to stop his extradition. I believe that any moral injury
suffered by private respondent had not been caused by the mere processing of the
extradition request. And it will not cease merely by granting him the opportunity to be heard
by the executive authority. The concrete charges that he has allegedly committed certain
offenses already exist. These charges have been filed in the United States and are part of
public and official records there. Assuming the existence of moral injury, the only means by
which he can restore his good reputation is to prove before the proper judicial authorities in
the US that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the request for his
extradition are insufficient.
Conclusion
In the context of the factual milieu of private respondent, there is really no threat of any
deprivation of his liberty at the present stage of the extradition process. Hence, the
constitutional right to due process — particularly the right to be heard — finds no application.
To grant private respondent's request for copies of the extradition documents and for an
opportunity to comment thereon will constitute "over-due process" and unnecessarily delay
the proceedings.
1
Sec. 7. The right of the people to information of public concern shall be
recognized. Access to official records, and to documents, and papers a
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
2
Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs.
Belmonte, Jr., 170 SCRA 256.
3
Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of
Appeals, 193 SCRA 597.
4
Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The
Lawyers Review, Vol. IX, 30 April 1995, p. 1.
5
Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.
1
Annex "L," petition.
2
Petition, p. 4.
3
Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69
SCRA 334 (1976).
4
Stanley v. Illinois, 1405 U.S. 645, 647.
1
Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630
(1990).
2
International Extradition, United States Law and Practice, 2nd ed., p. 7
(1987).
3
The Practice of Extradition from Antiquity to Modern France and the United
States: A Brief History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).
4
They were supported by scholars like Heineccuis, Burlamaqui, Rutherford,
Schmelzing and Kent. See Sheareer, Extradition in Internal Law, p. 24
(1971).
5
They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint,
Seafied, Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24.
6
119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).
7
See Universal Declaration of Human Rights (1948), The International
Covenant on Economic, Social and Cultural Rights (1966) and The
International Covenant on Civil and Political Rights (1966).
8
The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) otherwise known as "Bill of Rights for Women" was
adopted by the UN General Assembly in December 1979. As of November
1999, one hundred sixty seven (167) states including the Philippines have
ratified or acceded to it. See Statement of Angela King, Special Adviser to
the Secretary General of the UN on Gender Issues and Advancement of
Women, Judicial Colloquium on the Application of International Human
Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999.
9
Blakesley and Lagodny, Finding armony Amidst Disagreement Over
Extradition, Jurisdiction, The Role of Human Rights and Issues of
Extraterritoriality Under International Criminal Law, Vanderbilt Journal of
Transnational Law, Vol. 24, No. 1, pp. 44 (1991).
The Conquering March of an Idea, Speech before the 72nd Annual Meeting
11
12
See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G.
Clark and L. Sohn, World Peace Through World Law (1966); Bassiouni,
International Extradition in American Practice and World Public Order, 36
Tenn. L. Rev. 1 (1968).
13
Bassiouni, supra, p. 625.
(1936).
16
Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).
17
Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry
in International Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p.
1198 (July 1991).
18
Sec. 9, P.D. No. 1069.
19
Ibid.
20
Sec. 2, Rule 133, Revised Rules of Court.
21
Sec. 10, P.D. No. 1069.
Referring to the Regional Trial Courts and the Court of Appeals whose
22
decisions are deemed final and executory. See Section 12, P.D. No. 1069.
23
Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.
24
Spencer, op cit., citing decided cases.
Weston, Falk and Amato, International Law and World Order, 2nd ed., p.
25
630 (1990).
26
Semmelman. op cit., p. 1206.
1
35 CJS § 14(1) Extradition 410. See also ponencia, p. 25.
2
See ponencia, pp. 11-12.
3
Ibid., Section 5, pars. (1) & (2), PD 1069.
4
Ponencia, p. 18.
5
TSN, p. 76.
6
See also TSN, p. 30.
7
§ 5 (2) & (3) in rel. to § 10, PD 1069. See also last par., p. 13 of ponencia.
8
18 USCS § 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d § 109
Extradition 828.
9
18 USCS § 3184, n 64 Criminal Procedure 458.
10
See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.
11
31A Am Jur 2d Extradition § 14.
Heirs of Santiago Pastoral v SPW and Communications
THIRD DIVISION
This case was certified to us by the Court of Appeals pursuant to Sections 17 and 21 of the Judiciary Act, as amended in relation
to Section 3, Rule 50 of the Rules of Court on the ground that the issues raised are pure questions of law. The main issue centers
on the authority of the Secretary of Public Works and Communications under Republic Act 2056 to declare the construction of
dikes encroaching into public navigable waters as a public nuisance and to order their removal.
Sometime in October 1958, residents of Bacayao Norte, Caranglaan, and Mayombo Districts
of Dagupan City led by Leonardo Espanol filed complaints with the Secretary of Public
Works and Communications (hereinafter referred to as Secretary) denouncing the heirs of
Santiago Pastoral and Agustin Bato for "alleged encroachments into the Tulao River ... to the
prejudice of public interest." The complaints were docketed as Cases Nos. RA-2056-26 and
RA-2056-37 respectively.
The Secretary designated the City Engineer of Dagupan City to conduct hearings in the two
cases. All the parties were notified of the hearings set for both cases.
Based on the evidence submitted by the parties, the Secretary rendered two separate
decisions ordering the removal of the encroachments complained of within thirty (30) days
from receipt of notice. Thus, in Case No. RA-2056-26, the heirs of Santiago Pastoral were
ordered to remove the fishpond dikes indicated as Encroachments Nos. 1, 2, 3 and 4 in
Exhibit "A" while in Case No. RA-2056-37, Agustin Bato was ordered to remove the fishpond
dikes indicated as Encroachment No. 5 in Exhibit "A." The Secretary ruled that
encroachments Nos. 1, 2, 3, 4 and 5 in Exhibit "A" had been illegally constructed within the
channel of Tulao River. The Secretary declared the encouragement croachments as public
nuisances under Republic Act 2056.
Their motion for reconsideration having been denied by the Secretary, the respondents filed
in the Court of First Instance of Pangasinan a petition for certiorari and prohibition with a
prayer for a writ of preliminary injunction against the Secretary, the City Engineer of Dagupan
City and Leonardo Espanol. The case was docketed as Civil Case No. D-833.
The petitioners (respondents in the administrative cases) alleged "... that respondent City
Engineer informed petitioners that the 30-day period given them to remove the fishpond
dikes has expired and that his office will proceed to demolish the dikes on orders from the
Secretary of Public Works and Communications; that they have title over the alleged
encroachments and a fishpond permit issued by the Department of Agriculture and Natural
Resources, through the Bureau of Fisheries, authorizing them to construct a fishpond on an
adjoining parcel of their property not covered by title." The petitioners sought the annulment
of the decision of the Secretary of Public Works and Communications on the ground of lack
of jurisdiction and the issuance of a writ of prohibition commanding the respondents to desist
absolutely and perpetually from further molesting in any manner the petitioners and
interfering with the exercise of their rights over the lands in question.
In his answer, the Secretary invoked his authority to remove the encroachments under
Republic Act No. 2056 and stated that he had acted lawfully and justly and within the sound
limits of his authority and jurisdiction thereunder.
The parties agreed to submit the case for judgment on the pleadings and were allowed by
the lower court to submit their respective memoranda.
The trial court then rendered a decision in favor of the petitioners-appellants prompting the
Secretary to interpose an appeal to the Court of Appeals.
In support of this lone assignment of error, the petitioner raised the following arguments:
1) The Secretary was duly vested with jurisdiction both over the
parties and subject matter of the controversy.
3) The Secretary did not, as concluded by the court a quo, rule on the
validity of appellees' titles over the lots in question.
As stated earlier, the main issue hinges on the authority of the Secretary of Public Works and
Communications under Republic Act 2056 to declare that the construction or building of
dams, dikes or any other works which encroach into any public navigable river, stream,
coastal waters and any other navigable public waters or waterways as well as the
construction or building of dams, dikes or any other works in areas declared as communal
fishing grounds is prohibited and to order their removal as "public nuisances or as prohibited
constructions."
The lower court concluded that the Secretary abused his authority under Republic Act No.
2056 on the following points: (1) The Secretary passed judgment on the validity of the titles
of the petitioners over Encroachments 3, 4 and 5 when he declared such titles as null and
void; and (2) the dikes denominated as Encroachments Nos. 1 and 2 were constructed by
virtue of a permit legally issued in favor of the late Santiago Pastoral by the Bureau of
Fisheries on July 19, 1948 because the area was deemed fit by said Office of fishpond
purposes, and the construction of such dikes would not impede the flow of the river. The
lower court opined that in constructing the dikes, the petitioners were only exercising a right
legally granted to them and that "they shall remain to enjoy the privilege until such time that
their permit shall have been cancelled."
The records belie the lower court's finding that the Secretary passed judgment on the titles of
the lots in question.
In connection with Encroachments Nos. 3 and 4, the Heirs of Santiago Pastoral presented a
certified true copy of Original Certificate of Title No. 9 issued by the Register of Deeds of
Dagupan City to show that the encroachments are within their titled lands. The Secretary,
however, stated in his decision:
As regards the last two encroachments, the evidence shows that the
southern boundary thereof is the original bank of the Tulao River. The
properties in question, titled as they are, are clearly within the bed of
the river. Even the testimony of Aniceto Luis, a representative of the
Bureau of Lands in the investigation, shows without doubt, that the
encroachments are within the river bed as may be gleaned from the
following:
A Yes, sir,
The propriety of the title over the last two encroachments is beyond
the jurisdiction of this Office to inquire into, much less question,
although it seems worth looking into by the proper authorities. Be that
as it may, the fact remains that the dikes and other works therein are
encroachments into the Tulao River and, as such, are public
nuisances within the contemplation of Republic Act No. 2056. (pp. 1-
2, Decision in RA-2056-26)
Petitioner Agustin Bato also submitted a verified copy of the Original Certificate of Title No. 2
to show that encroachment No. 5 was privately owned.
... It has been found, however, that the land in question, although
titled, is within the bed of the Tulao River. Even the representative of
the Bureau of Lands bolstered such finding as may be gleaned from
the following portion of his testimony:
A Yes sir.
In effect, the Secretary passed judgment only to the extent that, although the encroachments
were inside titled properties, they are within the bed of a river. With this factual finding, he
declared the encroachments, converted into fishponds within the Tulao River, as prohibited
and ordered their removal pursuant to his authority under Republic Act 2056. He never
declared that the titles of the petitioners over the lots in question were null and void.
The Secretary's authority to determine questions of fact such as the existence of a river even
inside titled properties was recognized in the cases of Lovina v. Moreno, (9 SCRA 557) and
Taleon vs. Secretary of Public Works and Communications (20 SCRA 69). We stated that
the fact-finding power of the Secretary of Public Works and Communications is merely
"incidental to his duty to clear all navigable streams of unauthorized constructions and,
hence its grant did not constitute an unlawful delegation of judicial power. ... that although
the titles were silent as to the existence of any stream inside the property, that did not confer
a right to the stream, it being of a public nature and not subject to private appropriation, even
by prescription." In the instant cases, the residents along the Tulao River complained about
obstructions on the river. From a width of 70 to 105 meters, the river had been reduced to a
width of only 10 to 15 meters. The river was navigable and even at low-tide was two to three
meters deep.
As regards the lower court's finding that the dikes designated as Encroachments Nos. 1 and
2 were constructed under the petitioners' Fishpond Permit issued by the Bureau of Fisheries
in 1948 and, therefore, must be respected, the Secretary counters that such issuance of
fishpond permit did not preclude him from conducting due investigation pursuant to his
authority under Republic Act 2056.
We agree.
Section 1 of Republic Act 2056 is explicit in that "Any provision or provisions of law to the
contrary notwithstanding, the construction or building of dams, dikes ... which encroaches
into any public navigable river, stream, coastal waters and any other navigable public waters
or waterways ... shall be ordered removed as public nuisance or as prohibited construction
as herein provided ... The record shows that the petitioners' fishpond permit was issued in
1948 while the Act took effect on June 3, 1958. Therefore, the Secretary's more specific
authority to remove dikes constructed in fishponds whenever they obstruct or impede the
free passage of any navigable river or stream or would cause inundation of agricultural areas
(Section 2, Republic Act 2056) takes precedence. Moreover, the power of the Secretary of
Public Works to investigate and clear public streams from unauthorized encroachments and
obstructions was granted as early as Act 3708 of the old Philippine Legislature and has been
upheld by this Court in the cases of Palanca v. Commonwealth (69 Phil. 449) and Meneses
v. Commonwealth (69 Phil. 647). The same rule was applied in Lovina v. Moreno, (supra)
Santos etc., et al. v. Secretary of Public Works and Communications (19 SCRA 637).
All in all, we find no grave abuse of discretion or an illegal exercise of authority on the part of
the Secretary of Public Works and Communications in ordering the removal of the
encroachments designated as Nos. 1, 2, 3, 4 and 5 of Exhibit "A".
The rules of due process were observed in the conduct of investigation in the two cases. The
parties concerned were all notified and hearings of the two cases were conducted by the
Secretary through the City Engineer of Dagupan City. All parties were given opportunity to
present evidence to prove their claims after which the Secretary rendered separate decisions
pursuant to Republic Act 2056.
The factual findings of the Secretary are substantiated by evidence in the administrative
records. In the absence of any illegality, error of law, fraud or imposition, none of which were
proved by the petitioners in the instant case, said findings should be respected. (Lovina v.
Moreno, supra; Santos, etc., et al. v. Secretary of Public Works and Communications, supra;
See also Borja v. Moreno, 11 SCRA 568; Taleon v. Secretary of Public Works and
Communications, 20 SCRA 69).
WHEREFORE, the instant appeal is GRANTED. The questioned decision of the Court of
First Instance of Pangasinan is REVERSED and SET ASIDE. The decisions of the then
Secretary of Public Works and Communications in Cases No. RA 2056-26 and No. RA-2056-
37 are REINSTATED.
SO ORDERED.
EN BANC
NARVASA, J.:
In May, 1981, the Government Service Insurance System (GSIS) dismissed six (6)
employees as being "notoriously undersirable," they having allegedly been found to be
connected with irregularities in the canvass of supplies and materials. The dismissal was
based on Article IX, Presidential Decree No. 807 (Civil Service Law) 1 in relation to LOI 14-A
and/or LOI No. 72. The employees' Motion for Reconsideration was subsequently denied.
Five of these six dismissed employees appealed to the Merit Systems Board. The Board
found the dismissals to be illegal because effected without formal charges having been filed
or an opportunity given to the employees to answer, and ordered the remand of the cases to
the GSIS for appropriate disciplinary proceedings.
The GSIS appealed tothe Civil Service Commission. By Resolution dated October 21, 1987,
the Commission ruled that the dismissal of all five was indeed illegal and disposed as
follows:
Still unconvinced, the GSIS appealed to the Supreme Court (G.R. Nos. 80321-22). Once
more, it was rebuffed. On July 4, 1988 this Court's Second Division promulgated a
Resolution which:
a) denied its petition for failing to show any grave abuse of discretion on the
part of the Civl Service Commission, the dismissals of the employees having
in truth been made without formal charge and hearin, and
On January 8, 1990, the aforesaid Resolution of July 4, 1988 having become final, the heirs of Namuco and Manuel filed a motion for
execution of the Civil Service Commission Resolution of October 21, 1987, supra. The GSIS opposed the motion. It argued that the CSC
Resolution of October 21, 1987 — directing reinstatement of the employees and payment to them of back salaries and benefits — had
been superseded by the Second Division's Resolution of July 4, 1988 — precisely eliminating the payment of back salaries.
The Civil Service Commission granted the motion for execution in an Order dated June 20, 1990. It accordingly directed the GSIS "to pay
the compulsory heirs of deceased Elizar Namuco and Eusebio Manuel for the period from the date of their illegal separation up to the date
of their demise." The GSIS filed a motion for reconsideration. It was denied by Order of the CSC dated November 22, 1990.
Once again the GSIS has come to this Court, this time praying that certiorari issue to nullify the Orders of June 20, 1990 and November 22,
1990. Here it contends that the Civil Service Commission has no pwer to execute its judgments and final orders or resolutions, and even
conceding the contrary, the writ of execution issued on June 20, 1990 is void because it varies this Court's Resolution of July 4, 1988.
The Civil Service Commission, like the Commission on Elections and the Commission on Audit, is a consitutional commission invested by the Constitution and relevant laws not only with authority to administer the civil
but also with quasi-judicial powers. 5 It has the authority to hear and decide
service, 4
10
that decision in "administrative disciplinary cases" shall be immediately executory unless a
motion for reconsideration is seasonably filed. If the decision of the Commission is brought to
the Supreme Court on certiorari, the same shall still be executory unless a restraining order
or preliminary injunction is issued by the High Court." 11 This is similar to a provision in the
former Civil Service Rules authorizing the Commissioner, "if public interest so warrants, ...
(to) order his decision executed pending appeal to the Civil Service Board of Appeals." 12 The
provisions are analogous and entirely consistent with the duty or responsibility reposed in the
Chairman by PD 807, subject to policies and resolutions adopted by the Commission, "to
enforce decision on administrative discipline involving officials of the Commission," 13 as well
as with Section 37 of the same decree declaring that an appeal to the Commission 14 "shall
not stop the decision from being executory, and in case the penalty is suspension or
removal, the respondent shall be considered as having been under preventive suspension
during the pendency of the appeal in the event he wins an appeal."
In light of all the foregoing consitutional and statutory provisions, it would appear absurd to
deny to the Civil Service Commission the power or authority or order execution of its
decisions, resolutions or orders which, it should be stressed, it has been exercising through
the years. It would seem quite obvious that the authority to decide cases is inutile unless
accompanied by the authority to see taht what has been decided is carried out. Hence, the
grant to a tribunal or agency of adjudicatory power, or the authority to hear and adjudge
cases, should normally and logically be deemed to include the grant of authority to enforce or
execute the judgments it thus renders, unless the law otherwise provides.
In any event, the Commission's exercise of that power of execution has been sanctioned by
this Court in several cases.
In Cucharo v. Subido, 15 for instance, this Court sustained the challenged directive of the Civil
Service Commissioner, that his decision "be executed immediately 'but not beyond ten days
from receipt thereof ...". The Court said:
Petitioner GSIS concedes that the heirs of Namuco and Manuel "are entitled tothe
retirement/death and other benefits due them as government employees" since, at the time
of their death, they "can be considered not to have been separated from the separated from
the service." 16
It contend, however, that since Namuco and Manuel had not been "completely exonerated of the administrative charge filed against them — as the filing of the proper disciplinary action was yet to have been taken had
death not claimed them" — no back salaries may be paid to them, although they "may charge the period of (their) suspension against (their) leave credits, if any, and may commute such leave credits to money
in line with these considerations, it argues, that the final and executory Resolution of this
Court's Second Division of July 4, 1988 should be construed; 19 and since the Commission's
Order of July 20, 1990 maikes a contrary disposition, the latter order obviously cannot prevail
and must be deemed void and ineffectual.
This Court's Resolution of July 4, 1988, as already stated, modified the Civil Service
Commission's Resolution of October 21, 1987 — inter alia granting back salaries tothe five
dismissed employees, including Namuco and Manuel — and pertinently reads as follows:
On the other hand, as also already stated, the Commission's Order of June 20, 1990
directed the GSIS "to pay the compulsory heirs of deceased Elizar Namuco and Eusebio
Manuel for the period from the date of their illegal separation up to the date of their demise."
The Commission asserted that in promulgating its disparate ruling, it was acting "in the
interest of justice and for other humanitarian reasons," since the question of whether or not
Namuco and Manuel should receive back salaries was "dependent on the result of the
disciplinary proceedings against their co-respondents in the administrative case before the
GSIS," and since at the tiem of their death, "no formal charge ... (had) as yet been made, nor
any finding of their personal culpability ... and ... they are no longer in a position to refute the
charge."
The Court agrees that the challenged orders of the Civil Service Commission should be
upheld, and not merely upon compassionate grounds, but simply because there is no fair
and feasible alternative in the circumstances. To be sure, if the deceased employees were
still alive, it would at least be arguable, positing the primacy of this Court's final dispositions,
that the issue of payment of their back salaries should properly await the outcome of the
disciplinary proceedings referred to in the Second Division's Resolution of July 4, 1988.
Death, however, has already sealed that outcome, foreclosing the initiation of disciplinary
administrative proceedings, or the continuation of any then pending, against the deceased
employees. Whatever may be said of the binding force of the Resolution of July 4, 1988 so
far as, to all intents and pursposes, it makes exoneration in the adminstrative proceedings a
condition precedent to payment of back salaries, it cannot exact an impossible performance
or decree a useless exercise. Even in the case of crimes, the death of the offender
exteinguishes criminal liability, not only as to the personal, but also as to the pecuniary,
penalties if it occurs before final judgment. 20 In this context, the subsequent disciplinary
proceedings, even if not assailable on grounds of due process, would be an inutile, empty
procedure in so far as the deceased employees are concerned; they could not possibly be
bound by any substatiation in said proceedings of the original charges: irrigularities in the
canvass of supplies and materials. The questioned order of the Civil Service Commission
merely recognized the impossibility of complying with the Resolution of July 4, 1988 and the
legal futility of attempting a post-mortem investigation of the character contemplated.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea,
Regalado and Davide, Jr., JJ., concur.
Melencio-Herrera, J., is on leave.
# Footnotes
2 Emphasis supplied.
3 Emphasis supplied.
6 SEC. 9(j), PD 807; SEE Sec. 16 (f), (g), (i) and (j); and SECS. 32 and 33 of
RA 2260.
9 "An Act Establishing a Code of Conduct and Ethical Standards for Public
Officials and Employees, ...," requiring inter alia that public officials and
employees shall simplify and systematize policy, rules and procedures and
avoid red tape to better serve the public.
18 128 SCRA 297, citing Octot v. Ibanez, et al., 111 SCRA 79 and San
Miguel Corporation v. Secretary of Labor, 64 SCRA 56.
SECOND DIVISION
DECISION
BRION, J.:
We resolve the present petition for review on certiorari1 assailing the October 30,
2009 decision2 and the October 1, 2010 resolution3 of the Court of Appeals (CA)
in CA-G.R.'SP No. 100616.
The CA affirmed the decision4 of the Office of the President setting aside the
resolution5 of the Department of Environment and Natural Resources (DENR)
Secretary. The DENR Secretary earlier affirmed the orders dated December 1,
20036 and July 26, 20047 of the DENR Regional Executive Director (RED),
Region IV-B-MIMAROPA.8
The Antecedents9
The dispute involved Lot Nos. 4512 and 4514 located at Barangay Port Barton,
San Vicente, Palawan, which are parts of a six-hectare timberland.
On February 11, 2003, Emelie L. Besaga (petitioner) applied for a Special Land
Use Permit (SLUP) for Lot Nos. 4512, 4513 and 4514 for a bathing
establishment. According to the petitioner, the lots are covered by Tax
Declaration No. 048 in the name of her father, the late Arturo Besaga, Sr. who
allegedly occupied the land during his lifetime.
The respondent spouses received the July 26, 2004 order on August 16, 2004.
They tiled on. August 25, 2004, through registered mail, an Appeal
Memorandum to the Office of the DENR Secretary, copy furnished the
petitioner's lawyer and the Office of the RED. The appeal fee was paid on
September 10, 2004. Respondent Digna Matalang Coching received the July 26,
2004 order on August 30, 2004 and filed her appeal (which adopted the appeal of
the respondent spouses) on September 16, 2004.
While the appeal was pending in the Office of the DENR Secretary, the RED
issued a Certificate of Finality11 declaring the December 1, 2003 and July 26,
2004 orders final and executory for failure of the respondents to file a Notice of
Appeal.
On August 6, 2006, the DENR Secretary rendered a decision (i) vacating the
December 1, 2003 and July 26, 2004 orders of the RED; (ii) amending the
coverage of the SLUP of the petitioner to cover Lot No. 4513 only; and (iii) giving
due course to the SLUP of the respondent spouses to cover Lot Nos. 4512 and
4514.
Acting on the motion for reconsideration13 filed by the petitioner, the DENR
Secretary reversed his August 6, 2006 decision on October 17, 2006 and held
that the December 1, 2003 and July 26, 2004 orders of the RED have attained
finality because: (i) the respondent spouses filed an Appeal Memorandum,
instead of a Notice of Appeal; (ii) the Appeal Memorandum was directly filed with
the DENR Secretary and not with the RED; and (iii) the respondent spouses
failed to pay the required appeal fees within the reglementary period.
The Office of the President reversed the October 17, 2006 resolution of the
DENR Secretary.
The CA, through the assailed decision and resolution, affirmed the decision of
the Office of the President.
The petitioner filed the present petition to contest the CA's ruling.
The report gave credence to Tax Declaration No. 048,15 which purportedly
showed that Lot Nos. 4512, 4513 and 4514 are parts of the six (6) hectare
timberland occupied by the petitioner's father during his lifetime. The RED also
gave weight to the statements of two former Barangay Captains of Port Barton
and the document signed by the alleged occupants of the said six (6) hectare
timberland supporting the petitioner's claim.
The DENR Secretary reversed the orders of the RED in his decision dated
August 6, 2006.16
He ruled that the petitioner cannot claim preferential right to apply for an SLUP
over Lot Nos. 4512 and 4514 in view of her sweeping allegation that the said lots
are part of the six (6) hectare timberland, which his father possessed in his
lifetime and whose possession she tacked. The DENR Secretary asked: if indeed
the petitioner tacked the possession of his father and she was the actual
occupant over Lot Nos. 4512 and 4514, why was she not made the survey
claimants of the said lots?
The DENR Secretary found that the respondent spouses have a preferential right
over Lot Nos. 4512 and 4514. Rogelio Maranon, the registered survey claimant
and occupant of Lot No. 4512, waived and transferred his right over the lot in
favor of the respondent spouses in a duly-notarized Affidavit of Waiver of Rights.
The respondent spouses derived their right over Lot No. 4514 from Arturo
Besaga, Jr. and Digna Matalang Coching, the registered survey claimants, who
executed a duly-notarized Joint-Affidavit of Waiver of Rights over the said lot.
The DENR Secretary held that these are the legal and vital documents
(disregarded by the chief of Forest Management Services) which support the
preferential rights of the respondent spouses over Lot Nos. 4512 and 4514.
The Office of the President reversed the October 17, 2006 resolution of the
DENR Secretary.
It held that the orders of the RED did not become final because there is no law,
rule or regulation prohibiting an appellant to file an appeal memorandum, instead
of a notice of appeal, to the office concerned. It further held that the appeal
memorandum itself serves as a sufficient notice of the party's intention to elevate
the case to a higher authority. The Office of the President observed that in a
plethora of cases, notices of appeal are filed directly with the DENR, rather than
with the RED, which practice has not since been prohibited nor made as a
ground for the outright dismissal of the appeal. Finally, it found that the
respondent spouses paid the appeal fees. All of these negate the finding that the
respondent spouses did not perfect their appeal to the DENR Secretary.
As to the merits of the case, the Office of the President found that Tax
Declaration No. 048 did not cover Lot Nos. 4512, 4513 and 4514 but Lot No.
4741, which is entirely different and distinct from the contested lots. It gave
credence to the Affidavit of Waiver of Rights executed by Rogelio Maranon and
the Joint Affidavit of Waiver of Rights jointly executed by Arturo Besaga, Jr. and
Digna Matalang Coching in favor of the respondent spouses. No countervailing
proof was presented by the petitioner to impugn these affidavits.
The CA sustained the Office of the President. Citing decisions of this Court, it
held that rules of procedure are construed liberally in proceedings before
administrative bodies. They are not to be applied in a very rigid and technical
manner, as they are used only to hold secure and not to override substantial
justice.
The CA ruled that the orders of the RED have not attained finality.
The Petition
The petitioner seeks reversal of the CA decision and resolution for being contrary
to law and jurisprudence. She submits that the respondent spouses failed to
perfect an appeal in the administrative proceedings. She argues that the
perfection of an appeal in the manner and within the period prescribed by law is
not only mandatory but also jurisdictional and that failure to conform to the rules
will render the judgment sought to be reviewed final and unappealable. She adds
that the liberal interpretation of the rules has no clear application in the present
case because the respondents failed to adequately explain their non-compliance
therewith.
As is proper under Rule 45 of the Rules of Court, the petitioner does not raise
any factual questions.
Respondent's Comment20
The respondent spouses ask for the petition's dismissal for lack of merit. They
submit that the CA acted in accordance with law and jurisprudence in upholding
the ruling of the Office of the President.
They argue that to dismiss the case on the mere ground of technicalities would
mean to dispense with the determination of the party having preferential right on
the disputed lots and could cause the perpetuation of a wrong. They maintain
that the cases cited by the petitioner, where procedural rules were strictly
enforced by this Court, involved violation of the rules either before the trial court,
the CA or before this Court, and not before an administrative agency like the
DENR. In sum, the respondent spouses contend that the orders of the RED have
not attained finality, thus, said orders are still subject to reversal, amendment or
modification on appeal.
Issues
The resolution of these issues hinges on whether the orders of the RED dated
December 1, 2003 and July 26, 2004 have attained finality because the
respondents filed a Memorandum of Appeal directly to the DENR Secretary
instead of a Notice of Appeal to the RED.
The crux of the dispute is Section 1(a) of DAO No. 87. It provides:
The petitioner cites jurisprudence to bolster her argument that the perfection of
an appeal in the manner and within the period prescribed by law is not oniy
mandatory but also jurisdictional.
In Asian Spirit Airlines v. Bautista,23 the CA dismissed the appeal because the
appellant failed to file his brief within the time provided by the Rules of Court. The
appellant not only neglected to file its brief within the stipulated time but also
failed to seek an extension of time based on a cogent ground before the
expiration of the time sought to be extended. In sustaining the CA, we held that
liberality in the application of rules of procedure may not be invoked if it will result
in the wanton disregard of the rules or cause needless delay in the administration
of justice.
In Land Bank of the Philippines v. Natividad,24 we affirmed the trial court when it
considered a motion for reconsideration pro forma for not containing a notice of
hearing. We held that a motion that does not contain the requisite notice of
hearing is nothing but a mere scrap of paper. The clerk of court does not even
have the duty to accept it, much less to bring it to the attention of the presiding
judge.
In Videogram Regulatory Board v. CA,25 the Regional Trial Court granted the
petitioner a non-extendible 15-day period to file a Petition for Review from the
decision of the Metropolitan Trial Court. The petitioner failed to file the petition
despite the extension. We held that the requirements for perfecting an appeal
within the reglementary period specified in the law must be strictly followed as
they are considered indispensable interdictions against needless delays and for
orderly discharge of judicial business.
In sum, all these cases strictly applied the rule that the right to appeal is a mere
statutory right and the party who avails of such right must comply with the law.
Otherwise, the right to appeal is lost.
To reiterate, these involved violations of the Rules of Court while the cases were
pending in the trial court, the CA or before this Court. They do not involved
violation of administrative rules of procedure. They are not strictly applicable
in the present case.
It is true that the right to appeal, being merely a statutory privilege, should be
exercised in the manner prescribed by law. This has been consistently held in
relation to non-observance by a party-litigant of the Rules of Court and failure to
offer a valid and acceptable excuse for non-compliance.
Yet, it is equally true that in proceedings before administrative bodies the general
rule has always been liberality.
It is well-settled that the rules of procedure are mere tools aimed at facilitating the
attainment of justice, rather than its frustration. A strict and rigid application of the
rules must always be eschewed when it would subvert the primary objective of
the rules, that is, to enhance fair trials and expedite justice. Technicalities
should never be used to defeat the substantive rights of the other party.
Every party-litigant must be afforded the amplest opportunity for the proper and
just determination of his cause, free from the constraints of technicalities, x x x
This is especially true with quasi-judicial and administrative bodies, such
as the IPO, which are not bound by technical rules of procedure. [Emphasis
supplied.]
The observance of fairness in the conduct of any investigation is at the very heart
of procedural due process. The essence of due process is to be heard, and, as
applied to administrative proceedings, this means a fair and reasonable
opportunity to explain one's side, or an opportunity to seek a
reconsideration of the action or ruling complained of. Administrative due
process cannot be fully equated with due process in its strict judicial sense, for in
the former a formal or trial-type hearing is not always necessary, and technical
rules of procedure are not strictly applied. [Emphasis supplied.]
Liberal Construction as
Applied in the Present Case
Do these errors breach due process so as to call for the strict application of
administrative rules of procedure? Is there basis for the liberal construction of the
rules?
We uphold liberality.
First, there is no violation of due process. In fact, to sustain the position of the
petitioner and strictly apply Section l(a) of DAO No. 87 may violate the
respondent spouses right to due process as this would result to a denial of their
right to appeal.
We hold that these procedural lapses were neither prejudicial nor unfair to the
petitioner. The petitioner's right to due process was not breached.
Notably, both the petitioner and the RED were furnished copies of the
Memorandum of Appeal, a fact that the petitioner did not deny.34
We agree with the observation of the Office of the President that the
Memorandum of Appeal essentially served the purpose of the Notice of Appeal.
The filing of the Memorandum of Appeal had the same practical effect had a
Notice of Appeal been filed: inform the RED that his order is sought to be
appealed to the DENR Secretary.
Significantly, the respondent spouses notified the petitioner of the filing of the
Memorandum of Appeal. The petitioner subsequently filed her opposition thereto.
When the DENR Secretary initially ruled in favor of the respondent spouses, the
petitioner tiled a motion for reconsideration of the said decision.
As to the late payment of the appeal fee, suffice it to say that this Court has
disregarded late payment of appeal fees at the administrative level in order to
render substantial justice.35
Second, the liberal construction of DAO No. 87 would serve its purpose, i.e.,
grant a party the right to appeal decisions of the Regional Offices to the DENR
Secretary in order for the latter to review the findings of the former. To disallow
appeal in this case would not only work injustice to the respondent spouses, it
would also diminish the DENR Secretary's power to review the decision of the
RED. It would deny the DENR Secretary the opportunity to correct, at the earliest
opportunity, "errors of judgment" of his subordinates. This is obviously not the
intent of DAO No. 87.
Finally, the petitioner failed to convince us why liberality should not be applied.
The petitioner does not claim that her right to due process was violated as a
result of the wrong mode of appeal. The petitioner merely asks this Court to
strictly construe DAO No. 87 and affirm the orders of the RED, which according
to her, have attained finality.
SO ORDERED.
Endnotes:
1 Rollo, pp. 3-27. The petition is hied under Mule 45 of the Rules of Court.
2Id. at 28-40. The assayed decision and resolution are penned by Associate
Justice Stephen C. Cruz, and concurred in by Associate Justice Jose C. Reyes,
Jr. and Associate Justice Estela M. Perlas-Bernabe (now a Member of this
Court).
3 Id. at 42-43.
4 Id. at 61-65. O.P. Case No. 06-K-398 dated August 13, 2007.
6 Id. at 104-106.
7 Id, at 107-108.
11Rollo, p. 114
12 Id. at 102.
13 Id. at 133-140.
14 Id. at 91-94.
15 Id. at 71.
16 Id. at 125-132.
17Supra note 5.
19Supra note 4.
20Rollo,
pp. 224-241. Comment is dated February 24, 2011.� Respondent Digna
Matalang Coching filed her Manifestation on April 7, 2011 adopting, in toto; the
respondent spouses' Comment.
21Supra note 1, at 17-18.
29 Id.
30 G.R. No. 194307, November 20, 2013, 710 SCRA 474, 482.
35See Adalim v. Taninas, et al., G.R. No., 198682, April 10, 2013, 695 SCRA
648.
Pison Arceo Agricultural and Development Corp v NLRC
THIRD DIVISION
PANGANIBAN, J.:
In the proceedings before the labor arbiter, only the unregistered trade
name of the employer-corporation and its administrator/manager were
impleaded and subsequently held liable for illegal dismissal, backwages
and separation pay. On appeal, however, the National Labor Relations
Commission motu proprio included the corporate name of the employee as
jointly and severally liable for the workers' claims. Because of such
inclusion, the corporation now raises of due process and jurisdiction
before this Court.
The Case
Assailed in this petition for certiorari under Rule 65 of the Rules of Court is
the Decision1 of Public Respondent National Labor Relations Commission2
in NLRC Case No. V-0334-923 promulgated on September 27, 1993 and its
Resolution4 promulgated on September 12, 1994 denying reconsideration.
Affirming the decision5 dated September 2, 1992 of Executive Labor Arbiter
Oscar S. Uy, the impugned NLRC Decision disposed thus:6
Pasco
The dispositive portion of the assailed Resolution, on the other hand, reads: 7
Arguing that the National Labor Relations Commission did not have jurisdiction
over it because it was not a party before the labor arbiter, petitioner elevated this
matter before this Court via a petition for certiorari under Rule 65.
Acting on petitioner's prayer 8, this Court (First Division) issued on January 18,
1995 a temporary restraining order enjoining the respondents from executing the
assailed Decision and Resolution.
The Facts
As gathered from the complaint9 and other submissions of the parties filed with
Executive Labor Arbiter Oscar S. Uy, the facts of the case are as follows:
BACKWAGES
SEPARATION PAY
TOTAL
In affirming the decision of the executive labor arbiter, public respondent ordered
"respondent-appellant, Jose Edmundo Pison and the respondent Pison-Arceo
Agricultural and Development Corporation to pay jointly and severally the claims
for backwages and separation pay" of private respondents. The motion for
reconsideration dated October 14, 1993 was apparently filed by Jose Edmundo
Pison for and on his own behalf only. However, Pison did not elevate his case
before this Court. The sole petitioner now before us is Pison-Arceo Agricultural
and Development Corporation, the owner of Hacienda Lanutan.
The Issue
Petitioner contends that it was never served any summons; hence, public
respondent did not acquire jurisdiction over it. It argues that "from the time the
complaint was filed before the Regional Arbitration Branch No. VI up to the time
the said case was appealed by Jose Edmundo Pison to the NLRC, Cebu,
petitioner Corporation was never impleaded as one of the parties . . . ." It was
only in the public respondent's assailed Decision of September 27, 1993 "that
petitioner Corporation was wrongly included as party respondent without its
knowledge." Copies of the assailed Decision and Resolution were not sent to
petitioner but only to Jose Edmundo Pison, on the theory that the two were one
and the same. Petitioner avers that Jose Edmundo Pison, "is only a minority
stockholder" of Hacienda Lanutan, which in turn is one of the of business of
petitioner. 11 Petitioner further argues that it did not "voluntarily appear before
said tribunal" and that it was not "given (any) opportunity to be heard", 12 thus,
the assailed Decision and Resolution in this case are void "for having been
issued without jurisdiction." 13
In its memorandum, petitioner adds that Eden vs. Ministry of Labor and
Employment, 14 cited by public respondent, does not apply to this case. In Eden,
"petitioners were duly served with notices of hearings, while in the instant case,
the petitioner was never summoned nor was served with notice of hearings as a
respondent in the case." 15
the specific power of the Commission to correct, amend, or waive any error,
defect or irregularity whether in the substance or in the form of the proceedings
before it 19 under Article 218 (c) as follows:
In this case, there are legal and factual reasons to hold petitioner jointly and
severally liable with Jose Edmundo Pison.
Jurisdiction Acquired
Over Petitioner
Consistent with the foregoing principles applicable to labor cases, we find that
jurisdiction was acquired over the petitioner. There is no dispute that Hacienda
Lanutan, which was owned SOLELY by petitioner, was impleaded and was
heard. If at all, the non-inclusion of the corporate name of petitioner in the case
before the executive labor arbiter was a mere procedural error which did not at all
affect the jurisdiction of the labor tribunals. 20 Petitioner was adequately
represented in the proceedings conducted at the regional arbitration branch by
no less than Hacienda Lanutan's administrator, Jose Edmundo Pison, who
verified and signed his/Hacienda Lanutan's position paper and other pleadings
submitted before the labor arbiter. It can thus be said that petitioner, acting
through its corporate officer Jose Edmundo Pison, traversed private respondents'
complaint and controverted their claims. Further rebutted by petitioner are the
following findings of public respondent: 21
Also, it is undisputed that summons and all notices of hearing were duly served
upon Jose Edmundo Pison. Since Pison is the administrator and representative
of petitioner in its property (Hacienda Lanutan) and recognized as such by the
workers therein, we deem the service of summons upon him as sufficient and
substantial compliance with the requirements for service of summons and other
notices in respect of petitioner corporation. Insofar as the complainants are
concerned, Jose Edmundo Pison was their employer and/or their employer's
representative. In view of the peculiar circumstances of this case, we rule that
Jose Pison's knowledge of the labor case and effort to resist can be deemed
knowledge and action of the corporation. Indeed, to apply the normal precepts on
corporate fiction and the technical rules on service of summons would be to
overturn the bias of the Constitution and the laws in favor of labor.
Hence, it is fair to state that petitioner, through its administrator and manager,
Jose Edmundo Pison, was duly notified of the labor case against it and was
actually afforded an opportunity to be heard. That it refused to take advantage of
such opportunity and opted to hide behind its corporate veil will not shield it from
the encompassing application of labor laws. As we held in Bautista vs. Secretary
of Labor and Employment: 22
Moreover, since the proceeding was not judicial but merely
administrative, the rigid requirements of procedural laws
were not strictly enforceable. It is settled that —
Jose Edmundo Pison did not appeal from the Decision of public respondent. It
thus follows that he is bound by the said judgment. A party who has not appealed
an adverse decision cannot obtain from the appellate court any affirmative relief
other than those granted, if there is any, in the decision of the lower court or
administrative body. 26
SO ORDERED.
7 Ibid., p. 78.
8 Ibid., p. 11.
11 Ibid., p. 8.
12 Ibid., p. 9.
13 Ibid., p. 11.
THIRD DIVISION
PUNO, J.:
Petitioner likewise pointed out that the charge against him was the subject of
similar cases filed before the Ombudsman.2 He attached to his counter-affidavit
the Consolidated Investigation Report3 of the Ombudsman dismissing similar
charges for insufficiency of evidence.
From May 29, 1996 until March 13, 1997, the PCAGC conducted its own
investigation of the complaint. While petitioner participated in the proceedings
and submitted various pleadings and documents through his counsel, private
respondent-complainant could not be located as his Philippine address could not
be ascertained. In the course of the investigation, the PCAGC repeatedly
required petitioner to submit his Statement of Assets, Liabilities and Net Worth
(SALN), Income Tax Returns (ITRs) and Personal Data Sheet. Petitioner ignored
these directives and submitted only his Service Record. He likewise adduced in
evidence the checks allegedly issued by his sister-in-law to pay for the house
and lot in Burbank, California. When the PCAGC requested the Deputy
Ombudsman for Luzon to furnish it with copies of petitioner’s SALN from 1992-
1994, it was informed that petitioner failed to file his SALN for those years.
After the investigation, the PCAGC, in its Report to the Office of the President,
made the following findings: Petitioner purchased a house and lot in Burbank,
California, for US$195,000.00 (or P3.9M at the exchange rate prevailing in 1993).
The sale was evidenced by a Grant Deed. The PCAGC concluded that the
petitioner could not have been able to afford to buy the property on his annual
income of P168,648.00 in 1993 as appearing on his Service Record. It likewise
found petitioner’s explanation as unusual, largely unsubstantiated, unbelievable
and self-serving. The PCAGC noted that instead of adducing evidence,
petitioner’s counsel exerted more effort in filing pleadings and motion to dismiss
on the ground of forum shopping. It also took against petitioner his refusal to
submit his SALN and ITR despite the undertaking made by his counsel which
raised the presumption that evidence willfully suppressed would be adverse if
produced. The PCAGC concluded that as petitioner’s acquisition of the subject
property was manifestly out of proportion to his salary, it has been unlawfully
acquired. Thus, it recommended petitioner’s dismissal from service pursuant to
Section 8 of R.A. No. 3019.
On August 24, 1998, the Office of the President, concurring with the findings and
adopting the recommendation of the PCAGC, issued Administrative Order No.
12,4 ordering petitioner’s dismissal from service with forfeiture of all government
benefits.
Petitioner’s Motion for Reconsideration was denied. His appeal to the Court of
Appeals was likewise dismissed.5
Hence, this petition for review where petitioner raises the following issues for
resolution: first, whether he was denied due process in the investigation before
the PCAGC; second, whether his guilt was proved by substantial evidence; and,
third, whether the earlier dismissal of similar cases before the Ombudsman
rendered the administrative case before the PCAGC moot and academic.
On the issue of due process, petitioner submits that the PCAGC committed
infractions of the cardinal rules of administrative due process when it relied on
Bundalian’s unverified letter-complaint. He gripes that his counter-affidavit should
have been given more weight as the unverified complaint constitutes hearsay
evidence. Moreover, petitioner insists that in ruling against him, the PCAGC
failed to respect his right to confront and cross-examine the complainant as the
latter never appeared in any of the hearings before the PCAGC nor did he send a
representative therein.
Neither can we sustain petitioner’s contention that the charge against him was
unsupported by substantial evidence as it was contained in an unverified
complaint. The lack of verification of the administrative complaint and the non-
appearance of the complainant at the investigation did not divest the PCAGC of
its authority to investigate the charge of unexplained wealth. Under Section 3 of
Executive Order No. 151 creating the PCAGC, complaints involving graft and
corruption may be filed before it in any form or manner against presidential
appointees in the executive department. Indeed, it is not totally uncommon that a
government agency is given a wide latitude in the scope and exercise of its
investigative powers. The Ombudsman, under the Constitution, is directed to act
on any complaint likewise filed in any form and manner concerning official acts or
omissions. The Court Administrator of this Court investigates and takes
cognizance of, not only unverified, but even anonymous complaints filed against
court employees or officials for violation of the Code of Ethical Conduct. This
policy has been adopted in line with the serious effort of the government to
minimize, if not eradicate, graft and corruption in the service.
On the second issue, there is a need to lay down the basic principles in
administrative investigations. First, the burden is on the complainant to prove by
substantial evidence the allegations in his complaint.10 Substantial evidence is
more than a mere scintilla of evidence. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if other
minds equally reasonable might conceivably opine otherwise. 11 Second, in
reviewing administrative decisions of the executive branch of the government,
the findings of facts made therein are to be respected so long as they are
supported by substantial evidence. Hence, it is not for the reviewing court to
weigh the conflicting evidence, determine the credibility of witnesses, or
otherwise substitute its judgment for that of the administrative agency with
respect to the sufficiency of evidence. Third, administrative decisions in matters
within the executive jurisdiction can only be set aside on proof of gross abuse of
discretion, fraud, or error of law. These principles negate the power of the
reviewing court to re-examine the sufficiency of the evidence in an administrative
case as if originally instituted therein, and do not authorize the court to receive
additional evidence that was not submitted to the administrative agency
concerned.12
In the case at bar, petitioner admitted that the subject property was in his name.
However, he insisted that it was his sister-in-law Estela Fajardo who paid for the
property in installments. He submitted as proof thereof the checks issued by
Fajardo as payment for the amortizations of the property. His evidence, however,
likewise fail to convince us. First, the record is bereft of evidence to prove the
alleged internal arrangement petitioner entered into with Fajardo. He did not
submit her affidavit to the investigating body nor did she testify before it regarding
her ownership of the Burbank property. Second, the checks allegedly issued by
Fajardo to pay for the monthly amortizations on the property have no evidentiary
weight as Fajardo’s mere issuance thereof cannot prove petitioner’s non-
ownership of the property. Fajardo would naturally issue the checks as she was
appointed by petitioner as attorney-in-fact and the latter would naturally course
through her the payments for the Burbank property. Third, petitioner’s own
evidence contradict his position. We cannot reconcile petitioner’s denial of
ownership of the property with the loan statement13 he adduced showing that he
obtained a loan from the World Savings and Loan Association for $195,000.00
on June 23, 1993 to finance the acquisition of the property. Then, three (3) years
later, on May 30, 1996, petitioner and his wife executed a Quitclaim Deed 14
donating the Burbank property to his sisters-in-law Estela and Rose Fajardo
allegedly to prove his non-ownership of the property. It is obvious that the
Quitclaim Deed is a mere afterthought, having been executed only after a
complaint for unexplained wealth was lodged against petitioner. Why the
Quitclaim Deed included Rose Fajardo when it was only Estela Fajardo who
allegedly owned the property was not explained on the record. Petitioner’s
evidence failed to clarify the issue as it produced, rather than settled, more
questions.
Petitioner admitted that the Grant Deed over the property was in his name. He
never denied the existence and due execution of the Grant Deed and the Special
Power of Attorney he conferred to Estela Fajardo with respect to the acquisition
of the Burbank property. With these admissions, the burden of proof was shifted
to petitioner to prove non-ownership of the property. He cannot now ask this
Court to remand the case to the PCAGC for reception of additional evidence as,
in the absence of any errors of law, it is not within the Court’s power to do so. He
had every opportunity to adduce his evidence before the PCAGC.
Lastly, we cannot sustain petitioner’s stance that the dismissal of similar charges
against him before the Ombudsman rendered the administrative case against
him before the PCAGC moot and academic. To be sure, the decision of the
Ombudsman does not operate as res judicata in the PCAGC case subject of this
review. The doctrine of res judicata applies only to judicial or quasi-judicial
proceedings, not to the exercise of administrative powers.15 Petitioner was
investigated by the Ombudsman for his possible criminal liability for the
acquisition of the Burbank property in violation of the Anti-Graft and Corrupt
Practices Act and the Revised Penal Code. For the same alleged misconduct,
petitioner, as a presidential appointee, was investigated by the PCAGC by virtue
of the administrative power and control of the President over him. As the
PCAGC’s investigation of petitioner was administrative in nature, the doctrine of
res judicata finds no application in the case at bar.
Thus, we find that the Court of Appeals correctly sustained petitioner’s dismissal
from service as the complaint and its supporting documents established that he
acquired a property whose value is disproportionate to his income in the
government service, unless he has other sources of income which he failed to
reveal. His liability was proved by substantial evidence.
SO ORDERED.
Footnotes
1Created under Executive Order No. 151, dated January 11, 1994,
by then President Fidel V. Ramos and was subsequently abolished
by his successor, former President Joseph Estrada through E.O.
253, dated July 18, 2000.
2 OMB-0-94-1172, OMB-0-94-1329 and OMB-0-94-1560.
3 Rollo at 162-173.
4 Id. at 54-60.
EN BANC
Office of the Solicitor General Antonio P. Barredo, Ist. Assistant Solicitor General
Esmeraldo Umali and Solicitor Bernardo P. Pardo for petitioners.
MARTIN, J.:
This is an original action for certiorari and prohibition with preliminary injunction,
under Rule 65 of the Rules of Court, seeking to annul and set aside the order of
respondent Judge, the Honorable Hilarion J. Jarencio, Presiding Judge of the
Court of First Instance of Manila, dated July 1, 1968, in Civil Case No. 73305,
entitled "Fernando Manalastas vs. Sec. Ramon D. Bagatsing, etc.", which reads
as follows:
As unfurled, the dominant issue in this case is whether the Agency, acting thru its
officials, enjoys the authority to issue subpoenas in its conduct of fact-finding
investigations.
It has been essayed that the life blood of the administrative process is the flow of
fact, the gathering, the organization and the analysis of evidence. 7 Investigations
are useful for all administrative functions, not only for rule making, adjudication,
and licensing, but also for prosecuting, for supervising and directing, for
determining general policy, for recommending, legislation, and for purposes no
more specific than illuminating obscure areas to find out what if anything should
be done.8 An administrative agency may be authorized to make investigations,
not only in proceedings of a legislative or judicial nature, but also in proceedings
whose sole purpose is to obtain information upon which future action of a
legislative or judicial nature may be taken 9 and may require the attendance of
witnesses in proceedings of a purely investigatory nature. It may conduct general
inquiries into evils calling for correction, and to report findings to appropriate
bodies and make recommendations for actions. 10
We recognize that in the case before Us, petitioner Agency draws its subpoena
power from Executive Order No. 4, para. 5 which, in an effectuating mood,
empowered it to "summon witness, administer oaths, and take testimony relevant
to the investigation" 11 with the authority "to require the production of documents
under a subpoena duces tecum or otherwise, subject in all respects to the same
restrictions and qualifications as apply in judicial proceedings of a similar
character." 12 Such subpoena power operates in extenso to all the functions of
the Agency as laid out in the aforequoted sub-paragraphs (b),(e), and (h). It is not
bordered by nor is it merely exercisable, as respondents would have it, in quasi-
judicial or adjudicatory function under sub-paragraph (b). The functions
enumerated in all these sub-paragraphs (b), (e), and (h) interlink or intertwine
with one another with the principal aim of meeting the very purpose of the
creation of the Agency, which is to forestall and erode nefarious activities and
anomalies in the civil service. To hold that the subpoena power of the Agency is
confined to mere quasi-judicial or adjudicatory functions would therefore imperil
or inactiviate the Agency in its investigatory functions under
sub-paragraphs (e) and (h). More than that, the enabling authority itself
(Executive Order No. 4, para. 5) fixes no distinction when and in what function
should the subpoena power be exercised. Similarly, We see no reason to depart
from the established rule that forbids differentiation when the law itself makes
none.
Nor could We impress upon this subpoena power the alleged strictures of a
subpoena issued under the Rules of Court 13 to abridge its application. The
seeming proviso in Section 580 of the Revised Administrative Code that the right
to summon witnesses and the authority to require the production of documents
under a subpoena duces tecum or otherwise shall be "subject in all respects to
the same restrictions and qualifications as apply in judicial proceedings of a
similar character" cannot be validly seized upon to require, in respondents'
formulation, that, as in a subpoena under the Rules, a specific case must be
pending before a court for hearing or trial and that the hearing or trial must be in
connection with the exercise of the court's judicial or adjudicatory functions 14
before a non-judicial subpoena can be issued by an administrative agency like
petitioner Agency. It must be emphasized, however, that an administrative
subpoena differs in essence from a judicial subpoena. Clearly, what the Rules
speaks of is a judicial subpoena, one procurable from and issuable by a
competent court, and not an administrative subpoena. To an extent, therefore,
the "restrictions and qualifications" referred to in Section 580 of the Revised
Administrative Code could mean the restraints against infringement of
constitutional rights or when the subpoena is unreasonable or oppressive and
when the relevancy of the books, documents or things does not appear. 15
Nothing then appears conclusive than that the disputed subpoena issued by
petitioner Quirico Evangelista to respondent Fernando Manalastas is well within
the legal competence of the Agency to issue.
WHEREFORE, the aforequoted order of respondent Judge, dated July 1, 1968,
is hereby set aside and declared of no force and effect.
SO ORDERED.
Separate Opinions
The opinion of the Court, ably penned by Justice Martin, is both learned and
comprehensive. It reflects the current state of doctrinal pronouncements in
American Administrative Law, which up to now possesses worth in this
jurisdiction. It is in accordance with the views expressed in two authoritative
American treatises that of
Davis1 and that of Jaffe.2 The compact but highly useful text of Parker yields the
same conclusion.3 A similar approach may be discerned in the casebooks of
Katz,4 and McFarland and Vanderbelt.5 A concurrence is thus called for. That for
me does not conclude matters though. The constitutional rights of a person who
may be involved in such administrative investigation, call for respect. A
recognition of the expanded reach of the administrative process in order to
assure that the objectives of a regulatory statute be attained cannot obscure the
protection that the Constitution affords a person who may find himself in the
position of a respondent. It is worthwhile to my mind that there be a reference,
even if far from detailed, to such an aspect. Hence this separate opinion.
1. The right to be protected against unreasonable search and seizure should not
fall by the wayside. 6 The broad sweep of the administrative power of
investigation cannot, consistently with the Constitution, go so far as to render it
meaningless. It is with such a reading in mind that I view the pronouncement in
United States v. Morton Salt
Co.,7 on which reliance is placed in the opinion of Justice Martin. The doctrine
formulated in such American case by Justice Jackson reads thus: "Of course a
governmental investigation into corporate matters may be of such a sweeping
nature and so unrelated to the matter properly under inquiry as to exceed the
investigatory power. Federal Trade Comm. v. American Tobacco Co., ... . But it is
sufficient if the inquiry is within the authority of the agency, the demand is not too
indefinite and the information sought is reasonably relevant. "The gist of the
protection is in the requirement, expressed in terms, that the disclosure sought
shall not be unreasonable.""8 It has been given approval in an impressive number
of subsequent adjudications. 9 It suffices, however, to call attention to the words
of Justice Jackson in the two paragraphs preceding the excerpts cited to remove
any doubt as to its lending itself to the construction that an inroad into the right of
search and seizure is now permissible: "The Commission's order is criticized
upon grounds that the order transgresses the Fourth Amendment's proscription
of unreasonable searches and seizures and the Fifth Amendment's due process
of law clause. It is unnecessary here to examine the question of whether a
corporation is entitled to the protection of the Fourth Amendment. ... Although the
"right to be let alone — the most comprehensive of rights and the right most
valued by civilized men," ... is not confined literally to searches and seizures as
such, but extends as well to the orderly taking under compulsion of process, ...
neither incorporated nor unincorporated associations can plead an unqualified
right to conduct their affairs in secret. ... While they may and should have
protection from unlawful demands made in the name of public investigation, ...
corporations can claim no equality with individuals in the enjoyment of a right to
privacy . ... They are endowed with public attributes. They have a collective
impact upon society, from which they derive the privilege of acting as artificial
entities. The Federal Government allows them the privilege of engaging in
interstate commerce. Favors from government often carry with them an
enhanced measure of regulation. ... Even if one were to regard the request for
information in this case as caused by nothing more than official curiosity,
nevertheless law-enforcing agencies have a legitimate right to satisfy themselves
that corporate behavior is consistent with the law and the public interest." 10 Thus
is rendered clear that the landmark Boyd decision which warned against the use
of the subpoena power to trench upon this guarantee still speaks authoritatively.
This Court has spoken to the same effect, Boyd having been cited in a number of
cases. 11 I would, therefore, read the opinion of my brethren as not departing
from but precisely adhering to its command. Whatever relaxation of its
compelling force may be allowable in case of corporations should not apply
where an individual is concerned. That should reassure respondent Manalastas
that if he could demonstrate a failure to abide by the constitutional mandate on
search and seizure, he is not without a remedy.
2. Nor can I fully reconcile myself to the implications lurking in this observation in
the opinion of the Court: "Since the only purpose of investigation is to discover
facts as a basis of future action, any unnecessary extension of the privilege
would thus be unwise." 12 The right not to incriminate oneself 13 is equally
deserving of the utmost deference and respect. What is more, the present
Constitution by the adoption of the Miranda doctrine has vitalized it even further.
14 There is, happily, the last sentence of such paragraph: "Anyway, by all means,
I am constrained to dissent from the main opinion of Mr. Justice Martin which
grants the petition and sets aside respondent court's order and writ of preliminary
injunction of July 1, 1968 and would therefore require respondent Fernando
Manalastas as assistant city public service officer of Manila (and all other city
officials similarly situated) to comply with the PARGO subpoena "to testify to
matters relevant to the investigation of anomalies and sworn statements involving
or implicating certain City officials or other public officers."1
All claims of PARGO to the contrary notwithstanding, the very petition and said
annexed sworn statements (which were not shown to respondent judge in spite
of his expressly asking for them during the course of the hearing 5) show that
respondent Manalastas (and others similarly situated) are indeed not merely
witnesses but in reality respondents (subject to administrative and criminal
charges.)
Respondent has therefore correctly invoked Cabal vs. Kapunan,6 wherein the
Court through then Chief Justice Roberto Concepcion held that therein petitioner
rightfully refused to take the witness stand as against the order of the
Presidential Committee investigating the complaint against him for alleged
unexplained wealth (since such proceedings were in substance and effect a
criminal one and his position was virtually that of an accused on trial and he
therefore had the right to remain silent and invoke the privilege against self-
incrimination in support of a blanket refusal to answer any and all questions) and
ordered the dismissal of the criminal contempt charge against him.
Pascual Jr. vs. Bd. of Examiners7 is equally in point, wherein the Court sustained
the lower court's writ of injunction against the respondent board's order
compelling therein petitioner to take the witness stand in a malpractice case
(wherein he was respondent) in view of the penal nature of the proceedings and
the right of the accused to refuse "not only to answer incriminatory questions, but
also to take the witness stand."8 The Court therein stressed that "the
constitutional guarantee, along with other rights granted an accused, stands for a
belief that while crime should not go unpunished and that the truth must be
revealed, such desirable objectives should not be accomplished according to
means or methods offensive to the high sense of respect accorded the human
personality. More and more in line with the democratic creed, the deference
accorded an individual even those suspected of the most heinous crimes is given
due weight. To quote from Chief Justice Warren, "the constitutional foundation
underlying the privilege is the respect a government ... must accord to the dignity
and integrity of its citizens."" and that "while earlier decisions stressed the
principle of humanity on which this right is predicated, precluding as it does all
resort to force or compulsion, whether physical or mental, current judicial opinion
places equal emphasis on its identification with the right to privacy. Thus
according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination
clause enables the citizen to create a zone of privacy which government may not
force to surrender to his detriment."
That petitioner's investigation and subpoena against respondent Manalastas
were in substance and effect criminal in nature against him as a respondent (and
not merely as witness) as indicated above, is borne out by the fact of record in
Sugay vs. Pamaran 9 (of which the Court can well take judicial notice) that on
July 22, 1971 respondent Manalastas as well as Carlos Montañez the trader
(affiant in Annex B-1, petition, supra, 10) and a number of other city officials were
charged by the city fiscal in the Circuit Criminal Court of Manila for violations of
Republic Act 3019 (Anti-Graft Law) in connection with the alleged gross
overpricing of the same equipment (steam cleaners and air compressor)
purchased for the City.
The main opinion's justification for upholding the subpoena, viz, that "since the
only purpose of investigation is to discover facts as a basis of future action, any
unnecessary extension of the privilege (against self-incrimination)would thus be
unnecessary" 11 thus appears to be flawed in fact and in law: respondent was in
fact being investigated as respondent-suspect and without submitting to the
investigation was actually criminally charged in court; as a pure matter of legal
principle, the 1973 Constitution has recognized the necessity of strengthening
(and extending) the privilege against self-incrimination by expressly providing as
a constitutional mandate in the Bill of Rights that "Any person under investigation
for the commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right" (Article IV, section 20) and outlawing
the use of any confession obtained in violation of said section by declaring its
inadmissibility in evidence.
The thrust of all this is that the State with its overwhelming and vast powers and
resources can and must ferret out and investigate wrongdoing, graft and
corruption and at the same time respect the constitutional guarantees of the
individual's right to privacy, silence and due process and against self-
incrimination and unreasonable search and seizure. This means that leads and
charges must be investigated and followed up through the assistance of the
corresponding police and law enforcement agencies as provided in the
petitioner's executive charter 12 and the evidence secured by proper applications
for search warrants, and as conceded in the petition itself, after the
corresponding report to the President "to file the corresponding charges against
the persons who may appear responsible or merely refer them to other
appropriate offices such as the Fiscal's office, like what was done in other
cases." 13
Footnotes
8 Ibid, 652-653.
12 At 9.
15 At 9.
16 67 Phil. 62 (1939).
4 Petition, p. 3, par. 5.
6 6 SCRA 1064.
10 At page 2 hereof.
11 At page 9.
12 Ex. Order No. 88, dated Sept. 25, 1967, amending Ex.
Order No. 9 which created petitioner "as the executive
instrumentality in the Office of the President" thus provides
that petitioner shall "receive and evaluate, and (to) conduct
fact-finding investigations of sworn complaints against the
acts, conduct or behavior of any public official or employee
and (to) file aid prosecute the proper charges with the
appropriate agency." Petition, Annexes A and A-1.
(Emphasis supplied). .
13 Petition, at page 8.
EN BANC
MENDOZA, J.:
It appears that earlier, on July 22, 1994, two cases had been filed
against the two prosecutors with the Office of the Ombudsman for
Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One
was an administrative complaint for violation of Republic Act No.
6713 and P.D. No. 807 (the Civil Service Law) 10 and another one
was a criminal complaint for violation of §3(e) of Republic Act No.
3019 and Art. 208 of the Revised Penal Code. 11 The complaints
were based on the alleged refusal of petitioner and Kintanar to
obey the orders of the Ombudsman to charge Mayor Ilustrisimo
with attempted rape.
I.
It does not matter that the Office of the Provincial Prosecutor had
already conducted the preliminary investigation and all that
remained to be done was for the Office of the Provincial Prosecutor
to file the corresponding case in court. Even if the preliminary
investigation had been given over to the Provincial Prosecutor to
conduct, his determination of the nature of the offense to be
charged would still be subject to the approval of the Office of the
Ombudsman. This is because under §31 of the Ombudsman's Act,
when a prosecutor is deputized, he comes under the "supervision
and control" of the Ombudsman which means that he is subject to
the power of the Ombudsman to direct, review, approve, reverse or
modify his (prosecutor's) decision. 16 Petitioner cannot legally act
on her own and refuse to prepare and file the information as
directed by the Ombudsman.
II.
III.
A.
Petitioner contends that her suspension is invalid because the
order was issued without giving her and Provincial Prosecutor
Kintanar the opportunity to refute the charges against them and
because, at any rate, the evidence against them is not strong as
required by §24. The contention is without merit. Prior notice and
hearing is a not required, such suspension not being a penalty but
only a preliminary step in an administrative investigation. As held in
Nera v. Garcia: 17
B.
C.
SO ORDERED.
Separate Opinions
On the other hand, the still shorter period of sixty (60) days
prescribed in the Local Government Code of 1991 4 as the
maximum period for the preventive suspension of local elective
officials is justifiable and deemed sufficient not only because the
respondent involved is elected by the people, but more precisely
because such preventive suspension may only be ordered "after
the issues are joined." That means that before the order of
suspension is issued, all the preliminary requirements and
exchanges had been completed and the respondent had already
filed his counter-affidavits to the affidavits of the complainant and
the latter's witnesses. At that stage, the case is ready for resolution
if the parties would not opt for a formal hearing.
Footnotes
7 Rollo, p. 72.
10 OMB-VIS-(ADM)-94-0189.
11 OMB-VIS-(CRIM)-94-0475.
19 At 655.
THIRD DIVISION
DECISION
MARTIRES, J.:
This petition for review on certiorari seeks to reverse and set aside the 20
October 2008 Decision1 and the 17 February 2009 Resolution2 of the Court of
Appeals (CA) in CA-G.R. SP No. 100157 which affirmed the 19 January 2007
decision3 of the Office of the President (OP) dismissing petitioner Carlos R.
Saunar (Saunar) from government service.
THE FACTS
In Special Order No. 40035 dated 27 August 2004, Saunar was reassigned as
regional director for Western Mindanao based in Zamboanga City. During his
stint as such, he received a subpoena ad testificandum from the Sandiganbayan
requiring him to testify in the plunder case against President Estrada. After
securing approval from his immediate supervisor Filomeno Bautista (Bautista),
Deputy Director for Regional Operation Services (DDROS), Saunar appeared
before the Sandiganbayan on several hearing dates, the last being on 27
October 2004.6
On 29 October 2004, then NBI Director Reynaldo Wycoco (Wycoco) issued
Special Order No. 0050337 informing Saunar that he was relieved from his duties
as regional director for Western Mindanao and was ordered to report to the
DDROS for further instructions. Pursuant thereto, he reported to Bautista on the
first week of November 2004. Bautista informed Saunar that an investigation was
being conducted over his testimony before the Sandiganbayan and that he
should just wait for the developments in the investigation. In the meantime,
Bautista did not assign him any duty and told him to be available at any time
whenever he would be needed. He made himself accessible by staying in
establishments near the NBI. In addition, he also attended court hearings
whenever required.8
The OP Decision
In its 19 January 2007 decision, the OP found Saunar guilty of Gross Neglect of
Duty and of violating Section 3(e) of Republic Act (R.A.) No. 3019, and dismissed
him from service. It pointed out that Saunar failed to report for work for more than
a year which he himself admitted when he explained that he did not report for
work because he had not been assigned any specific duty or responsibility. The
OP highlighted that he was clearly instructed to report to the DDROS but he did
not do so. It added that it would have been more prudent for Saunar to have
reported for work even if no duty was specifically assigned to him, for the precise
reason that he may at any time be tasked with responsibilities. The OP, however,
absolved Saunar from allegedly keeping government property during the time he
did not report for work, noting that he was able to account for all the items
attributed to him. The dispositive portion reads:
The CA Ruling
In its assailed 20 October 2008 decision, the CA affirmed in toto the OP decision.
The appellate court ruled that Saunar was not deprived of due process because
he was informed of the charges against him and was given the opportunity to
defend himself. It expounded that the absence of formal hearings in
administrative proceedings is not anathema to due process.
On the other hand, the CA agreed that Saunar was guilty of Gross Neglect of
Duty as manifested by his being on Absence Without Leave (AWOL) for a long
period of time. The appellate court disregarded Saunar's explanation that he
stayed in establishments nearby and that he had attended court hearings from
time to time. In addition, the CA found that Saunar violated Section 3(e) of R.A.
No. 3019 because public interest was prejudiced when he continued to receive
his salary in spite of his unjustified absences. Thus, it ruled:
WHEREFORE, in view of the foregoing premises, the petition for review filed in
this case is hereby DENIED and, consequently, DISMISSED for lack of merit,
and the assailed Decision of the Executive Secretary Eduardo R. Ermita dated
January 19, 2007 is hereby AFFIRMEDintoto.12
Saunar moved for reconsideration but it was denied by the CA in its assailed 17
February 2009 resolution.
ISSUES
II
Saunar bewails that he was deprived of due process, pointing out that no real
hearing was ever conducted considering that the clarificatory conference
conducted by the P AGC was a sham. In addition, he asserts that he was not
notified of the charges against him because he was only made aware of the
allegations after the P AGC had formally charged him. Further, Saunar highlights
the delay between the time PAGC received Wycoco’s letter-complaint and when
he received the formal charge from the P AGC.
Section 1, Article III of the Constitution is similar with the Fifth and Fourteenth
Amendment of the American Constitution in that it guarantees that no one shall
be deprived of life, liberty or property without due process of law. While the words
used in our Constitution slightly differ from the American Constitution, the
guarantee of due process is used in the same sense and has the same force and
effect.14 Thus, while decisions on due process of American courts are not
controlling in our jurisdiction, they may serve as guideposts in the analysis of due
process as applied in our legal system.
In subsequent decisions, the U.S. Supreme Court clarified that a lack of formal
hearing in the administrative level does not violate procedural due process. In
Arnett v. Kennedy (Arnett), 19 a case involving the dismissal of a non-
probationary federal employee, the US Supreme Court ruled that a trial-type
hearing before an impartial hearing officer was not necessary before the
employee could be removed from office because the hearing afforded by
administrative appeal procedures after the actual dismissal is a sufficient
requirement of the Due Process Clause.
Only in Goldberg has the Court held that due process requires an evidentiary
hearing prior to a temporary deprivation. It was emphasized there that welfare
assistance is given to persons on the very margin of subsistence:
The crucial factor in this context x x x is that termination of aid pending resolution
of a controversy over eligibility may deprive an eligible recipient of the very
means by which to live while he waits.
Eligibility for disability benefits, in contrast, is not based upon financial need. x x x
xxxx
All that is necessary is that the procedures be tailored, in light of the decision to
be made, to the "capacities and circumstances of those who are to be heard to
insure that they are given a meaningful opportunity to present their case. In
assessing what process is due in this case, substantial weight must be given to
the good-faith judgments of the individuals charged by Congress with the
administration of social welfare programs that the procedures they have provided
assure fair consideration of the entitlement claims of individuals. This is
especially so where, as here, the prescribed procedures not only provide the
claimant with an effective process for asserting his claim prior to any
administrative action, but also assure a right to an evidentiary hearing, as well as
to subsequent judicial review, before the denial of his claim becomes final. 21
It is true that in both Arnett and Mathews, the U.S. Supreme Court ruled that due
process. was not violated due to the lack of a formal hearing before the
employee "was dismissed and welfare benefits were cancelled in the respective
cases: Nevertheless, in bo.th cases it was recognized that the aggrieved party
had the opportunity for a hearing to settle factual or evidentiary disputes in
subsequent procedures. In our legal system, however, the opportunity for a
hearing after the administrative level may not arise as the reception of evidence
or the conduct of hearings are discretionary on the part of the appellate courts.
In our jurisdiction, the constitutional guarantee of due process is also not limited
to an exact definition.22 It is flexible in that it depends on the circumstances and
varies with the subject matter and the necessities of the situation.23
In the landmark case of Ang Tibay v. The Court of Industrial Relations,24 the
Court eruditely expounded on the concept of due process in administrative
proceedings, to wit:
The fact, however, that the Court of Industrial Relations may be said to be free
from the rigidity of certain procedural requirements does not mean that it can, in
justiciable cases coming before it, entirely ignore or disregard the fundamental
and essential requirements of due process in trials and investigations of an
administrative character. There are cardinal primary rights which must be
respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in
support thereof. In the language of Chief Justice Hughes, in Morgan v. U. S., 304
U. S. 1, 58 S. Ct. 773, 999, 82 Law. ed 1129, "the liberty and property of the
citizen shall be protected by the rudimentary requirements of fair play."
(2) Not only must the party be given an opportunity to present his case and to
adduce evidence tending to establish the rights which he asserts but the tribunal
must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S.
298 U.S. 468, 56 S. Ct. 906, 80 Law. ed. 1288.) In the language of this Court in
Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the
corresponding duty on the part of the board to consider it, is vain. Such right is
conspicuously futile if the person or persons to whom the evidence is presented
can thrust it aside without notice or consideration."
(3) While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. A decision with absolutely nothing to support it
is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This
principle emanates from the more fundamental principle that the genius of
constitutional government is contrary to the vesting of unlimited power anywhere.
Law is both a grant and a limitation upon power.
(4) Not only must there be some evidence to support a finding or conclusion (City
of Manila vs. Agustin, G. R. No. 45844, promulgated November 29, 1937,
XXXV10. G. 1335), but the evidence must be "substantial." (Washington, Virginia
& Maryland Coach Co. v. National Labor Relations Board, 301 U. S. 142, 147, 57
S. Ct. 648, 650, 81 Law ed 965.) "Substantial evidence is more than a mere
scintilla It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." (Appalachian Electric Power v. National Labor
Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v.
Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-stillwater Knitting Co. v.
National Labor Relations Board, ·2 Cir., 98 F. 2d 758, 760.) ... The statute
provides that 'the rules of evidence prevailing in courts of law and equity
shall not be controlling.' The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of
technical rules so that the mere admission of matter which would be
deemed incompetent in judicial proceedings would not invalidate the
administrative order. (Interstate Commerce Commission v. Baird, 194 U. S. 25,
44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v.
Louisville & Nashville R. Co., 227 U. S. 88, 93, 33 S. Ct. 185, 187, 57 Law. ed.
431; United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 288, 44 S. Ct.
565, 569, 68 Law. ed. lola; Tagg Bros. & Moorhead v. United States, 280 U. S.
420, 442, 50 S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. Mere uncorroborated
hearsay or rumor does not constitute substantial evidence. (Consolidated Edison
Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv.
Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at the hearing, or
at least contained in the record and disclosed to the parties affected. (Interstate
Commence Commission vs. L. & N. R. Co., 227 U. S. 88, 33 S. Ct. 185, 57 Law.
ed. 431.) Only by confining the administrative tribunal to the evidence disclosed
to the parties, can the latter be protected in their right to know and meet the case
against them. It should not, however, detract from their duty actively to see
that the law is enforced, and for that purpose, to use the authorized legal
methods of securing evidence and informing itself of facts material and
relevant to the controversy. Boards of inquiry may be appointed for the
purpose of investigating and determining the facts in any given case, but their
report and decision are only advisory. (Section 9, Commonwealth Act No. 103.)
The Court of Industrial Relations may refer any industrial or agricultural dispute of
any matter under its consideration or advisement to a local board of inquiry, a
provincial fiscal, a justice of the peace or any public official in any part of the
Philippines for investigation, report and recommendation, and may delegate to
such board or public official such powers and functions as the said Court of
Industrial Relations may deem necessary, but such delegation shall not affect the
exercise of the Court itself of any of its powers (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore, must act on
its or his own independent consideration of the law and facts of the controversy,
and not simply accept the views of a subordinate in arriving at a decision. It may
be that the volume of work is such that it is literally impossible for the titular
heads of the Court of Industrial Relations personally to decide all controversies
coming before them. In the United States the difficulty is solved with the
enactment of statutory authority ,authorizing examiners or other subordinates to
render final decision, with right to appeal to board or commission, but in our case
there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial questions, render
its decision in such a manner that the parties to the proceeding can know the
various issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it. 25
(emphases supplied)
From the pronouncements of the Court in Ang Tibay, the fluid concept of
administrative due process continued to progress. In In Re: De Borja and
Flores,26 the Court ruled that there was no denial of due process when the Public
Service Commission cancelled the certificate of Jose de Borja to operate an ice
plant without prior notice or hearing because a hearing was conducted after the
applicant filed a motion for reconsideration. In Manila Trading Supply Co. v.
Philippine Labor Union,27 the Court ruled that due process was observed even if
the report of the investigating officer was not set for hearing before the Court of
Industrial Relations because during the investigation stage, the parties were
given the opportunity to cross-examine and present their side to the case. It is
noteworthy that in both cases due process was observed because the parties
were given the chance for a hearing where they could confront the witnesses
against them.
In Gas Corporation of the Phils. v. Minister Inciong, 28 the Court explained that
there is no denial of due process when a party is afforded the right to cross-
examine the witnesses but fails to exercise the same, to wit:
1. The vigor with which counsel for petitioner pressed the claim that there was a
denial of procedural due process is inversely proportional to the merit of this
certiorari and prohibition suit as is quite evident from the Comment of the office of
the Solicitor General. It is undoubted that the due process mandate must be
satisfied by an administrative tribunal or agency. So it was announced by
Justice Laurel in the landmark case of Ang Tibay v. Court of Industrial
Relations. That is still good law. It follows, therefore, that if procedural due
process were in fact denied, then this petition must prosper. It is equally well-
settled, however, that the standard of due process that must be met in
proceedings before administrative tribunals allows a certain latitude as
long as the element of fairness is not ignored. So the following recent cases
have uniformly held: Maglasang v. Opie, Nation Multi Service Labor Union v.
Agcaoili, Jacqueline Industries v. National Labor Relations Commission,
Philippine Association of Free Labor Unions v. Bureau of Labor Relations,
Philippine Labor Alliance Council v. Bureau of Labor Relations, and Montemayor
v. Araneta University Foundation. From the Comment of the office of the Solicitor
General, it is quite clear that no imputation of arbitrariness can be justified. The
opportunity to present its side of the case was given both parties to the
controversy. If, for reasons best known to itself, petitioner did not avail of its right
to do so, then it has only itself to blame. No constitutional infirmity could then be
imputed to the proceeding before the labor arbiter.29 (emphasis supplied)
Again, there was no denial of due process in the above-mentioned case because
the parties were ultimately given the chance to confront the witnesses against
them. It just so happened that therein petitioner failed to
Thus, while the Court in Arboleda recognized that the lack of a formal hearing
does not necessarily transgress the due process guarantee, it did not however
regard the formal hearing as a mere superfluity. It continued that it is a
procedural right that may be invoked by the party. It is true that in subsequent
cases,32 the Court reiterated that a formal hearing is not obligatory in
administrative proceedings because the due process requirement is satisfied if
the parties are given the opportunity to explain their respective sides through
position papers or pleadings. Nonetheless, the idea that a formal hearing is not
indispensable should not be hastily thrown around by administrative bodies.
A closer perusal of past jurisprudence shows that the Court did not intend to
trivialize the conduct of a formal hearing but merely afforded latitude to
administrative bodies especially in cases where a party fails to invoke the right to
hearing or is given the opportunity but opts not to avail of it. In the landmark case
of Ang Tibay, the Court explained that administrative bodies are free from a strict
application of technical rules of procedure and are given sufficient leeway. In the
said case, however, nothing was said that the freedom included the setting aside
of a hearing but merely to allow matters which would ordinarily be incompetent or
inadmissible in the usual judicial proceedings.
In fact, the seminal words of Ang Tibay manifest a desire for administrative
bodies to exhaust all possible means to ensure that the decision rendered be
based on the accurate appreciation of facts. The Court reminded that
administrative bodies have the active duty to use the authorized legal
methods of securing evidence and informing itself of facts material and
relevant to the controversy. As such, it would be more in keeping with
administrative due process that the conduct of a hearing be the general rule
rather than the exception.
In Jason v. Executive Secretary Torres (Joson),34 the Court ruled that the
respondent was denied due process after he was deprived of the right to a formal
investigation with the opportunity to face the witnesses against him, to wit:
xxxx
Petitioner's right to a formal investigation was not satisfied when the
complaint against him was decided on the basis of position papers. There
is nothing in the Local Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that administrative cases against
elective local officials can be decided on the basis of position papers. A.O. No.
23 states that the Investigating Authority may require the parties to submit their
respective memoranda but this is only after formal investigation and hearing.
A.O. No. 23 does not authorize the Investigating Authority to dispense with
a hearing especially in cases involving allegations of fact which are not
only in contrast but contradictory to each other. These contradictions are
best settled by allowing the examination and cross-examination of witnesses.
Position papers are often-times prepared with the assistance of lawyers and their
artful preparation can make the discovery of truth difficult. The jurisprudence
cited by the DILG in its order denying petitioner's motion for a formal investigation
applies to appointive officials and employees. Administrative disciplinary
proceedings against elective government officials are not exactly similar to those
against appointive officials. In fact, the provisions that apply to elective local
officials are separate and distinct from appointive government officers and
employees. This can be gleaned from the Local Government Code itself. 35
(emphases and underlining supplied)
xxxx
Under the P AGC rules of procedure, it is crystal clear that the conduct of
clarificatory hearings is discretionary. Nevertheless, in the event that it finds the
necessity to conduct one, there are rules to be followed. One, the parties are to
be notified of the clarificatory hearings. Two, the parties shall be afforded the
opportunity to be present in the hearings without the right to examine witnesses.
They, however, may ask questions and elicit answers from the opposing party
coursed through the P AGC.
The Court finds that Saunar was not treated fairly in the proceedings before the P
AGC. He was deprived of the opportunity to appear in all clarificatory hearings
since he was not notified of the clarificatory hearing attended by an NBI official.
Saunar was thus denied the chance to propound questions through the P AGC
against the opposing parties, when the rules of the P AGC itself granted Saunar
the right to be present during clarificatory hearings and the chance to ask
questions against the opposing party.
Even assuming that Saunar was not deprived of due process, we still find merit in
reversing his dismissal from the government service.
It is true that the dropping from the rolls as a result of AWOL is not disciplinary in
nature and does not result in the forfeiture of benefits or disqualification from re-
employment in the government.36 Nevertheless, being on AWOL may constitute
other administrative offenses, which may result in the dismissal of the erring
employees and a forfeiture of retirement benefits.37 In the case at bar, Saunar
was charged with the administrative offense of gross neglect of duty in view of
his prolonged absence from work.
The OP found Saunar guilty of Gross Neglect of Duty and of violating Section
3(e) of R.A. No. 3019 because he was on AWOL from March 2005 to May 2006.
He, however, bewails that from the time we was directed to report to the DDROS,
he was never assigned a particular duty or responsibility. As such, Saunar
argues that he cannot be guilty of gross neglect of duty because there was no
"duty" to speak of. In addition, he assails that he had made himself readily
available because he stayed in establishments near the NBI.
When Saunar was relieved as regional director of Western Mindanao and was
ordered to report to the DDROS, he was obligated to report to the said office. He,
however, was not assigned any specific task or duty and was merely advised to
make himself readily available. Saunar often stayed in establishments near the
NBI because he was also not provided a specific station or office. The same,
nonetheless, does not establish that he willfully and intentionally neglected his
duties especially since every time he was required to attend court hearings
through special orders issued by the NBI, he would do so. Clearly, Saunar never
manifested any intention to neglect or abandon his duties as an NBI official as he
remained compliant with the lawful orders given to him. In addition, when he
received the order reassigning him as the regional director for the NBI Bicol
Office, he also obeyed the same. Saunar’s continued compliance with the special
orders given to him by his superiors to attend court hearings negate the charge
of gross neglect of duty as it evinces a desire to fulfil the duties and
responsibilities specifically assigned to him.
The Office of the Solicitor General (OSG), however, argues that Saunar’s
attendance at several court hearings pursuant to special orders does not
exculpate him from the charge of gross neglect of duty. As highlighted by the
OSG, the certificate of appearances Saunar presented account only for fourteen
(14) days.39
his previous position had become impossible. Thus, the only recourse left is to
grant monetary benefits to which illegally dismissed government employees are
entitled.
Ginson and Regis also involved the question of the proper fixing of backwages.
Both cases awarded backwages but limited it to a period of five years. Ginson
does not provide for an exhaustive explanation for this five-year cap. Regis, on
the other hand, cites Cristobal v. Melchor, Balquidra v. CFI of Capiz, Branch II,
32 Laganapan v. Asedillo, Antiporda v. Ticao, and San Luis v. Court of Appeals,
in support of its ruling. We note that these cases also do not clearly explain why
there must be a cap for the award of backwages, with the exception of Cristobal.
In Cristobal, a 1977 case, we held that the award of backwages should be for a
fixed period of five years, applying by analogy the then prevailing doctrine in
labor law involving employees who suffered unfair labor practice. We highlight
that this rule has been rendered obsolete by virtue of Republic Act No. 6175
which amended the Labor Code. Under the Labor Code, employees illegally
dismissed are entitled to the payment of backwages from the time his or her
compensation was withheld up to the time of his or her actual reinstatement.
We repeated this ruling in the 2005 case Batangas State University v. Bonifacio,
in the 2007 case Ramagos v. Metro Cebu Water District, and in the 2010 case
Civil Service Commission v. Magnaye, Jr.
xxxx
We rule that employees in the civil service should be accorded this same
right. It is only by imposing this rule that we will be able to uphold the
constitutional right to security of tenure with full force and effect. Through this,
those who possess the power to dismiss employees in the civil service will
be reminded to be more circumspect in exercising their authority as a
breach of an employee's right to security of tenure will lead to the full
application of law and jurisprudence to ensure that the employee is
reinstated and paid complete backwages. (emphasis supplied)
As it stands, Saunar should have been entitled to full back wages from the time
he was illegally dismissed until his reinstatement. In view of his retirement,
however, reinstatement is no longer feasible. As such, the back wages should be
computed from the time of his illegal dismissal up to his compulsory retirement. 43
In addition, Saunar is entitled to receive the retirement benefits he should have
received if he were not illegally dismissed.
SO ORDERED.
SAMUEL R. MARTIRES
Associate Justice
Footnotes
*On Official Leave
1 Rollo, pp. 8-19.
2 Id. at 21-22.
3 Id. at 168-172; issued by Executive Secretary Eduardo R. Ermita.
4 Id. at 34-36.
5 Id. at 226.
6 Id. at 38-39.
7 Id. at 225.
8 Id. at 41-44.
9 Id.at51-52.
10 Id. at 172.
11 Id. at 173-174.
12 Id. at. 18.
13 Id. at 66.
14 Smith, Bell and Co v. Natividad, 40 Phil. 136, 144-145 (1919).
15 Goldberg v. Kelly, 397 U.S. 267 (1970).
16 Arnettv. Kennedy, 416 U.S. 155 (1974).
17 Goldbergv. Kelly, supra note 15 at 269.
18 Id.
19 Arnett v. Kennedy, supra note 16 at 164.
SECOND DIVISION
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated April 4,
2006 July 19, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 88891 which
reversed and set aside the Resolutions dated November 23, 2004 4 and January
6, 20055 of petitioner Philippine Postal Corporation (PPC), through its then
Postmaster General and Chief Executive Officer (CEO) Dario C. Rama (PG
Rama), finding that the latter gravely abused its discretion when it revived the
administrative charges against respondent Crisanto G. De Guzman (De
Guzman) despite their previous dismissal.
The Facts
Since the Postal Services Office was then a line-agency of the Department of
Transportation and Communication(DOTC), Atty. Buensalida’s investigation
report was forwarded to the said department’s Investigation Security and Law
Enforcement Staff (ISLES) for further evaluation and approval. Contrary to the
findings of Atty. Buensalida, however, the ISLES, through a Memorandum9dated
February 26, 1990prepared by Director Antonio V. Reyes (Dir. Reyes),
recommended that De Guzman be exonerated from the charges against him due
to lack of merit. The said recommendation was later approved by DOTC
Assistant Secretary Tagumpay R. Jardiniano (Asec. Jardiniano) in a
Memorandum10 dated May 15, 1990.
On February 6, 1992, Republic Act No. (RA)7354,11 otherwise known as the ―
”Postal Service Act of 1992,” was passed. Pursuant to this law, the Postal
Services Office under the DOTC was abolished, and all its powers, duties, and
rights were transferred to the PPC.12 Likewise, officials and employees of the
Postal Services Office were absorbed by the PPC.13
Subsequently, or on July 16, 1993, De Guzman, who had by then become Chief
Postal Service Officer, was formally charged14 by the PPC, through Postmaster
General Eduardo P. Pilapil(PG Pilapil), for the same acts of ―dishonesty, gross
violation of regulations, and conduct grossly prejudicial to the best interest of the
service, and the Anti-graft law, committed as follows”:
Investigation disclosed that while you were designated as Acting District Postal
Inspector with assignment at South Cotabato District, Postal Region XI, Davao
City, you personally made unauthorized deductions and/or cuttings from the ten
(10%) percent salary differential for the months of January-March, 1988,when
you paid each of the employees of the post office at Surallah, South Cotabato, on
the last week of April 1988, and you intentionally failed to give to Postmaster
Juanito D. Dimaup, of the said post office his differential amounting to ₱453.91,
Philippine currency; that you demanded and required Letter Carrier Benjamin
Salero, of the aforestated post office to give fifty (₱50.00) pesos out of the
aforesaid differential; that you personally demanded, take away and encashed
the salary differential check No. 008695317 in the total amount of ₱1,585.67,
Philippine currency, of Postmaster Benjamin C. Charlon, of the post office at
Lake Cebu, South Cotabato, for your own personal gain and benefit to the
damage and prejudice of the said postmaster; that you personally demanded,
required and received from Postmaster Peniculita B. Ledesma, of the post office
of Sto. Niño, South Cotabato, the amount of ₱300.00, ₱200.00 and ₱100.00 for
hazard pay, COLA differential and contribution to the affair "Araw ng Kartero and
Christmas Party," respectively; that you personally demanded and required Letter
Carrier Feliciano Bayubay, of the post office at General Santos City to give
money in the amount of ₱1,000.00, Philippine Currency, as a condition precedent
for his employment in this Corporation, and you again demanded and personally
received from the said letter carrier the amount of ₱300.00 Philippine currency,
as gift to the employees of the Civil Service Commission, Davao City to facilitate
the release of Bayubay’s appointment; that you demanded and forced
Postmaster Felipe Collamar, Jr.,of the post office at Maitum, South Cotabato to
contribute and/or produce one (1) whole Bariles fish for shesami (sic), and you
also required and received from the aforesaid postmaster the amount of ₱500.00
Philippine currency; that you demanded and required Postmaster Diosdado B.
Delfin to give imported wine and/or ₱700.00, Philippine currency, for gift to the
outgoing Regional Director Escalada; and that you failed to liquidate and return
the substantial amount of excess contributionson April, 1987, June, 1987 and
December, 1987,for Postal Convention at MSU, arrival of Postmaster General
Banayo and Araw ng Kartero and Christmas Party, respectively, for your own
personal gain and benefit to the damage and prejudice of all the employees
assigned at the aforementioned district.
It appears, however, that the a fore-stated decision was not implemented until
five (5) years later when Regional Director Mama S. Lalanto (Dir. Lalanto) issued
a Memorandum17 dated August 17, 1999 for this purpose. De Guzman lost no
time in filing a motion for reconsideration,18 claiming that: (a) the decision sought
to be implemented was recalled on August 29, 1994 by PG Pilapil himself; and
(b)since the decision had been dormant for more than five (5)years, it may not be
revived without filing another formal charge. The motion was, however, denied in
a Resolution19 dated May 14, 2003, pointing out that De Guzman failed to
produce a copy of the alleged recall order even if he had been directed to do so.
On June 10, 2005, De Guzman appealed30 the Resolution dated May 10, 2005
before the PPC Board, which resolution was allegedly received by De Guzman
on May 26, 2005. Almost a year later, the Board issued a Resolution 31 dated May
25, 2006,denying the appeal and affirming with finality the Decision dated
August 15, 1994 and the Resolution dated May 14, 2003. The motion for
reconsideration subsequently filed by De Guzman was likewise denied in
aResolution32 dated June 29, 2006. On April 4, 2006, the CA rendered a
Decision33 in CA-G.R. SP No. 88891, reversing the PPC Resolutions dated
November 23, 2004 and January 6, 2005, respectively. It held that the revival of
the case against De Guzman constituted grave abuse of discretion considering
the clear and unequivocal content of the Memorandum dated May 15, 1990 duly
signed by Asec. Jardiniano that the complaint against De Guzman was already
dismissed.
Meanwhile, on July 26, 2006, De Guzman filed an appeal of the PPC Board’s
Resolutions dated May 25, 2006 and June 29, 2006 with the CSC35 which was,
however, dismissedin Resolution No. 08081536 dated May 6, 2008. The CSC
equally denied De Guzman’s motion for reconsideration there from in Resolution
No. 09007737 dated January 14, 2009.
The essential issues for the Court’s resolution are whether: (a) De Guzman
unjustifiably failed to exhaust the administrative remedies available to him; (b) De
Guzman engaged inforum-shopping; and (c) the investigation conducted by the
DOTC, through the ISLES, bars the filing of the subsequent charges by PPC.
The thrust of the rule on exhaustion of administrative remedies is that the courts
must allow the administrative agencies to carry out their functions and discharge
their responsibilities within the specialized areas of their respective competence.
It is presumed that an administrative agency, if afforded an opportunity to pass
upon a matter, will decide the same correctly, or correct any previous error
committed in its forum. Furthermore, reasons of law, comity and convenience
prevent the courts from entertaining cases proper for determination by
administrative agencies. Hence, premature resort to the courts necessarily
becomes fatal to the cause of action of the petitioner.38 PPC claims that De
Guzman failed to subscribe to the rule on exhaustion of administrative remedies
since he opted to file a premature certiorari case before the CA instead of filing
an appeal with the PPC Board, or of an appeal to the CSC, which are adequate
remedies under the law.39
Under Section 21(d) of RA7354, the removal by the Postmaster General of PPC
officials and employees below the rank of Assistant Postmaster General may be
appealed to the Board of the PPC, viz.:
xxxx
(d) to appoint, promote, assign, reassign, transfer and remove personnel below
the ranks of Assistant Postmaster General: Provided, That in the case of removal
of officials and employees, the same may be appealed to the Board;
xxxx
This remedy of appeal to the Board is reiterated in Section 2(a), Rule II of the
Disciplinary Rules and Procedures of the PPC, which providesfurther that the
decision of the Board is, in turn, appeal able to the CSC, viz.:
B. Forum-shopping.
PPC further submits that De Guzman violated the rule on forum-shopping since
he still appealed the order of his dismissal before the PPC Board,
notwithstanding the pendency of his petition for certiorari before the CA
identically contesting the same.44
The petitions are denied. The present controversy is on all fours with Young v.
Sy, in which we ruled that the successive filing of a notice of appeal and a
petition for certiorari both to assail the trial court’s dismissal order for non-suit
constitutes forum shopping. Thus,
Forum shopping consists of filing multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment.
There is forum shopping where there exist: (a) identity of parties, or at least
suchparties as represent the same interests in both actions; (b) identity of rights
asserted and relief prayed for, the relief being founded on the same facts; and (c)
the identity of the two preceding particulars is such that any judgment rendered in
the pending case, regardless of which party is successful would amount to res
judicata.
Ineluctably, the petitioner, by filing an ordinary appeal and a petition for certiorari
with the CA, engaged in forum shopping. When the petitioner commenced the
appeal, only four months had elapsed prior to her filing with the CA the Petition
for Certiorari under Rule 65 and which eventually came up to this Court by way of
the instant Petition (re: Non-Suit). The elements of lit is pendentia are present
between the two suits. As the CA, through its Thirteenth Division, correctly noted,
both suits are founded on exactly the same facts and refer to the same subject
matter – the RTC Orders which dismissed Civil Case No. SP-5703 (2000) for
failure to prosecute. In both cases, the petitioner is seeking the reversal of the
RTC orders. The parties, the rights asserted, the issues professed, and the
reliefs prayed for, are all the same. It is evident that the judgment of one forum
may amount to res judicata in the other.
xxxx
The remedies of appeal and certiorari under Rule 65 are mutually exclusive and
not alternative or cumulative. This is a firm judicial policy. The petitioner cannot
hedge her case by wagering two or more appeals, and, in the event that the
ordinary appeal lags significantly behind the others, she cannot post facto
validate this circumstance as a demonstration that the ordinary appeal had not
been speedy or adequate enough, in order to justify the recourse to Rule 65. This
practice, if adopted, would sanction the filing of multiple suits in multiple fora,
where each one, as the petitioner couches it, becomes a ―precautionary
measure” for the rest, thereby increasing the chances of a favorable decision.
This is the very evil that the proscription on forum shopping seeks to put right. In
Guaranteed Hotels, Inc. v. Baltao, the Court stated that the grave evil sought to
be avoided by the rule against forum shopping is the rendition by two competent
tribunals of two separate and contradictory decisions. Unscrupulous party
litigants, taking advantage of a variety of competent tribunals, may repeatedly try
their luck in several different fora until a favorable result is reached. To avoid the
resultant confusion, the Court adheres strictly to the rules against forum
shopping, and any violation of these rules results in the dismissal of the case.
Thus, the CA correctly dismissed the petition for certiorari and the petition for
review (G.R. No. 157745) filed with this Court must be denied for lack of merit.
We also made the same ruling in Candido v. Camacho, when the respondent
therein assailed identical court orders through both an appeal and a petition for
an extraordinary writ.
Here, petitioners questioned the June 26, 2000 Order, the August 21, 2000
Clarificatory Order, and the November 23, 2000 Omnibus Order of the RTC via
ordinary appeal (CA-G.R. CV No. 69892) and through a petition for certiorari(CA-
G.R. SP No. 62915) in different divisions of the same court. The actions were
filed with a month’s interval from each one. Certainly, petitioners were seeking to
obtain the same relief in two different divisions with the end in view of endorsing
which ever proceeding would yield favorable consequences. Thus, following
settled jurisprudence, both the appeal and the certiorari petitions should be
dismissed.(Emphases supplied; citations omitted)
Similar thereto, the very evil that the prohibition on forum-shopping was seeking
to prevent – conflicting decisions rendered by two (2) different tribunals–resulted
from De Guzman’s abuse of the processes. Since De Guzman’s appeal before
the PPC Board was denied in its Resolutions49dated May 25, 2006 and June 29,
2006, De Guzmans ought the review of said resolutions before the CSC where
he raised yet again the defense of res judicata. Nonetheless, the CSC, in its
Resolution No. 08081550 dated May 6, 2008, affirmed De Guzman’s dismissal,
affirming "the Resolutions of the PPC Board of Directors dismissing De Guzman
from the service for Dishonesty, Gross Violation of Regulations, and Conduct
Grossly Prejudicial to the Best Interest of the Service."51
Moreover, De Guzman’s contention56 that the filing of the notice of appeal from
the said Resolution was only "taken as a matter of precaution" 57 cannot extricate
him from the effects of forum-shopping. He was fully aware when he filed CA-
G.R. SP No. 88891 that PG Ramahad forwarded the records of the case to the
PPC Board for purposes of appeal.58 Yet, he decided to bypass the
administrative machinery. And this was not the first time he did so. In his
Comment to the instant petition, De Guzman claimed59 that in response to the
Memorandum60 dated August 17, 1999 issued by Dir. Lalanto implementing his
dismissal from service, he not only filed a motion for reconsideration but he
likewise challenged the actions of the PPC before the Regional Trial Court of
Manila through a petition for mandamus docketed as Case No. 99-95442. Even
when CA-G.R. SP No. 88891 was decided in De Guzman’s favor on April 4,
2006, and PPC’s motion for reconsideration was denied on July 19, 2006, De
Guzman nonetheless filed on July 26, 2006 an appeal before the CSC from the
denial by the PPC Board of his Notice of Appeal dated June 7, 2005 as pointed
out in CSC Resolution No. 090077.61 While De Guzman did inform the CSC that
he previously filed a petition for certiorari with the CA, he failed to disclose the
fact that the CA had already rendered a decision thereon resolving the
issue of res judicata,62 which was the very same issue before the CSC.
In addition, it may not be amiss to state that De Guzman’s petition for certiorari
was equally dismissible since one of the requirements for the availment thereof is
precisely that there should be no appeal. It is well-settled that the remedy to
obtain reversal or modification of the judgment on the merits is to appeal. This is
true even if the error, or one of the errors, ascribed to the tribunal rendering the
judgment is its lack of jurisdiction over the subject matter, or the exercise of
power in excess thereof, or grave abuse of discretion in the findings of fact or of
law set out in the decision.64 In fact, under Section 30, Rule III (C) of the
Disciplinary Rules and Procedures of the PPC, among the grounds for appeal to
the PPC Board from an order or decision of dismissal are: (a) grave abuse of
discretion on the part of the Postmaster General; and (b) errors in the finding of
facts or conclusions of law which, if not corrected, would cause grave and
irreparable damage or injury to the appellant. Clearly, therefore, with the remedy
of appeal to the PPC Board and thereafter to the CSC available to De Guzman,
certiorari to the CA should not have been permitted.
In this relation, it bears noting that PPC has sufficiently addressed De Guzman’s
argument that an appeal would not be a speedy and adequate remedy
considering that the resolution dismissing him from service was to be
"implemented immediately."65
To elucidate, on February 24, 2005, before De Guzman filed the petition for
certiorari dated March 12, 2005, the PPC Board had passed Board Resolution 66
No. 2005-14 adopting a "Corporate Policy that henceforth the decision of the
Postmaster General in administrative cases when the penalty is removal or
dismissal, the same shall not be final and executory pending appeal to the
Office of the Board of Directors." Shortly thereafter, or on March 8, 2005, PG
Rama issued Philpost Administrative Order67 No. 05-05 pursuant to the
aforementioned Board Resolution, the pertinent portions of which are quoted
hereunder:
PPC further claimed that instead of reporting for work while his motion for
reconsideration and, subsequently, his appeal were pending, "[De Guzman]
voluntarily elected to absent himself." Much later, however, De Guzman "finally
reported back [to]work and thereby received his salary and benefits in full for the
covered period."68 De Guzman failed to sufficiently rebut these claims, except to
say that he was never given any copy of the aforementioned board resolution
and administrative order.69 Therefore, considering that his dismissal was not to
be executed by PPC immediately (if he had appealed the same), De Guzman’s
contention that an appeal would not be a speedy and adequate remedysimilarly
deserves no merit.
C. Res judicata.
De Guzman likewise failed to convince the Court of the applicability of the
doctrine of res judicata for having been charged of the same set of acts for which
he had been exculpated by the ISLES of the DOTC whose recommendation for
the dismissal of the complaint against De Guzman was subsequently approved
by then DOTC Asec. Jardiniano.
The Court agrees with PPC’s argument that there was no formal charge filed by
the DOTC against De Guzman and, as such, the dismissal of the complaint
against him by Asec. Jardiniano, upon the recommendation of the ISLES, did not
amount to a dismissal on the merits that would bar the filing of another case.
While the CA correctly pointed out that it was the DOTC, through its Department
Head, that had disciplinary jurisdiction over employees of the then Bureau of
Posts, including De Guzman, it however proceeded upon the presumption that
De Guzman had been formally charged. But he was not.
Section 16. Formal Charge. – After a finding of a prima facie case, the
disciplining authority shall formally charge the person complained of. The
formal charge shall contain a specification of charge(s), a brief statement of
material or relevant facts, accompanied by certified true copies of the
documentary evidence, if any, sworn statements covering the testimony of
witnesses, a directive to answer the charge(s) in writing under oath in not less
than seventy-two (72) hours from receipt thereof, an advice for the respondent to
indicate in his answer whether or not he elects a formal investigation of the
charge(s), and a notice that he is entitled to be assisted by a counsel of his
choice. (Emphasis supplied)
The requisite finding of a prima facie case before the disciplining authority shall
formally charge the person complained of is reiterated in Section 9, Rule III (B) of
the Disciplinary Rules and Procedures of the PPC, to wit:
In order that res judicata may bar the institution of a subsequent action, the
following requisites must concur: (a) the former judgment must be final; (b) it
must have been rendered by a court having jurisdiction over the subject matter
and the parties; (c) it must be a judgment on the merits; and (d) there must be
between the first and the second actions (i) identity of parties, (ii) identity of
subject matter, and (iii) identity of cause of action.71
Hence, for the reasons above-discussed, the Court holds that PPC did not
gravely abuse its discretion when it revived the case against De Guzman despite
the previous dismissal thereof by Asec. Jardiniano. Since said dismissal was not
a judgment on the merits, the doctrine of res judicata does not apply.
In fine, due to the errors of the CA as herein detailed, the Court hereby grants the
present petition and accordingly reverses and sets aside the farmer's
dispositions. The Resolutions dated November 23, 2004 and January 6, 2005 of
the PPC ordering De Guzman's dismissal from the service are thus reinstated.
WHEREFORE, the petition is GRANTED. The Decision dated April 4, 2006 and
the Resolution dated July 19, 2006 of the Court of Appeals in CA-G.R. SP No.
88891 are REVERSED and SET ASIDE, and the Resolutions dated November
23, 2004 and January 6, 2005 of petitioner Philippine Postal Corporation are
hereby REINSTATED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
Footnotes
xxxx
13 Id.
14 Rollo, pp.73-74. Docketed asPPC ADM. CASE No. 94-4803.
15 Id. at 75-77. Penned by Postmaster General Eduardo P. Pilapil.
16 Id. at 77.
17As stated in De Guzman’s Letter dated August 18, 1999 to
Postmaster General Nicasio P. Rodriguez; id. at 78-79.
18 Id.
19Id. at 80-82. Penned by Postmaster General and CEO Diomedio
P. Villanueva.
20 Id. at 83-84.
21 Id. at 85-101.
22 Id. at 94-95.
23 No copy on record
24 Rollo, p.22.
25 Id. at 102-108.
26QuotingtheCSC Resolution No. 94-0521, the Disciplinary Rules
and Procedures of the PPC,and the CSC M.C. No. 19, Series of
1999; id. at 103.
27 Id. at104-105.
28 Id. at 23.
29 Id. at 109-138.
30 Id. at 139-141.
31 Id. at 142-144.
32 Id. at 145-146.
33 Id. at 44-56.
34 Id. at 57-59.
35 Id. at 337-338.
36 Id. at 326-332.
37 Id. at 333 -340.
38 Gonzales v. CA, 409 Phil. 684, 690-691 (2001).
39 Rollo, p. 27.
40Olanda v. Bugayong, 491 Phil. 626, 632 (2003), citing Corsiga v.
Defensor, 439 Phil. 875, 883 (2002).
41 Rollo, pp.139-141.
42 G.R. No. 158239, January 25, 2012, 664 SCRA 11.
43 Id. at 20.
44 Rollo, p.38.
45 See Young v. Sy, 534 Phil. 246, 266 (2006).
46De Guzman filed the petition for certiorari before the CA on
March 12, 2005, while he filed the appeal before the PPC Board on
June 10, 2005.
47 593 Phil. 71 (2008).
48Id. at 77-79, citing Young v. Sy, supra note 45, at 264-267;
Guaranteed Hotels, Inc. v. Baltao, 489 Phil. 702, 709 (2005); and
Candido v. Camacho, 424 Phil.291 (2002).
56 Rollo, p. 192.
57 Id.
58 Id. at 117.
59 Id. at170-171.
60As stated in De Guzman’s Letter dated August 18, 1999 to
Postmaster General Nicasio P. Rodriguez;id. at 78-79.
61 Id. at 337.
62 Id. at 338.
63Sps. Zosa v. Judge Estrella, supra note 47, at 79, citing Young v.
Sy, supra note 45, at 266-267, further citing Guaranteed Hotels,
Inc. v. Baltao, 489 Phil. 702, 709 (2005).
64Manacop v. Equitable PCIBank, G.R. Nos. 162814-17, August
25, 2005, 468 SCRA 256, 271.
65Rollo, p. 101. See dispositive portion of Resolution dated
November 23, 2004.
66 Id. at 147-149.
67 Id. at 151.
68 Id. at 30.
69 Id. at 187-188.
70
<http://www.dotc.gov.ph/index.php?option=com_k2&view=item&id=
118:dotc-proper>(visited November 6, 2013).
71
See Encinas v. Agustin, Jr., G.R. No. 187317, April 11, 2013, 696
SCRA 240, 260.
72 Id.
73 Rollo, p. 72.
74 Id. at 70-71.
75 See CA Decision dated April 4, 2006; id at 53.
Appendix A
EXECUTIVE ORDER NO. 292
INTRODUCTORY PROVISIONS
(4) Agency of the Government refers to any of the various units of the
Government, including a department, bureau, office, instrumentality,
or government-owned or controlled corporations, or a local
government or a distinct unit therein.
BOOK I
CHAPTER 1
THE NATIONAL TERRITORY
CHAPTER 2
THE PEOPLE
Section 5. Who are Citizens. - The following are the citizens of the
Philippines:
(1) Those who are citizens of the Philippines at the time of the
adoption of the Constitution;
(3) Those born before January 17, 1973, of Filipino mothers, who
elect Philippine citizenship, unless by the act or omission they are
deemed, under the law, to have renounced it.
(4) Those who are naturalized in accordance with law.
CHAPTER 3
STATE IMMUNITY FROM SUIT
Section 10. Non-suability of the State. - No suit shall lie against the
State except with its consent as provided by law.
(1) The State shall be legally bound and responsible only through the
acts performed in accordance with the Constitution and the laws by
its duly authorized representatives.
(2) The State shall not be bound by the mistakes or errors of its
officers or agents in the exercise of their functions.
CHAPTER 4
NATIONAL SYMBOLS AND OFFICIAL LANGUAGES
Section 14. Arms and Great Seal of the Republic of the Philippines. -
(1) The Arms shall have paleways of two (2) pieces, azure and gules;
a chief argent studded with three mullets equidistant from each other;
and, in point of honor, ovoid argent over all the sun rayonnant with
eight minor and lesser rays. Beneath shall be a scroll with the words
"Republic of the Philippines, " or its equivalent in the national
language, inscribed thereon.
(2) The Great Seal shall be circular in form, with the arms as
described in the preceding paragraph, but without the scroll and the
inscription thereon, and surrounding the whole, a double marginal
circle within which shall appear the words "Republic of the
Philippines," or its equivalent in the national language. For the
purpose of placing the Great Seal, the color of the arms shall not be
deemed essential.
Section 15. Use and Custody of Great Seal. - The Great Seal shall be
affixed to or placed upon all commissions signed by the President
and upon such other official documents and papers of the Republic of
the Philippines as may be required by custom and usage. The
President shall have custody of the Great Seal.
CHAPTER 5
OPERATION AND EFFECT OF LAWS
Section 18. When Laws Take Effect. - Laws shall take effect after
fifteen (15) days following the completion of their publication in the
Official Gazette or in a newspaper of general circulation, unless it is
otherwise provided.
CHAPTER 6
OFFICIAL GAZETTE
CHAPTER 7
REGULAR HOLIDAYS AND NATIONWIDE SPECIAL DAYS
(A)
Regular Holidays
January 1
Maundy Thursday
Movable date
Good Friday
Movable date
April 9
Labor Day
May 1
Independence Day
June 12
Bonifacio Day
November 30
Christmas Day
December 25
Rizal Day
December 30
(B)
November 1
December 31
(2) The terms "legal or regular holiday" and "special holiday", as used
in laws, orders, rules and regulations or other issuances shall be
referred to as "regular holiday" and "special day", respectively.
lawphi1.net
Section 27. Local Special Days. - The President may proclaim any
local special day for a particular date, group or place.
Section 28. Pretermission of Holiday. - Where the day, or the last day,
for doing any act required or permitted by law falls on a regular
holiday or special day, the act may be done on the next succeeding
business day. lawphi1.net
CHAPTER 8
LEGAL WEIGHTS MEASURES AND PERIOD
CHAPTER 9
GENERAL PRINCIPLES GOVERNING PUBLIC OFFICERS
(1) A public officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a clear showing of
bad faith, malice or gross negligence.
(2) Any public officer who, without just cause, neglects to perform a
duty within a period fixed by law or regulation, or within a reasonable
period if none is fixed, shall be liable for damages to the private party
concerned without prejudice to such other liability as may be
prescribed by law.
CHAPTER 10
OFFICIAL OATHS
Section 40. Oaths of Office for Public Officers and Employees. - All
public officers and employees of the government including every
member of the armed forces shall, before entering upon the
discharge of his duties, take an oath or affirmation to uphold and
defend the Constitution; that he will bear true faith and allegiance to
it; obey the laws, legal orders and decrees promulgated by the duly
constituted authorities; will well and faithfully discharge to the best of
his ability the duties of the office or position upon which he is about to
enter; and that he voluntarily assumes the obligation imposed by his
oath of office, without mental reservation or purpose of evasion.
Copies of the oath shall be deposited with the Civil Service
Commission and the National Archives.
CHAPTER 11
OFFICIAL REPORTS
CHAPTER 12
PUBLIC CONTRACTS AND CONVEYANCES
(1) For property belonging to and titled in the name of the Republic of
the Philippines, by the President, unless the authority therefor is
expressly vested by law in another officer.
(2) For property belonging to the Republic of the Philippines but titled
in the name of any political subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or
instrumentality.
BOOK II
CHAPTER 1
BASIC PRINCIPLES AND POLICIES
(2) The State values the dignity of every human person and
guarantees full respect for human rights.
(3) Civilian authority is, at all times, supreme over the military.
(7) The right of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by law,
facilitate the establishment of adequate consultation mechanisms.
(8) The powers expressly vested in any branch of the Government
shall not be exercised by, nor delegated to, any other branch of the
Government, except to the extent authorized by the Constitution.
CHAPTER 2
LEGISLATIVE POWER
CHAPTER 4
JUDICIAL POWER
Section 16. Judicial Power. - The judicial power shall be vested in one
(1) Supreme Court, and in such lower courts as may be established
by law. Such lower courts include the Court of Appeals,
Sandiganbayan, Court of Tax Appeals, Regional Trial Courts, Shari's
District Courts, Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, and Shari'a Circuit Courts and they
shall continue to exercise their respective jurisdiction until otherwise
provided by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and, in cases prescribed by law, 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.
(b) All cases involving the legality of any tax, impost, assessment, or
toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio
of the Council and shall keep a record of its proceedings.
(4) The regular Members of the Council shall receive such
emoluments as may be determined by the Supreme Court. The
Supreme Court shall provide in its annual budget the appropriations
for the Council.
For the lower courts, the President shall issue the appointments
within ninety (90) days from the submission of the list.
CHAPTER 5
CONSTITUTIONAL COMMISSIONS
CHAPTER 6
OTHER BODIES
BOOK III
Title I
POWERS OF THE PRESIDENT
CHAPTER 1
POWER OF CONTROL
CHAPTER 2
ORDINANCE POWER
CHAPTER 3
POWER OVER ALIENS
CHAPTER 4
POWERS OF EMINENT DOMAIN, ESCHEAT, LAND
RESERVATION AND RECOVERY OF ILL-GOTTEN WEALTH
(1) The President shall have the power to reserve for settlement or
public use, and for specific public purposes, any of the lands of the
public domain, the use of which is not otherwise directed by law. The
reserved land shall thereafter remain subject to the specific public
purpose indicated until otherwise provided by law or proclamation;
(2) He shall also have the power to reserve from sale or other
disposition and for specific public uses or purposes, any land
belonging to the private domain of the Government, or any of the
Friar Lands, the use of which is not otherwise directed by law, and
thereafter such land shall be used for the purposes specified by such
proclamation until otherwise provided by law.
Section 15. Power over Ill-gotten Wealth. - The President shall direct
the Solicitor General to institute proceedings to recover properties
unlawfully acquired by public officials or employees, from them or
from their nominees or transferees.
Within the period fixed in, or any extension thereof authorized by, the
Constitution, the President shall have the authority to recover ill-
gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through orders
of sequestration or freezing of assets or accounts.
CHAPTER 5
POWER OF APPOINTMENT
CHAPTER 6
GENERAL SUPERVISION OVER LOCAL GOVERNMENTS
CHAPTER 7
OTHER POWERS
Title II
ORGANIZATION
CHAPTER 8
ORGANIZATION OF THE OFFICE OF THE PRESIDENT
Section 21. Organization. - The Office of the President shall consist of
the Office of the President Proper and the agencies under it.
(1) The Office of the President Proper shall consist of the Private
Office, the Executive Office, the Common Staff Support System, and
the Presidential Special Assistants/Advisers System;
(3) The Common Staff Support System embraces the offices or units
under the general categories of development and management,
general government administration and internal administration; and
Section 23. The Agencies under the Office of the President. - The
agencies under the Office of the President refer to those offices
placed under the chairmanship of the President, those under the
supervision and control of the President, those under the
administrative supervision of the Office of the President, those
attached to it for policy and program coordination, and those that are
not placed by law or order creating them under any specific
department.
Title III
FUNCTIONS
CHAPTER 9
FUNCTIONS OF THE DIFFERENT OFFICES IN THE OFFICE OF
THE PRESIDENT PROPER
A - PRIVATE OFFICE
Section 24. Functions of the Private Office. - The Private Office shall
provide direct services to the President and shall for this purpose
attend to functions and matters that are personal or which pertain to
the First Family.
(3) Decide, for and in behalf of the President, matters not requiring
personal presidential attention;
(4) Exercise supervision and control over the various units in the
Office of the President Proper including their internal administrative
requirements;
(16) Provide secretarial and clerical services for the President, the
Cabinet, the Council of State, and other advisory bodies to the
President
(1) The Cabinet Secretariat which shall assist the President in the
establishment of agenda topics for the Cabinet deliberation, or
facilitate the discussion of cabinet meetings. It shall have such
organization, powers and functions as are prescribed by law;
(2) Transfer any function under the Office of the President to any
other Department or Agency as well as transfer functions to the Office
of the President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other departments or agencies.
BOOK IV
CHAPTER 1
THE DEPARTMENTS
(4) In the absence of special provisions, the major staff units of each
department shall be the services which shall include: the Planning
Service, the Financial and Management Service, the Administrative
Service, and when necessary, the Technical and Legal Services.
CHAPTER 2
SECRETARIES, UNDERSECRETARIES, AND ASSISTANT
SECRETARIES
(2) Establish the policies and standards for the operation of the
Department pursuant to the approved programs of governments;
(2) Oversee all the operational activities of the department for which
he shall be responsible to the Secretary;
CHAPTER 3
DEPARTMENT SERVICES
CHAPTER 4
BUREAUS
(2) Each bureau shall be headed by a Director who may have one or
more Assistant Directors as provided by law; and
(3) Each bureau may have as many divisions as are provided by law
for the economical, efficient and effective performance of its
functions.
(a) Advise and assist the Office of the Secretary on matters pertaining
to the Bureau's area of specialization;
(3) The staff bureau shall avail itself of the planning, financial and
administrative services in the department proper. The bureau may
have a separate administrative division, if circumstances so warrant.
(a) Exercise supervision and control over all division and other units,
including regional offices, under the bureau;
(b) Establish policies and standards for the operations of the bureau
pursuant to the plans and programs of the department;
CHAPTER 5
FIELD OFFICES
(4) Appoint personnel to positions in the first level and casual and
seasonal employees; and exercise disciplinary actions over them in
accordance with the Civil Service Law;
(6) Prepare and submit budget proposals for the region to the central
office, administer the budget of the regional office, authorize
disbursement of funds pursuant to approved financial and work
programs, and administer the budget control machinery in the region;
(1) The head of each bureau or office shall, consistent with law, rules
and regulations, prescribe the form and fix the amount of all bonds
executed by private parties to the government under the laws
pertaining to his bureau or office. He shall pass on the sufficiency of
the security and retain possession of the bond.
(2) When it appears that any such bond is insufficient, the head may
require additional security. He may withdraw the privilege secured by
the bond upon failure of the party to give additional security within the
period fixed in the notice, but such an action shall be without
prejudice to the liability of any person or property already obligated.
(1) The head of a bureau or office shall prescribe forms and issue
circulars or orders to secure the harmonious and efficient
administration of his bureau or office and to carry into full effect the
laws relating to matters within his jurisdiction. Penalties shall not be
prescribed in any circular or order for its violation, except as
expressly allowed by law;
(2) Heads of bureaus or offices are authorized to issue orders
regarding the administration of their internal affairs for the guidance of
or compliance by their officers and employees;
(4) Issuances under paragraphs (2) and (3) hereof shall not require,
for their effectivity, approval by the Secretary or other authority.
CHAPTER 7
ADMINISTRATIVE RELATIONSHIP
(b) Such authority shall not, however, extend to: (1) appointments
and other personnel actions in accordance with the decentralization
of personnel functions under the Code, except appeal is made from
an action of the appointing authority, in which case the appeal shall
be initially sent to the department or its equivalent, subject to appeal
in accordance with law; (2) contracts entered into by the agency in
the pursuit of its objectives, the review of which and other procedures
related thereto shall be governed by appropriate laws, rules and
regulations; and (3) the power to review, reverse, revise, or modify
the decisions of regulatory agencies in the exercise of their regulatory
or quasi-judicial functions; and
CHAPTER 8
SUPERVISION AND CONTROL
CHAPTER 9
RELATIONSHIPS OF GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS AND REGULATORY AGENCIES TO THE
DEPARTMENT
(2) The heads of regulatory agencies shall submit annually, for the
approval of the Secretary concerned, their budgets and work plans
which shall be the basis of their day-to-day operations; and
CHAPTER 11
ADMINISTRATIVE ISSUANCES
CHAPTER 12
MISCELLANEOUS RECEIPTS
(1) For services required by law to be rendered for a fee, for supplies
furnished, or articles of any kind sold to other divisions of the
government or to any person, the head of bureau, office or agency
may, upon approval of the Secretary charge and collect the cost of
the service, supplies, or articles or other rate in excess of cost
prescribed by law or approved by the same authority. For local
governments, the rate, except where otherwise prescribed by law,
shall be affixed at cost or at such other reasonable rate in excess of
cost by the boards or councils concerned;
(2) The officer authorized to fix the amount to be paid for service
rendered and supplies or articles furnished or sold may recommend
that the whole or part of any sum so paid be refunded, upon approval
of the Commission on Audit.
CHAPTER 13
CONTRACTS
a.
Secretary of Public Works and Highways
P100 Mil.
P10 Mil.
b.
100 Mil.
10 Mil.
c.
100 Mil.
2 Mil.
d.
50 Mil.
5 Mil.
e.
7.5 Mil.
1 Mil.
CHAPTER 14
CONTROVERSIES AMONG GOVERNMENT OFFICES AND
CORPORATIONS
(2) The Secretary of Justice, in all other cases not falling under
paragraph (1).
FOREIGN AFFAIRS
CHAPTER 1
GENERAL PROVISIONS
(11) Monitor and analyze events in other countries and report them,
as appropriate, to the President and other government agencies;
CHAPTER 2
DEPARTMENT PROPER
Section 5. Offices Under the Direct Supervision of the Secretary. -
The Secretary shall exercise direct supervision over the following:
(d) Develop its own policies, and rules, program of activities, core
staff and consultants, administrative structure, operating systems and
resources, in order to enable it to accomplish competently its
activities.
(a) Office of Asian and Pacific Affairs: Japan and Northeast Asia,
China, Central Asia, Southeast Asia, South Asia and Pacific
countries;
(b) Office of Middle East and African Affairs: the Gulf States, Middle
East and North Africa, West Africa and East Africa;
CHAPTER 3
DEPARTMENT SERVICES
Section 10. Office of the Legal Adviser. - The Office of the Legal
Adviser shall be headed by a Legal Adviser, who shall be a career
Chief of Mission. However, the Legal Adviser may be appointed by
the President, upon the recommendation of the Secretary, from
outside the career service, in which case he shall have the
assimilated rank of a Chief of Mission. His term shall be co-terminus
with the tenure of the Secretary, unless sooner terminated, and he is
not eligible for foreign assignment. The Legal Adviser shall provide
legal advice and services to the Department.
(1) Assist the Secretary on all matters regarding data banking and
information retrieval;
(3) Establish, develop and maintain both domestic and foreign service
communications systems, including efficient flow systems for all
correspondence between and among all Department units;
(4) Establish, develop and maintain the records system of the entire
Department;
Section 13. Office of Protocol, State and Official Visits. - The Office of
Protocol, State and Official Visits shall coordinate preparations for
state visits, the reception of Chiefs of State, heads of Government,
the highest foreign dignitaries visiting the Philippines, as well as
official visits of Philippine officials abroad, as may be determined by
the President. It shall also be responsible for handling all activities of
the Department concerning protocol, ceremonials and socials, the
proper observance and enforcement of formalities, courtesies,
facilities, immunities and privileges under the Vienna Convention on
Diplomatic Relations and the Vienna Convention on Consular
Relations, and other applicable conventions and agreements.
CHAPTER 5
BOARD OF FOREIGN SERVICE EXAMINERS
CHAPTER 6
ATTACHED AGENCIES
Section 19. Attached Agencies. - The Law of the Sea Secretariat, the
Inter-Agency Technical Committee on Economic, Scientific and
Technical Cooperation with Socialist Countries (SOCCOM), the Inter-
Agency Technical Committee on Technical Cooperation Among
Developing Countries (IATC-TCDC), the Permanent Inter-Agency
Technical Committee on ESCAP Matters (PITCEM), and other
agencies attached to the Department shall continue to operate and
function in accordance with their respective charters or laws creating
them, except as otherwise provided in this Code.
CHAPTER 7
THE FOREIGN SERVICE
CHAPTER 8
ATTACHES AND REPRESENTATIVES
In the event of the actual need for more than one attache, as
determined by the department or agency in consultation with the
Department of Foreign Affairs, the succeeding attache shall be
accredited as assistant attache.
(3) The assimilated ranks are for purposes of compensation only and
shall not confer diplomatic rank for purposes of protocol. Civil
attaches shall always rank after the lowest ranking Foreign Service
officer in the post.
CHAPTER 9
PERSONNEL
(2) Counsellors
(3) Foreign Service Officers
Diplomatic Service
Consular
Class I
Consul
Class II
Consul
Class III
Consul
Class IV
Vice-Consul
CHAPTER 10
APPOINTMENTS, COMPENSATION AND BENEFITS
CHAPTER 11
PROMOTIONS
Section 39. Merit Promotion System. - The Board of the Foreign
Service shall establish a merit promotion system for all officers and
employees of the Department.
(2) For promotion to Chief of Mission Class II, the candidate must
have served as a Foreign Service Officer Class I and rendered
continuous service as Foreign Service Officer for at least ten years;
(4) For promotion to Foreign Service Officer Class II, the candidate
must have served as Foreign Service Officer Class III, and rendered
continuous service as Foreign Service Officer for at least six years;
(5) For promotion to Foreign Service Officer Class III, the candidate
must have rendered continuous service as a Foreign Service Officer
Class IV for at least two years.
(1) Promotions of Foreign Service Officers from one class to the next
higher class shall be made by the President upon the
recommendation of the Secretary. All promotions shall be to the
lowest grade of the class.
CHAPTER 12
ASSIGNMENTS AND TRANSFERS
(1) The tour of duty of a Foreign Service Officer at any post shall be
four (4) years commencing on the date of his arrival at the post, after
which he shall be transferred to another post;
(4) No Foreign Service Officer may serve more than four (4)
consecutive years in the home office, except when designated as
Secretary or Undersecretary.
CHAPTER 13
PASSPORT
Section 54. Fees. - The Secretary shall prescribe uniform fees for the
issuance, extension and amendment of passports, and such other
services that may be rendered by the Department relating to
passports. However, no fee shall be collected for the issuance of
passports to government officials proceeding abroad in the discharge
of their official duties attested by regular travel orders or for those
issued to immediate members of their families on official travel.
CHAPTER 14
MISCELLANEOUS PROVISIONS
Title II
FINANCE
CHAPTER 1
GENERAL PROVISIONS
CHAPTER 2
DEPARTMENT PROPER
CHAPTER 3
DEPARTMENT SERVICES
Section 8. Policy Development and Management Services Group. -
The Policy Development and Management Services Group, which
shall be headed by an Undersecretary, shall consist of the following:
(2) Formulate policies, plans and procedures for data control and
systems management;
(3) Act as the central repository of existing and future computer files;
and
(2) Provide the operating Bureaus and Offices with the general
framework for rendering direct assistance to the general public;
Section 14. Legal Office. - The Legal Office shall have the following
functions:
CHAPTER 4
BUREAUS
(5) Investigate, hear and file, upon clearance by the Secretary, anti-
graft and corruption cases against personnel of the Department and
its constituent units; and
(2) Exercise duly delegated police powers for the proper performance
of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(3) Exercise police authority for the enforcement of tariff and customs
laws;
(4) Prevent and suppress smuggling, pilferage and all other economic
frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails, and the
clearance of vessels and aircrafts in all ports of entry;
(7) Prevent and prosecute smuggling and other illegal activities in all
ports under its jurisdiction;
(b) Conduct internal inquiry and investigation which may serve as the
basis for prosecution;
(a) Collect duties, taxes, fees, charges, penalties and fines accruing
to the Government under the Tariff and Customs Code and related
laws;
(c) Examine goods, assess duties, fees, charges, penalties and fines
accruing to the Government under the Tariff and Customs Code and
other related laws;
(f) Supervise all import and export cargoes landed and/or stored in
piers, airports, terminal facilities, yards and freight stations;
(6) Manage, control and service public debts from domestic or foreign
sources;
(f) Regional Offices which shall have under their supervision all
provincial offices and shall be under the direct control and supervision
of the National Treasurer.
(3) Develop and promote plans and programs for the improvement of
resource management systems, collection enforcement mechanisms,
and credit utilization schemes at the local levels;
Section 36. Financial and Fiscal Policy Planning. - The Financial and
Fiscal Policy and Planning Office, which shall be headed by a
Director who shall be appointed by the President upon the
recommendation of the Secretary, shall have the following functions:
(2) Monitor and review the implementation of such financial and fiscal
plans in relation to recent developments in the economy;
CHAPTER 5
REGIONAL OFFICES
CHAPTER 6
ATTACHED AGENCIES
Title III
JUSTICE
CHAPTER 1
GENERAL PROVISIONS
Section 7. Legal Staff . - The Legal Staff shall have the following
functions:
(2) Prepare and finally act for and in behalf of the Secretary on all
queries and/or requests for legal advice or guidance coming from
private parties and minor officials and employees of the government;
(2) Implement the provisions of laws, executive orders and rules, and
carry out the policies, plans, programs and projects of the
Department relative to the investigation and prosecution of criminal
cases;
(3) Assist the Secretary in exercising supervision and control over the
National Prosecution Service as constituted under P. D. No. 1275
and/or otherwise hereinafter provided; and
CHAPTER 3
OFFICE OF THE GOVERNMENT CORPORATE COUNSEL
CHAPTER 4
NATIONAL BUREAU OF INVESTIGATION
Section 11. National Bureau of Investigation. - The National Bureau of
Investigation (NBI) with all its duly authorized constituent units
including its regional and district offices and rehabilitation center,
shall continue to perform the powers and functions as are now vested
in it under the existing law and such additional functions as may
hereafter be provided by law.
Section 12. The NBI Director and Other Officials. - The NBI shall be
headed by a Director assisted by an Assistant Director and five (5)
Deputy Directors, for Intelligence, Investigation, Technical,
Administrative and Comptroller Services, respectively.
CHAPTER 5
PUBLIC ATTORNEY'S OFFICE
(1) Office of the Chief Public Attorney and two (2) Deputy Chief Public
Attorneys;
(2) Five (5) line divisions in the Central Office, namely: Administrative,
Financial and Management, Special and Appealed Cases, Legal
Research and Statistics, and Field Services Divisions; and
Section 16. The Chief Public Attorney and Other PAO Officials. - The
PAO shall be headed by a Chief Public Attorney and shall be assisted
by two (2) Deputy Chief Public Attorneys. Each PAO Regional Office
established in each of the administrative regions of the country shall
be headed by a Regional Public Attorney who shall be assisted by an
Assistant Regional Public Attorney.
CHAPTER 6
BOARD OF PARDONS AND PAROLE
The Board Secretary shall prepare and keep the minutes of all the
board sessions in a book of records kept for the purpose, as well as
all the resolutions and recommendations of the Board on all actions
involving parole, pardons and executive clemency to the President;
authenticate and/or attest all minutes, resolutions and
recommendations of the Board; prepare and serve all notices of
board meetings or sessions to the members of the Board; prepare an
annual report of all resolutions and recommendations for parole or
executive clemency and other reports that the Department may
require. He shall also perform such other functions as the Board may
from time to time assign to him.
Section 20. Board Meetings. - The Board shall meet regularly every
week, or as the Board may direct, or upon call by the
Chairman/Secretary. The members shall act only as a Board, and
every decision of the majority shall be valid as an act of the Board,
provided, that the Board may direct a Board member to prepare and
submit a report involving any application for parole, pardon or any
request for executive clemency for appropriate action by the Board.
CHAPTER 7
PAROLE AND PROBATION ADMINISTRATION
The Board and the Administration shall jointly determine the staff
complement of the Technical Service.
CHAPTER 8
BUREAU OF CORRECTIONS
The Bureau shall carry out its functions through its divisions and its
seven (7) Penal institutions namely - New Bilibid Prisons,
Correctional Institution for Women, Iwahig, Davao, San Ramon and
Sablayan Prisons and Penal Farms and the Leyte Regional Prisons.
CHAPTER 9
LAND REGISTRATION AUTHORITY
(4) The Registry of Deeds of Makati shall have jurisdiction over the
municipalities of Makati and Muntinlupa.
CHAPTER 10
BUREAU OF IMMIGRATION
CHAPTER 11
COMMISSION ON THE SETTLEMENT OF LAND PROBLEMS
(1) Represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government and its
officers in the Supreme Court, the Court of Appeals, and all other
courts or tribunals in all civil actions and special proceedings in which
the Government or any officer thereof in his official capacity is a
party.
(2) Investigate, initiate court action, or in any manner proceed against
any person, corporation or firm for the enforcement of any contract,
bond, guarantee, mortgage, pledge or other collateral executed in
favor of the Government. Where proceedings are to be conducted
outside of the Philippines the Solicitor General may employ counsel
to assist in the discharge of the aforementioned responsibilities.
(3) Appear in any court in any action involving the validity of any
treaty, law, executive order or proclamation, rule or regulation when
in his judgment his intervention is necessary or when requested by
the Court.
(11) Act and represent the Republic and/or the people before any
court, tribunal, body or commission in any matter, action or
proceeding which, in his opinion, affects the welfare of the people as
the ends of justice may require; and
Title IV
AGRICULTURE
CHAPTER 1
GENERAL PROVISIONS
(3) Promulgate and enforce all laws, rules and regulations governing
the conservation and proper utilization of agricultural and fishery
resources;
CHAPTER 2
DEPARTMENT PROPER
(5) The Assistant Secretary assigned to the Support Group shall take
charge of providing staff support services in finance, administration,
and management. This shall be composed of the Financial and
Management Services, the Legal Services, and the Administrative
Services;
CHAPTER 3
DEPARTMENT SERVICES
Section 14. Legal Service. - The Legal Service shall handle the legal
requirements including those pertaining to the quasi-judicial and
regulatory functions of the Department Proper and its Bureaus.
CHAPTER 4
BUREAUS AND OFFICES
(5) For its own sector, recommend plans, programs, policies, rules
and regulations to the Secretary and provide technical assistance in
the implementation of the same.
(4) For its own sector, recommend plans, programs, policies, rules
and regulations to the Secretary and provide technical assistance in
the implementation of the same.
Section 20. Bureau of Fisheries and Aquatic Resources. - The Bureau
of Fisheries and Aquatic Resources shall:
(4) For its own sector, recommend plans, programs, policies, rules
and regulations to the Secretary and provide technical assistance in
the implementation of the same.
(2) Formulate measures and guidelines for effective soil, land, and
water resource utilization, as well as soil conservation in croplands
and other agricultural areas;
(2) Ensure that training programs address the real needs of the
agricultural sectors; and
(3) Ensure that the research results are communicated to the farmers
through the appropriate training and extension activities.
CHAPTER 5
REGIONAL OFFICES
(2) Implement and enforce in its area the laws and policies, plans,
programs, projects, rules, and regulations issued by the Department
including plant and animal quarantine laws, rules and regulations;
Section 34. Powers and Duties and Plant Quarantine Officers. - The
Plant Quarantine Officers shall have authority to:
(2) Enter into and inspect any and all areas where plants, plant
products and other materials capable of harboring plant pests are
landed, stored or grown;
(1) All charges for storage, demurrage, cartage, labor and delays
incident to inspection, cost of disinfection or disinfestation and other
post-entry requirements shall be paid by the importer or exporter as
the case may be.
(1) The Regional Director concerned shall, with the approval of the
Secretary of Agriculture, promulgate rules and regulations governing
the collection of regulatory fees for inspection, certification, import
permits, commodity treatment and others, on commodities described
in this Chapter which shall constitute the revolving fund of the
national plant quarantine service.
(1) The Regional Directors and the other officials of the Department
who may be authorized by the Secretary of Agriculture, after proper
hearing, are hereby empowered to impose administrative fines for the
violation of and non-compliance with quarantine orders, rules and
regulations promulgated in accordance with this Chapter.
Section 43. Plant Quarantine Board. - For the purpose of carrying out
the provisions of this Chapter, there shall be a Plant Quarantine
Board which shall be composed of the Undersecretary of Agriculture
for Regional Operations as Chairman; the Director of Plant Industry,
as Vice-Chairman; and the following members: the Commissioner of
Customs, the General Manager of the Philippine Ports Authority, the
Director of Quarantine, the Director of Animal Industry, the
Postmaster General, the Administrator of the Philippine Coconut
Authority, the Director of Forest Development or their representatives,
the Chief of the Department Legal Service, the Chief of the Plant
Quarantine Section and the Chief of the Crop Protection Division of
the Bureau of Plant Industry, and a representative each from the
National Economic and Development Authority, the Central Bank of
the Philippines, and the Importers' and Exporters' Confederation, as
members.
Section 44. Duties of the Board. - The Plant Quarantine Board shall
act as the advisory body to assist the Secretary in formulating orders,
rules and regulations for the effective implementation of the
provisions of this Chapter.
Section 45. Board Meeting. - The Board shall meet once every
quarter or may call special meetings when necessary, provided that
such special meeting shall not be held more than four times annually.
CHAPTER 6
ATTACHED AGENCIES
Title V
CHAPTER 1
GENERAL PROVISIONS
(3) Ascertain that all public works plans and project implementation
designs are consistent with current standards and guidelines;
(5) Provide the works supervision function for all public works
constructions and ensure that actual construction is done in
accordance with approved government plans and specifications;
(9) Classify road and highways into national, regional, provincial, city,
municipal, and barangay roads and highways, based on objective
criteria it shall adopt; provide or authorize the conversion of roads
and highways from one category to another; and
CHAPTER 2
DEPARTMENT PROPER
CHAPTER 3
DEPARTMENT SERVICES
(3) Provide accurate and timely status and exception reports to the
Secretary;
(4) Generate monitoring reports for the President, the Cabinet, or for
any other purpose as required by the Secretary;
CHAPTER 4
THE BUREAU
CHAPTER 5
REGIONAL OFFICES
CHAPTER 6
ATTACHED AGENCIES
Title VI
CHAPTER 1
GENERAL PROVISIONS
(5) Foreign and locally assisted projects and other activities relative to
Subsections (1), (2), (3) and (4); and
CHAPTER 2
DEPARTMENT PROPER
(5) Legal and legislative affairs, and other attached agencies and
centers.
CHAPTER 3
DEPARTMENT SERVICES
CHAPTER 4
BOARD OF HIGHER EDUCATION
(1) Articulate the policy and support the framework for both public and
private post-secondary education;
CHAPTER 6
BUREAUS AND OFFICES
CHAPTER 7
REGIONAL OFFICES
CHAPTER 8
ATTACHED AGENCIES
CHAPTER 9
MISCELLANEOUS PROVISIONS
1) The school year for public and private schools shall consist of not
less than forty (40) weeks for the elementary and secondary levels,
and thirty-six (36) weeks for the college level or eighteen (18) weeks
a semester.
2) The opening date shall be fixed by the Secretary, but it shall not be
earlier than the first day of June nor later than the last day of July of
each year unless prevented by fortuitous events.
4) The dates established for the long school vacation shall not be
changed oftener than one every five (5) years without prior public
hearing properly advertised in a newspaper of general circulation or
announced by the school authorities concerned.
Section 26. School Sessions. - The regular daily sessions of all public
and private schools shall be held during the hours fixed by the
Secretary or his duly authorized representatives. Except in college,
no class sessions shall be held on Saturdays, Sundays, or holidays
unless to offset class sessions suspended by competent authority.
4) Failure to observe for the second time the said flag ceremony
shall, after notice and hearing, be a ground for the cancellation of the
recognition or the permit of the private educational institution
concerned.
Title VII
CHAPTER 1
GENERAL PROVISIONS
(3) The State shall regulate the relations between workers and
employers, recognizing the right of labor to its just share in the fruits
of production and the right of enterprises to reasonable returns on
investments, and to expansion and growth.
(4) Protect and promote the interest of every citizen desiring to work
locally or overseas by securing for him the most equitable terms and
conditions of employment, and by providing social and welfare
services;
(11) Provide and ensure the fair and expeditious settlement and
disposition of labor and industrial disputes through collective
bargaining, grievance machinery, conciliation, mediation, voluntary
arbitration, compulsory arbitration as may be provided by law, and
other modes that may be voluntarily agreed upon by the parties
concerned; and
CHAPTER 2
DEPARTMENT PROPER
CHAPTER 3
DEPARTMENT SERVICES
Section 13. Legal Service. - The Legal Service shall provide legal
advice and service to Department officers and employees; prepare
informative or clarificatory opinions on labor laws, rules and
regulations for uniform interpretation thereof; answer legal queries
from the public; assist the Office of the Solicitor General in suits
involving the Department or its officers or employees or act as their
principal counsel in all actions taken in their official capacity or other
causes before judicial or administrative bodies.
CHAPTER 4
BUREAUS
(7) Protect every child employed in the movie, television, radio and
entertainment industries against exploitation, improper influences,
hazards and other conditions or circumstances prejudicial to his
physical, mental, emotional, social and moral development.
Section 21. Institute for Labor Studies. - The Institute for Labor
Studies shall be attached to the Department of Labor and
Employment. For policy and program coordination and administrative
supervision, the Institute shall absorb the research and publication
functions of the Institute of Labor and Manpower Studies. The
Institute, to be headed by an Executive Director, assisted by a Deputy
Executive Director, shall have the following functions:
(6) Expand the scope of its research interests into other countries and
regions;
CHAPTER 5
REGIONAL OFFICES
CHAPTER 6
ATTACHED AGENCIES
Section 25. Attached Agencies. - The following agencies are attached
to the Department for policy and program coordination and
administrative supervision:
Title VIII
NATIONAL DEFENSE
Subtitle I
PRELIMINARY PROVISIONS
CHAPTER 1
NATIONAL DEFENSE POLICIES
(1) The prime duty of the Government is to serve and protect the
people. Government may call upon the people to defend the State
and, in fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.
(2) Civilian authority is, at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and the
State. Its goal is to secure the sovereignty of the State and the
integrity of the national territory.
CHAPTER 2
NATIONAL SECURITY COUNCIL
CHAPTER 3
NATIONAL INTELLIGENCE COORDINATING AGENCY
Subtitle II
CHAPTER 1
GENERAL PROVISIONS
CHAPTER 2
DEPARTMENT PROPER
Section 19. Office of the Secretary. - The Office of the Secretary shall
consist of the Secretary and his immediate staff as determined by
him.
(2) Oversee all the operational activities of the Department for which
he shall be responsible to the Secretary;
Section 22. The Service Staff . - The Service Staff shall be composed
of the Administrative Services Office, and Information Management
Office.
CHAPTER 3
GOVERNMENT ARSENAL
CHAPTER 4
OFFICE OF CIVIL DEFENSE
(1) The basic services of the AFP shall be composed of the Major
Services. Enlisted personnel of the standing force and the reserve
force must belong to one of the basic services.
CHAPTER 5
PHILIPPINE VETERANS AFFAIRS OFFICE
CHAPTER 6
ARMED FORCES OF THE PHILIPPINES
(1) Uphold the sovereignty, support the Constitution, and defend the
territory of the Republic of the Philippines against all enemies, foreign
and domestic;
(2) Promote and advance the national aims, goals, interests and
policies;
(3) Plan, organize, maintain, develop and deploy its regular and
citizen reserve forces for national security; and
(3) The Citizen Armed Force shall be composed of all reservists, and
officers and enlisted men on inactive status. All Able-bodied citizens
shall undergo military training, after which they shall become
reservists with appropriate ranks. All reservists in a particular locality
shall be organized into reserve geographical units subject to call and
mobilization as the need arises, individually or as a unit. The
Secretary of National Defense shall prescribe and implement a
continuing program of recruitment and training for the Citizen Armed
Force to enable it to respond to all types of threats to national
security.
CHAPTER 7
GENERAL HEADQUARTERS
Section 40. Functions. - The General Headquarters, AFP, shall:
(2) Prepare strategic plans and provide for the strategic direction of
the AFP, including the direction of operations of unified or specified
commands;
(5) Provide adequate, timely and reliable joint intelligence for use
within the Department;
(7) Review plans and programs of the Major Services and separate
units to determine their adequacy, feasibility and suitability for the
performance of their respective detailed plans;
(11) Prepare and submit to the Secretary of National Defense for his
consideration in the preparation of budgets and statements of military
requirements based upon strategic war plans, tasks, priority of tasks,
force requirements, and general strategic guidance for the
development of military force;
(1) The Chief of Staff, under the authority and direction of the
President and the Secretary of National Defense shall be responsible
for the development and execution of the national defense programs
and armed forces mission; and prescribe, in accordance with policies
of the Secretary of National Defense, the organization, powers,
functions and duties of the various staff, services, installations and
other units of the AFP.
(2) The President shall nominate and with the consent of the
Commission on Appointments, appoint the Chief of Staff from among
the general and flag officers of the basic services. He shall hold the
grade of general (Four-Star) and shall if eligible be retired in such a
grade, upon relief from his assignment.
(3) The tour of duty of the Chief of Staff shall not exceed three (3)
years. However, in times of war or other national emergency declared
by the Congress, the President may extend such tour of duty.
Section 44. The AFP General Staff . - The AFP General Staff shall
advise and assist the Chief of Staff in the performance of his
functions and in the accomplishment of the tasks of the General
Headquarters. It shall be headed by the Deputy Chief of Staff, who
shall be appointed by the Chief of Staff. The AFP General Staff shall
be a joint staff. The various General Staff Offices shall each be
headed by a Deputy Chief of Staff whose appointment and tenure
shall be determined by the Chief of Staff. The organization, functions
and duties of the General Staff shall be prescribed by the Chief of
Staff.
(a) Establish and organize staffs, offices and units in the General
Headquarters in addition to the Armed Forces General Staff, and
prescribe the titles, functions and duties of their members;
(c) Abolish the position of any Deputy Chief of Staff or any general
staff office and transfer or consolidate its functions and duties with
those of another Deputy Chief of Staff or General Staff Office
CHAPTER 8
MAJOR SERVICES
(1) Organize, train and equip forces for the conduct of prompt and
sustained operations on land;
(4) Organize, train and equip all army reserve units; and
Section 50. The Philippine Air Force. - The Philippine Air Force shall
be responsible for the air defense of the Philippines. It shall be
organized as prescribed by the Secretary of National Defense, upon
recommendation of the Chief of Staff.
(1) Organize, train, and equip forces for prompt and sustained air
operations for the defense of the Philippines;
(2) Organize, train, and equip for airlift, airborne and tactical air
operations unilaterally or in coordination with surface forces;
(4) Organize, train, and equip all air force reserve units; and
(2) Prepare the necessary naval units for the effective enforcement of
all applicable laws upon the Philippine seas and waters, the
prosecution of national defense plans and programs and armed
forces missions, including the expansion of a peacetime navy
component to meet any emergency;
(5) Organize, train and equip all naval reserve units; and
(b) Organize, retain, equip and prepare its forces for effective law
enforcement operations and police duties;
(3) When the constabulary forces in any area are unable to cope
effectively with violations of law, the Secretary of National Defense in
accordance with the policies or directives of the President, may
assign or detail commissioned officers and enlisted personnel of the
Army, Air Force, or Navy, to the Philippine Constabulary or any of its
subordinate units. The officers and enlisted personnel so assigned or
detailed shall have the authority and duties of peace officers and shall
be governed by the provisions of this section for the duration of their
assignment or detail.
CHAPTER 9
PHILIPPINE MILITARY ACADEMY
(3) The student body of the Academy shall be known as the Cadet
Corps of the Armed Forces of the Philippines (CC-AFP) and shall
have such strength as the Secretary of National Defense shall
determine upon the recommendation of the Chief of Staff, and within
the strength limited by the annual Appropriation Act.
CHAPTER 10
NATIONAL DEFENSE COLLEGE OF THE PHILIPPINES
(4) The College shall have an Academic Board to assist the President
discharge the following functions:
(5) All resource persons of the College including but not limited to
academic consultants, professors, lecturers, instructor, thesis
advisers, members of examining and evaluating panels, examiners,
correctors, and technicians who are regularly employed in the
Government shall, in addition to their salaries, be entitled to receive
honoraria, fees and other emoluments fixed by the Secretary of
National Defense.
(1) The College shall train and develop the skills and competence of
potential national defense leaders, civilian officials of the different
agencies and instrumentalities of the Government, and selected
executives from the private sector in the formulation and
implementation of national security policies, and for high command
and staff duty.
(2) The College shall have the power to confer the degree of Master
in National Security Administration (MNSA) upon all its students who
have satisfactorily completed the prescribed course of study.
(2) All civilian graduates who are holders of the degree of Master in
National Security Administration shall qualify for appointment to the
initial rank of Lieutenant Colonel in the reserve force of the Armed
Forces of the Philippines.
(3) Authority to use with honor the abbreviation MNSA after their
names is hereby given to all graduates of the regular course of the
College.
CHAPTER 11
INTEGRATED NATIONAL POLICE
CHAPTER 12
ATTACHED AGENCIES
Subtitle III
(1) The State shall establish and maintain one police force which
shall be national in scope and civilian in character, to be administered
and controlled by a national police commission and shall provide, by
law, the authority of local executives over the police units in their
jurisdiction.
(2) The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential
for the enjoyment by all the people of the blessings of democracy.
(3) Administer appropriate examinations for the police, fire and jail
services;
Title IX
HEALTH
CHAPTER 1
GENERAL PROVISIONS
(1) Define the national health policy and formulate and implement a
national health plan within the framework of the government's general
policies and plans, and present proposals to appropriate authorities
on national issues which have health implications;
(4) Administer all laws, rules and regulations in the field of health,
including quarantine laws and food and drug safety laws;
CHAPTER 2
DEPARTMENT PROPER
Section 10. The Staff Support Services. - The following Staff Support
Services shall undertake such staff services intended to assist the
Secretary in performing his functions;
(4) Internal Planning Service which shall provide the Department with
necessary services related to planning, programming and project
development;
(5) Foreign Assistance Coordination Service which shall provide staff
services related to the development, coordination, monitoring,
reporting and assessment of foreign assisted projects of the
Department.
(4) Coordinate the functions and activities of the units under their
authority with that of the Undersecretaries and regional health
directors;
CHAPTER 3
DEPARTMENT SERVICES
CHAPTER 4
OFFICES AND BUREAUS
Section 13. Office for Public Health Services. - The Office for Public
Health Services, headed by an Undersecretary, shall include ten (10)
staff services involved in policy formulation, standards development,
programs development, and program monitoring of disease control
and service delivery programs implemented by the field offices. The
Undersecretary for Public Health Services, who shall be supported by
an Assistant Secretary, shall supervise the following:
(1) Maternal and Child Health Services which shall formulate plans,
policies, programs, standards and techniques relative to maternal and
child health; provide consultative training and advisory services to
implementing agencies; and conduct studies and research related to
health services for mothers and children;
(2) Bureau of Food and Drugs which shall act as the policy
formulation and sector monitoring arm of the Secretary on matters
pertaining to foods, drugs, traditional medicines, cosmetics and
household products containing hazardous substances, and the
formulation of rules, regulations and standards in accordance with
Republic Act 3720 (1963), as amended by Executive Order No. 175,
s. 1987, and other pertinent laws for their proper enforcement;
prescribe general standards and guidelines with respect to the
veracity of nutritional and medicinal claims in the advertisement of
food, drugs and cosmetics in the various media, to monitor such
advertisements; advise the Department's field offices to call upon any
erring manufacturer, distributor, or advertiser to desist from such
inaccurate or misleading nutritional or medicinal claims in their
advertising; should such manufacturer, distributor, or advertiser
refuse or fail to obey the desistance order issued by the Bureau, he
shall be subject to the applicable penalties as may be prescribed by
law and regulations; the Bureau shall provide consultative, training
and advisory services to all agencies and organizations involved in
food and drug manufacturing and distribution with respect to assuring
safety and efficacy of food and drugs; conduct studies and research
related to food and drug safety; maintain a corps of specially trained
food and drugs inspectors for assignment to the various field offices
of the Department; while these inspectors shall be under the technical
supervision and guidance of the Bureau, they shall be under the
administrative supervision of the head of the field office to which they
shall be assigned, the latter being responsible for regulatory program
implementation within the geographic area of his jurisdiction;
CHAPTER 5
FIELD OFFICES
Section 16. Office for National Field Operations. - The Office for
National Field Operations, through an Executive Committee, shall
supervise the operations of the various Regional Field Offices and the
National Health Facilities, as enumerated in Section 17(3) and further
described in Sections 18, 19 and 20 hereof.
(2) Regional Health Office for the National Capital Region: Municipal
Health Offices of Makati, Mandaluyong, Pasig, Marikina, Las Piñas,
Muntinlupa, San Juan, Valenzuela, Navotas, Malabon, Parañaque,
Taguig, Pateros;
(2) Provide efficient and effective health and medical services to the
people;
Section 22. City Health Officers. - The City Health Officers and
Assistant City Health Officers shall be appointed by the Secretary.
Their compensation shall be paid out of national funds.
Title X
TRADE AND INDUSTRY
CHAPTER 1
GENERAL PROVISIONS
In pursuit of these goals, all sectors of the economy and all regions of
the country shall be given optimum opportunity to develop. Private
enterprises, including corporations, cooperatives, and similar
collective organizations shall be encouraged to broaden the base of
their ownership.
The State shall pursue a trade policy that serves the general welfare
and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity.
(11) Upgrade and develop the manufacture of local capital goods and
precision machinery components;
(13) Formulate country and product export strategies which will guide
the export promotion and development thrusts of the government;
and implement programs and activities geared towards the overseas
promotion of Philippine exports in overseas markets;
CHAPTER 2
DEPARTMENT PROPER
(2) The Office of Policy Research shall coordinate and help formulate
general trade and industry policies for the Department; evaluate the
effectiveness of trade and industry programs as such, as their
implementation by the Department's Line Operating Units; and
research on trade and industry issues for policy analysis and
formulation;
(4) The Office of Legal Affairs shall provide the Secretary with legal
advise on all policies, programs, and operational matters of the
Department, serve as Counsel for the Department in cases in which it
is a party; handle administrative cases against Department personnel
and submit recommendations pertaining thereto; and review
legislative proposals;
(12) There is hereby created in the Office of the Secretary the Office
of Special Concerns to attend to matters that require special
attention, whether involving a matter that crosses several functional
areas, demands urgent action, or otherwise necessitates, in the
Secretary's opinion, attention by a special group.
(1) Regional Offices. These are offices which shall be located in the
National Capital Region and each of the twelve (12) other
administrative regions of the country. They shall be operated and
maintained on a Department-wide basis, acting as implementing
arms in the regions under their jurisdiction, of the Department's
policies, programs, rules and regulations as well as those laws which
the Department is mandated to enforce.
(2) Line Corporate Agencies and Government Entities. These are the
government entities and the government-owned or controlled
corporations under the administrative supervision of the Department
which are deemed to be integral parts of the Department structure
notwithstanding their organizational form, and which perform a focal
and implemental role in the Department's programs for the
development of trade, industry and investments.
CHAPTER 3
OFFICE OF THE UNDERSECRETARY FOR DOMESTIC TRADE
CHAPTER 4
OFFICE OF THE UNDERSECRETARY FOR INTERNATIONAL
TRADE
(3) Foreign Trade Service Corps. This Corps shall assist Philippine
businessmen, producers, and exporters with marketing information,
project development support, and liaison with foreign government
agencies; develop marketing and commercial intelligence for
dissemination to Philippine businessmen through the Trade and
Investment Information Center; provide direct support to the
Department's overseas promotional programs; assist Philippine
businessmen handle trade complaints against foreign firms and
governments; support Department units in import and export
administration, monitoring of trade agreements, and investments
promotion; and be accountable for establishment of foreign
investment and export targets for their respective areas of
responsibility.
(4) Bonded Export Marketing Board. This Board shall promote the
establishment of bonded manufacturing and trading facilities for the
re-export of those products where a clear net value added may be
generated based on the emerging comparative advantage of the
Philippine export industry; study and analyze the international market
for specific products where the Philippines has or can develop a
comparative advantage; recommend to the Bureau of Customs the
licensing of bonded manufacturing facilities and monitor all bonded
manufacturing sites, with the objective of ensuring operational
efficiency; identify and designate sites where export bonded
manufacturing sites shall be located with a view of dispersal to the
regions; and initiate studies on the development and maintenance of
the country's competitive advantage in export products.
CHAPTER 5
OFFICE OF THE UNDERSECRETARY FOR INDUSTRY AND
INVESTMENTS
(4) Bureau of Import Services. This Bureau shall monitor import levels
and prices, particularly liberalized items; analyze and forecast import
levels; analyze and publish import return statistics; perform annual
reviews of the substantive components of the Philippine Tariff System
and submit recommendations thereon; perform such other functions
on import transactions as the President or the Central Bank of the
Philippines shall delegate or authorize; and ensure that the
Department's views on goods under the jurisdiction of other
Departments are taken into consideration.
CHAPTER 6
OFFICE OF THE UNDERSECRETARY FOR REGIONAL
OPERATIONS
CHAPTER 7
ATTACHED AGENCIES
(2) Garments and Textile Export Board. This Board, which shall be
supervised by the Undersecretary for International Trade, shall
oversee the implementation of the garment and textile agreements
between the Philippines and other countries, particularly garments
and textiles quotas; approve quota allocations and export
authorizations; issue export licenses and adopt appropriate measures
to expedite their processing; provide the necessary information and
statistics relating to the administration of garments and textiles export
quotas and the flow of garments and textiles exports for monitoring
purposes and for negotiations with other countries; implement rules
and regulations for the administration of all international textile
agreements entered into between the Philippines and importing
countries; and fix and collect reasonable fees for the issuance of
export quotas, export authorizations, export licenses, and other
related services, in accordance with the Department policies, rules
and regulations.
(7) The Center for International Trade Expositions and Missions, Inc.
is hereby merged with the Philippine Trade Exhibition Center. The
latter shall be the surviving entity and is hereby renamed "Center for
International Trade Expositions and Missions."
Title XI
AGRARIAN REFORM
CHAPTER 1
GENERAL PROVISIONS
(1) Implement laws, programs and policies for the acquisition and
distribution of all agricultural lands as provided by laws;
(10) Implement all agrarian reform laws and for the this purpose issue
subpoena, subpoena duces tecum, and writs of execution of its
orders, and decisions and other legal processes to ensure
compliance from all parties concerned for successful and expeditious
program implementation;
(11) Undertake land surveys on lands covered by agrarian reform,
and issue patents to farmers covered by agrarian reform, both on
private and public lands;
CHAPTER 2
DEPARTMENT PROPER
(2) Coordinate programs and projects within the DAR and with other
government agencies and farmer organizations when so delegated
by the Secretary;
CHAPTER 3
DEPARTMENT SERVICES
(1) Review, analyze and integrate submitted plans and programs and
special project proposals by Bureaus, services, and field offices and
determine if plans and programs are in accordance with priorities set
for budgetary support;
(2) Review, coordinate and integrate all recommendations for
reprogramming and revision of work programs of the Department to
support fund releases or requests;
(7) Maintain liaison with public and private development and planning
bodies, public and private; and
(4) Provide the major operating units of the Department with basic
equipment, supplies and materials including logical support;
CHAPTER 4
BUREAUS
Section 13. Bureau of Agrarian Legal Assistance. - The Bureau of
Agrarian Legal Assistance shall have the following functions:
(10) Advise and assist the Office of the Secretary and field offices in
agrarian legal matters;
(1) Draw up plans and programs of land surveys and determine which
land survey projects can be done by administration or by contract;
(4) Analyze and compile soil data and survey reports essential for the
production of soil maps and identify particular areas for soil research;
(3) Develop standards for the valuation of lands placed under the
agrarian reform program and formulate appropriate land
compensation schemes for affected landowners;
(1) Provide policy guidance and develop plans and programs for
effective and continuing information, education and promotional
activities of the Department;
(4) Integrate agrarian reform concepts into all levels of the national
education system;
(6) Develop project models such as but not limited to compact farms,
and other income generating projects, and undertake research and
pilot studies on these models and other innovative schemes in
coordination with field offices;
CHAPTER 5
REGIONAL AND DISTRICT OFFICES AND ATTACHED AGENCIES
(3) Prepare, submit, execute and control the budget for the region;
(7) Prepare and submit plans and programs for the region on:
d. legal services
(1) Set priorities, specific targets, schedules and deadlines for the
execution of approved plans, programs and projects on:
Title XII
LOCAL GOVERNMENT
CHAPTER 1
GENERAL PROVISIONS
CHAPTER 3
DEPARTMENT SERVICES
CHAPTER 4
BUREAUS AND OFFICES
(1) Advise and assist the Secretary in the exercise of the power of
general supervision of the President over local government units,
particularly in the formulation and implementation of national laws,
policies, and standards concerning local government operations and
their personnel;
(7) Assess information needs of the people through opinion polls and
surveys;
CHAPTER 5
REGIONAL AND FIELD OFFICES
CHAPTER 6
LEAGUES OF PROVINCES, CITIES AND MUNICIPALITIES
Section 19. Leagues of Provinces, Cities and Municipalities. - There is
hereby created the Leagues of Provinces, Cities and Municipalities.
Title XIII
TOURISM
CHAPTER 1
GENERAL PROVISIONS
(11) Set up and organize foreign field offices for the purpose of
overseeing all marketing and promotional activities and implementing
programs of the Department;
(14) Enlist the aid, assistance and support of any and all government
agencies, civil or military, in the implementation of the provisions of
laws pertaining to the Department or of its rules and regulations;
CHAPTER 2
DEPARTMENT PROPER
Section 5. Office of the Secretary. - The Office of the Secretary shall
consist of the Secretary and his immediate staff.
CHAPTER 3
DEPARTMENT SERVICES
Section 10. Legal Service. - The Legal Service shall provide the
Department with staff advice and assistance on all legal matters
affecting the Department and perform such other related functions as
may be assigned or delegated to it by the Secretary.
CHAPTER 4
BUREAUS AND OFFICES
Section 11. Bureau and Office Character and Head. - The Bureaus
and Offices shall be essentially staff in character, each of which shall
be headed by a Staff Director.
(1) Formulate plans and policies for the development of the tourism
industry, including but not limited to national tourism plans and the
identification of master physical plans for tourism zones within the
country;
(2) Undertake pilot tests for testing the viability and acceptability of
new tourism-related products and programs; and
(3) Encourage and promote joint undertakings with the private sector
of new tourism-related products and programs.
(1) Initiate and coordinate with all sectors, both government and
private, the development of the national tourism plans and policies;
(3) Enlist the assistance and support of any or all of the government
agencies in the implementation of the policies of the Department; and
CHAPTER 5
FOREIGN AND REGIONAL OFFICES
CHAPTER 6
ATTACHED AGENCIES
Title XIV
CHAPTER 1
GENERAL PROVISIONS
(1) The State shall ensure, for the benefit of the Filipino people, the
full exploration and development as well as the judicious disposition,
utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources, consistent with the necessity of maintaining a
sound ecological balance and protecting and enhancing the quality of
the environment and the objective of making the exploration,
development and utilization of such natural resources equitably
accessible to the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value system
that takes into account social and environmental cost implications
relative to the utilization, development and conservation of our natural
resources.
Section 2. Mandate. -
(1) Advise the President and the Congress on the enactment of laws
relative to the exploration, development, use, regulation and
conservation of the country's natural resources and the control of
pollution;
(4) Exercise supervision and control over forest lands, alienable and
disposable public lands, mineral resources and, in the process of
exercising such control, impose appropriate taxes, fees, charges,
rentals and any such form of levy and collect such revenues for the
exploration, development, utilization or gathering of such resources;
(6) Promote proper and mutual consultation with the private sector on
matters involving natural resources exploration, development, use
and conservation;
(8) Issue licenses and permits for activities related to the use and
development of aquatic resources, treasure hunting, salvaging of
sunken vessels and other similar activities:
(18) Promulgate ambient and effluent standards for water and air
quality including the allowable levels of other pollutants and
radiations;
CHAPTER 2
THE DEPARTMENT PROPER
(4) Exercise supervision and control over all functions and activities of
the Department;
Section 11. Public Affairs Office. - The Public Affairs Office, under the
Office of the Secretary, shall be headed by a Director to be assisted
by an Assistant Director, and shall serve as the public information
arm of the Department. It shall be responsible for disseminating
information on natural resources development policies, plans,
programs and projects and respond to public queries related to the
development and conservation of natural resources.
CHAPTER 3
THE STAFF SECTORAL BUREAUS
(1) Recommend policies and programs for the efficient and effective
administration, surveys, management and disposition of alienable
and disposable lands of the public domain and other lands outside
the responsibilities of other government agencies, such as reclaimed
areas and other areas not needed for or are not being utilized for the
purposes for which they have been established;
Section 16. Mines and Geo-Sciences Bureau. - The Mines and Geo-
Sciences Bureau, to be headed by a Director and assisted by an
Assistant Director shall absorb the functions of the Bureau of Mines
and Geo-Sciences, Mineral Reservation Development Board, and the
Gold Mining Development Board which were abolished by Executive
Order No. 131, except line functions and powers thereof which are
transferred to the regional field offices.
(5) Formulate rules and regulations for the proper disposition of solid
wastes, toxic and hazardous substances;
It shall:
CHAPTER 4
THE DEPARTMENT FIELD OFFICES
Section 20. Field Offices of the Department. - The Field offices of the
Department are the Environmental and Natural Resources Regional
Offices in the thirteen (13) administrative regions of the country; the
Environment and Natural Resources Provincial Office in every
province, and the Community Office in every municipality, whenever
deemed necessary.
(1) Implement laws, policies, plans, programs, projects, and rules and
regulations of the Department to promote the sustainability and
productivity of natural resources, social equity in natural resource
utilization and environmental protection;
CHAPTER 5
ATTACHED AGENCIES AND CORPORATIONS
Title XV
CHAPTER 1
GENERAL PROVISIONS
(1) Formulate and recommend national policies and guidelines for the
preparation and implementation of integrated and comprehensive
transportation and communications systems at the national, regional
and local levels;
(4) Administer and enforce all laws, rules and regulations in the field
of transportation and communications;
(11) Establish and prescribe rules and regulations for the issuance of
certificates of public convenience for public land transportation
utilities, such as motor vehicles, trimobiles and railways;
(12) Establish and prescribe rules and regulations for the inspection
and registration of air and land transportation facilities, such as motor
vehicles, trimobiles, railways and aircraft;
(13) Establish and prescribe rules and regulations for the issuance of
licenses to qualified motor vehicle drivers, conductors and airmen;
CHAPTER 2
DEPARTMENT PROPER
(1) The Office of the Assistant Secretary for Administrative and Legal
Affairs composed of the Administrative Service and the Legal
Service;
(3) The Office of the Assistant Secretary for Planning and Project
Development composed of the Planning Service and the Project
Development Service; and
The line offices shall each have an Executive Director who shall
assist the respective Assistant Secretary in the implementation and
enforcement of the policies, programs and projects, and the pertinent
laws on their respective areas of responsibilities.
Section 10. Service Units in the Office of the Assistant Secretary for
Land Transportation. - There shall be two service units in the Office of
the Assistant Secretary for Land Transportation, namely:
(1) To hear and decide cases involving violations of laws, rules and
regulations governing land transportation and to impose fines and/or
penalties therefor; provided that violations resulting in damage to
property and/or physical injuries or violations constituting offenses
punishable under the Revised Penal Code and other penal laws shall
be under the jurisdiction of the regular courts;
(2) To order the impounding of motor vehicles and confiscation of
plates or the arrest of violators of laws, rules and regulations
governing land transportation;
CHAPTER 3
DEPARTMENT SERVICES
CHAPTER 4
REGIONAL OFFICES
Section 14. Regional Offices. - The Department shall have three (3)
Regional Offices in each of the administrative regions of the country:
the Regional Office for Land Transportation, the Regional Office for
Telecommunications and the Regional Office for Postal Services.
Each Regional Office shall be headed by a Regional Director to be
assisted by an Assistant Regional Director.
For such purposes, the Regional Offices shall have, within their
respective administrative regions, the following functions:
The Office of the Secretary shall have direct line supervision and
control over Regional Offices.
CHAPTER 5
REGULATORY BOARD
Section 15. Land Transportation Franchising and Regulatory Board. -
The quasi-judicial powers and functions with respect to land
transportation shall be exercised through the Land Transportation
and Regulatory Board, hereinafter referred to as the "Board".
Section 17. Executive Director and Support Staff of the Board. - The
Board shall have an Executive Director who shall also be appointed
by the President of the Philippines upon the recommendation of the
Secretary of Transportation and Communications. He shall have the
rank, salary and privileges of a Department Service Chief. He shall
assist the Board in the performance of its powers and functions.
Section 18. Supervision and Control Over the Board. - The Secretary
of Transportation and Communications, through his duly designated
Undersecretary, shall exercise administrative supervision and control
over the Land Transportation Franchising and Regulatory Board.
(5) Punish for contempt of the Board, both direct and indirect, in
accordance with the pertinent provisions of, and the penalties
prescribed by, the Rules of Court;
(10) Fix, impose and collect, and periodically review and adjust,
reasonable fees and other related charges for services rendered;
CHAPTER 6
ATTACHED AGENCIES
Title XVI
CHAPTER 1
GENERAL PROVISIONS
Section 1. Declaration of Policy. - The State is committed to the
care, protection, and rehabilitation of individuals, families and
communities which have the least in life and need social welfare
assistance and social work intervention to restore their normal
functioning and enable them to participate in community affairs.
(1) Care for, protect and rehabilitate the physically and mentally
handicapped and socially disabled constituents, for effective social
functioning;
(6) Promote, support and coordinate networks and facilities for the
identification and delivery of appropriate interventions to its welfare
constituents;
CHAPTER 2
DEPARTMENT PROPER
(3) Supervise the Planning and Monitoring Service and the Legal
Service, and assist the Undersecretary and the Secretary in matters
pertaining to regional or field operations.
CHAPTER 3
DEPARTMENT SERVICES
(2) The Financial Service shall provide the Department with services
relating to budget, collection, disbursement, and other financial
matters;
(5) The Legal Service shall provide the Department with services on
legal matters, especially on proposed legislations;
(6) The Public Affairs and Liaison Service in the Office of the
Secretary shall provide public information services and publications
as well as coordinate and mobilize volunteers, non-governmental
organizations and cause-oriented groups in partnership with the
Department.
CHAPTER 4
BUREAUS AND OFFICES
(7) Formulate the substantive content of, and assist in the orientation
and training on, the bureaus' programs, services, strategies,
procedures, methods and guidelines;
CHAPTER 5
REGIONAL OFFICES
(1) Provide within the region efficient and effective services to its
constituents; and for such purposes, establish, operate, promote and
support, at the minimum, the following welfare facilities:
(3) Secure all pertinent feedback and information from field units as
well as appropriate department/agency units, particularly local
government units, and communicate the same regularly to the
Regional Office;
CHAPTER 7
MUNICIPAL/DISTRICT OFFICES
CHAPTER 8
ATTACHED AGENCIES
CHAPTER 9
FUND DRIVES
CHAPTER 10
SOCIAL WELFARE AGENCIES AND SERVICES
(2) Before any social work agency shall be duly registered, the
following requirements must have been complied with:
(d) The applicant keeps a social work record of all cases and welfare
activities handled by it.
(2) The work of all registered and licensed child welfare agencies
shall be supervised and coordinated by the Department.
(3) The Department may, after notice and hearing, suspend or revoke
the license of a child welfare agency on any of the following grounds:
(f) That said agency has by any act or commission shown its
incompetence or unworthiness to continue acting as a child welfare
agency. During the period of suspension, the agency concerned shall
not accept or admit any additional children. In any case, the
Department shall make such order as to the custody of the children
under the care of such agency as the circumstances may warrant.
The suspension may last for as long as the agency has not complied
with any order of the Department to remove or remedy the conditions
which have given rise to the suspension. The aggrieved agency may
appeal the suspension or revocation in a proper court action. In such
a case, the court shall within fifteen (15) days from the filing of the
Department's answer, conduct a hearing and decide the case, either
by lifting the suspension, or continuing it for such period of time as it
may order, or by revoking the license of the agency where the
Department has proven the revocation to be justified.
Section 26. Foster Homes. - No foster home, day care center and
other substitute parental arrangement shall operate unless it is first
registered with and licensed by the Department.
Title XVII
CHAPTER 1
GENERAL PROVISIONS
Section 1. Declaration of Policy. - The national budget shall be
formulated and implemented as an instrument of national
development, reflective of national objectives and plans; supportive of
and consistent with the socio-economic development plans and
oriented towards the achievement of explicit objectives and expected
results, to ensure that the utilization of funds and operations of
government entities are conducted effectively; formulated within the
context of a regionalized governmental structure and within the
totality of revenues and other receipts, expenditures and borrowings
of all levels of government and of government-owned or controlled
corporations; and prepared within the context of the national long-
term plans and budget programs of the Government.
CHAPTER 2
DEPARTMENT PROPER
CHAPTER 3
DEPARTMENT SERVICES
(1) The Systems and Procedures Bureau which shall review and
design the management reporting systems, review and evaluate the
applicability and economics of computerization, purchasing/inventory
systems, formulate measures on internal controls to ensure accuracy,
integrity and reliability of records systems, and develop a system of
controls for capital operational and cash budgeting;
(1) The Legislative Services which shall provide legal advice and
service to the Department Officers and employees, review legislative
proposals and provide clarificatory opinions on budget laws.
CHAPTER 4
BUREAUS
(4) Budget Planning Bureau which shall assist the Secretary in the
preparation and management of fiscal policies and plans for budget
coordination, conduct studies on economic trends and factors
affecting government revenues, expenditures and borrowings, and
shall collaborate with the Office of the President, Department of
Finance, Central Bank, National Economic and Development
Authority, and other agencies in the formulation of financial plans.
(5) Foreign Assisted Projects Bureau which shall review and evaluate
foreign assisted projects to determine the annual funding
requirements of certain projects identified by implementing agencies
and supported by foreign funding; assist the Secretary in determining
the budgetary implications of foreign assisted projects from the time
of project design to negotiations for financial assistance; ensure the
concurrence of the Secretary of Budget on all loan agreements;
evaluate the work-financial plan of projects chargeable against the
Foreign Assistance Projects (FAPS) support fund; and recommend
and effect the releases from such fund based on the approved work
financial plans as may be directed by the Secretary.
Title XVIII
CHAPTER 1
GENERAL PROVISIONS
CHAPTER 2
DEPARTMENT PROPER
CHAPTER 3
SERVICES
CHAPTER 4
BOARD, COUNCILS AND INSTITUTES
The main function of the Board shall be to review the plans of the
sectoral planning councils and the National Science and Technology
Plan and, in connection therewith, shall be assisted by the Planning
and Evaluation Service.
Section 11. Philippine Council for Industry and Energy Research and
Development. - The Philippine Council for Industry and Energy
Research and Development shall be under the administrative
supervision of the Department, and shall consist of the Secretary as
Chairman and eight (8) members, as follows: Secretary of Trade and
Industry, Secretary of Transportation and Communications, Secretary
of Public Works and Highways or their designated Undersecretaries,
and Executive Director of the Council Secretariat, and four (4)
representatives of the private sector in the field of industry and
energy, who are chief executive officers of their respective companies
in the field of industry or energy or are acknowledged leaders in their
professions to be appointed by the President, in their personal
capacity, upon recommendation of the Secretary, each of whom shall
be for a term of two (2) years; Provided, however, that the tenure of
the members first appointed by the President shall be as follows: two
(2) for one (1) year and two (2) for two (2) years, as fixed in their
respective appointments. The members shall serve and continue to
hold office until their respective successors shall have been duly
appointed and qualified. Appointment to any vacancy in the Council
shall be by the President and shall only be for the unexpired portion
of the term of the predecessor.
Section 14. Philippine Council for Aquatic and Marine Research and
Development. - The Philippine Council for Aquatic and Marine
Research and Development shall be under the administrative
supervision of the Department, and shall consist of the Secretary as
Chairman, and eight (8) members as follows: Secretary of Agriculture
and Food, Secretary of Natural Resources or their designated
Undersecretaries, Executive Director of the Council Secretariat, two
(2) representatives from the academic/research institution and three
(3) representatives from the private sector who are chief executive
officers of their respective companies in the field of aquaculture or
marine research or development or are acknowledged leaders of their
professions to be appointed by the President, in their personal
capacity, upon recommendation of the Secretary, each of whom shall
be for a term of two (2) years; Provided, however, that the terms of
the members first appointed by the President shall be as follows: two
(2) for one (1) year and the other three (3) for two (2) years, as fixed
in their respective appointments. The members shall serve and
continue to hold office until their successors shall have been duly
appointed and qualified. Appointment to any vacancy in the Council
shall be by the President and shall only be for the unexpired portion
of the term of the predecessor.
Section 15. Philippine Council for Advanced Science and Technology
Research and Development. - The Philippine Council for Advanced
Science and Technology Research and Development shall be under
the Administrative supervision of the Department and shall consist of
the Secretary as Chairman and eight (8) members, as follows:
Secretary of Education, Culture and Sports or his designated
Undersecretary, President of the University of the Philippines System,
two (2) representatives from the government sector, and four (4)
representatives from the private sector in the field of advanced
science research, all of whom shall be appointed by the President, in
their personal capacity, upon recommendation of the Secretary, each
of whom shall serve for a term of two (2) years.
(1) Conduct applied research and development for the textile industry
sector;
(4) Formulate plans and establish programs and projects for the
promotion and development of science and technology education and
training in coordination with the Department of Education, Culture and
Sports, and other institutions of learning in the field of science and
technology.
(2) Determine how eruptions and earthquakes shall occur and the
likely areas to be affected;
CHAPTER 6
ATTACHED AGENCIES
(1) Make its own organization, including its Constitution, by-laws and
rules and regulations;
(3) Provide for the election of members, division into classes, and for
all other matters needful or usual in such institution;
(4) Receive bequests and donations and hold the same in trust, to be
applied in aid of scientific investigations according to the will of the
donors;
(2) Recommend annually for Presidential awards not more than ten
(10) scientists for distinguished individual or collaborative
achievement in science or technology who shall be accorded by the
President the rank and title of "National Scientists." Said "National
Scientists" shall each be given gratuity in such amount to be fixed by
the Academy and entitled to other privileges as enjoyed by the
National Artists.
The Center shall have the powers and functions assigned to it by law.
Title I
CONSTITUTIONAL COMMISSIONS
Subtitle A
CHAPTER 1
GENERAL PROVISIONS
(3) Class includes all positions in the government service that are
sufficiently similar as to duties and responsibilities and require similar
qualifications that can be given the same title and salary and for all
administrative and compensation purposes, be treated alike.
CHAPTER 2
COVERAGE OF THE CIVIL SERVICE
(2) Positions in the Civil Service shall be classified into career service
and non-career service.
(4) Career officers, other than those in the Career Executive Service,
who are appointed by the President, such as the Foreign Service
Officers in the Department of Foreign Affairs;
(a) The first level shall include clerical, trades, crafts, and custodial
service positions which involve non-professional or subprofessional
work in a non-supervisory or supervisory capacity requiring less than
four years of collegiate studies;
(2) Secretaries and other officials of Cabinet rank who hold their
positions at the pleasure of the President and their personal or
confidential staff(s);
CHAPTER 3
ORGANIZATION AND FUNCTIONS OF THE CIVIL SERVICE
COMMISSION
Section 12. Powers and Functions. - The Commission shall have the
following powers and functions:
(2) Prescribe, amend and enforce rules and regulations for carrying
into effect the provisions of the Civil Service Law and other pertinent
laws;
(3) Promulgate policies, standards and guidelines for the Civil Service
and adopt plans and programs to promote economical, efficient and
effective personnel administration in the government;
(4) Formulate policies and regulations for the administration,
maintenance and implementation of position classification and
compensation and set standards for the establishment, allocation and
reallocation of pay scales, classes and positions;
(5) Render opinion and rulings on all personnel and other Civil
Service matters which shall be binding on all heads of departments,
offices and agencies and which may be brought to the Supreme
Court on certiorari;
(12) Issue subpoena and subpoena duces tecum for the production of
documents and records pertinent to investigation and inquiries
conducted by it in accordance with its authority conferred by the
Constitution and pertinent laws;
(15) Inspect and audit the personnel actions and programs of the
departments, agencies, bureaus, offices, local government units and
other instrumentalities of the government including government-
owned or controlled corporations; conduct periodic review of the
decisions and actions of offices or officials to whom authority has
been delegated by the Commission as well as the conduct of the
officials and the employees in these offices and apply appropriate
sanctions when necessary;
(6) Approve and submit the annual and supplemental budget of the
Commission; and
(b) Hear and decide cases brought before it on appeal by officials and
employees who feel aggrieved by the determination of appointing
authorities involving personnel actions and violations of the merit
system. The decision of the Board shall be final except those
involving division chiefs or officials of higher ranks which may be
appealed to the Commission;
(e) Promulgate rules and regulations to carry out the functions of the
Board subject to the approval of the Commission.
(3) The Office of Legal Affairs shall provide the Chairman with legal
advice and assistance; render counselling services; undertake legal
studies and researches; prepare opinions and rulings in the
interpretation and application of the Civil Service law, rules and
regulations; prosecute violations of such law, rules and regulations;
and represent the Commission before any Court or tribunal.
(15) The Regional and Field Offices. - The Commission shall have
not less than thirteen (13) Regional offices each to be headed by a
Director, and such field offices as may be needed, each to be headed
by an official with at least the rank of an Assistant Director. Each
Regional Office shall have the following functions:
CHAPTER 4
INTERDEPARTMENT RELATIONS
(3) Determine agency compliance with Civil Service Law and rules;
and
(4) In the performance of these functions, the staff shall welcome and
receive from the public any suggestions, observations and complaints
pertaining to the conduct of public officers and employees.
CHAPTER 5
PERSONNEL POLICIES AND STANDARDS
(2) When a vacancy occurs in a position in the first level of the Career
Service as defined in Section 6, the employees in the department
who occupy the next lower positions in the occupational group under
which the vacant position is classified, and in other functionally
related occupational groups and who are competent, qualified and
with the appropriate civil service eligibility shall be considered for
promotion.
(1) Public and private colleges and universities and similar institutions
shall be encouraged to organize and carry out continuing programs of
executive development.
(2) The Commission, the Commission on Audit, the Department of
Budget and Management, the General Services Administration, and
other central staff agencies shall conduct centralized training and
assist in the training program of the Departments or agencies along
their respective functional areas of specialization.
(2) Every Secretary or head of agency shall take all proper steps
toward the creation of an atmosphere conducive to good supervisor-
employee relations and the improvement of employee morale.
CHAPTER 6
RIGHT TO SELF-ORGANIZATION
(1) Dishonesty;
(2) Oppression;
(4) Misconduct;
(9) Receiving for personal use of a fee, gift or other valuable thing in
the course of official duties or in connection therewith when such fee,
gift, or other valuable thing is given by any person in the hope or
expectation of receiving favor or better treatment than that accorded
other persons, or committing acts punishable under the anti-graft
laws;
(22) Willful failure to pay just debts or willful failure to pay taxes due
to the government;
(25) Insubordination;
(4) An appeal shall not stop the decision from being executory, and in
case the penalty is suspension or removal, the respondent shall be
considered as having been under preventive suspension during the
pendency of the appeal in the event he wins an appeal.
(4) The investigation shall be held not earlier than five days nor later
than ten days from the date of receipt of respondent's answer by the
disciplining authority, and shall be finished within thirty days from the
filing of the charges, unless the period is extended by the
Commission in meritorious cases. The decision shall be rendered by
the disciplining authority within thirty days from the termination of the
investigation or submission of the report of the investigator, which
report shall be submitted within fifteen days from the conclusion of
the investigation.
(5) The direct evidence for the complainant and the respondent shall
consist of the sworn statement and documents submitted in support
of the complaint or answer, as the case may be, without prejudice to
the presentation of additional evidence deemed necessary but was
unavailable at the time of the filing of the complaint or answer, upon
which the cross-examination, by respondent and the complainant,
respectively, shall be based. Following cross-examination, there may
be redirect and recross-examination.
(6) Either party may avail himself of the services of counsel and may
require the attendance of witnesses and the production of
documentary evidence in his favor through the compulsory process of
subpoena or subpoena duces tecum.
(1) When the charge is serious and the evidence of guilt is strong;
CHAPTER 7
PROHIBITIONS
(2) No candidate who has lost in any election shall, within one year
after election, be appointed to any office in the Government or any
government-owned or controlled corporations or in any of its
subsidiaries.
As used in this Section, the word "relative" and members of the family
referred to are those related within the third degree either or
consanguinity or of affinity.
(2) The following are exempted from the operation of the rules on
nepotism: (a) persons employed in a confidential capacity, (b)
teachers, (c) physicians, and (d) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full
report of such appointment shall be made to the Commission.
CHAPTER 8
LEAVE OF ABSENCE
CHAPTER 9
MISCELLANEOUS PROVISIONS
Section 62. Fees. - The Commission shall collect and charge fees for
civil service examinations, certifications of civil service ratings,
service records, and other civil service matters, training courses,
seminars, workshops in personnel management and other civil
service matters. For this purpose, the Commission shall prescribe
standard and reasonable rates for such examinations, certifications,
training courses, seminars, and workshops: Provided, That no
examination fees shall be collected in examinations given for the
selection of scholars.
Section 63. Income. - The income of the Commission from fees, costs
for services it may assess and levy, and such other proceeds
generated in the performance of its functions shall be directly utilized
by the Commission for its expenses.
Subtitle B
CHAPTER 1
GENERAL PROVISIONS
(1) "Fund" is a sum of money or other resources set aside for the
purpose of carrying out specific activities or attaining certain
objectives in accordance with special requisitions, restrictions, or
limitations, and constitutes an independent fiscal and accounting
entity.
(3) "Revenue funds" comprises all funds deprived from the income of
any agency of the Government and available for appropriation or
expenditure in accordance with law.
(4) "Trust funds" refers to funds which have come officially into the
possession of any agency of the Government or of a public officer as
trustee, agent, or administrator, or which have been received for the
fulfillment of some obligation.
CHAPTER 2
ORGANIZATION OF THE COMMISSION ON AUDIT
Section 3. The Commission Proper. - The Commission Proper shall
be composed of the Chairman and two Commissioners. It shall sit as
a body to formulate policies, promulgate rules and regulations, and
prescribe standards governing the discharge of its powers and
functions.
(1) Prepare the agenda for the sessions of the Commission Proper;
(2) Prepare and keep the minutes of all sessions, hearings and
conferences of the Commission Proper;
(3) Maintain the records of the Commission Proper; and
CHAPTER 3
OFFICES
(a) Formulate long range and annual plans and programs for the
Commission;
(b) Formulate basis policies and guidelines for the preparation of the
budget of the Commission, coordinate with the Department of Budget
and Management, and the Office of the President in the preparation
of the said budget;
(e) Establish and maintain such training centers and libraries as may
be authorized by the Commission; and
(a) Prepare for the Commission, the annual financial report of the
National Government and such other financial or statistical works as
may be required by the Commission;
(b) Maintain the accounts of the current surplus of the general fund of
the national government;
(5) The Special Audits Office shall be headed by a Director and shall
perform the following functions:
(7) The Legal Office shall be headed by a General Counsel with the
rank and privileges of a director and which shall perform the following
functions:
(e) Coordinate and initiate for the Commission, with appropriate legal
bodies of government with respect to legal proceedings towards the
collection and enforcement of debts and claims, and the restitution of
funds and property, found to be due any government agency in the
settlement and adjustment of its accounts by the Commission; and
(f) Advise and assist the Chairman on matters pertaining to the audit
of agencies of the national government under their respective
jurisdictions; and
(g) Advise and assist the Chairman on matters pertaining to the audit
of government-owned or controlled corporations; and
(e) Formulate accounting and auditing rules and regulations for local
government units;
(f) Prepare for the Commission, the annual financial report of local
government units;
(g) Advise and assist the Chairman on matters pertaining to the audit
of local government units; and
(2) Submit audit reports and such other reports as may be required
by the Commission;
CHAPTER 4
JURISDICTION, POWERS AND FUNCTIONS OF THE
COMMISSION
(1) The Commission on Audit shall have the power, authority, and
duty to examine, audit, and settle all accounts pertaining to the
revenue and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the Government,
or any of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations with original charters,
and on a post-audit basis: (a) constitutional bodies, commissions and
offices that have been granted fiscal autonomy under this
Constitution; (b) autonomous state colleges and universities, (c) other
government-owned or controlled corporations and their subsidiaries;
and (d) such non-governmental entities receiving subsidy or equity,
directly or indirectly from or through the Government, which are
required by law or the granting institution to submit to such audit as a
condition of subsidy or equity. However, where the internal control
system of the audited agencies is inadequate, the Commission may
adopt such measures, including temporary or special pre-audit, as
are necessary and appropriate to correct the deficiencies. It shall
keep the general accounts of the Government and, for such period as
may be provided by law, preserve the vouchers and other supporting
papers pertaining thereto.
(1) The Commission shall fix and collect reasonable fees for the
different services rendered to non-government entities that shall be
audited in connection with their dealings with the Government arising
from subsidiaries, counterpart funding by Government, or where
audited records become the basis for a government levy or share.
Fees of this nature shall accrue to the General Fund and shall be
remitted to the Treasurer of the Philippines within ten (10) days
following the completion of the audit; and
(1) The Commission may, when the exigencies of the service also
require, deputize and retain in the name of the Commission such
certified public accountants and other licensed professionals not in
the public service as it may deem necessary to assist government
auditors in undertaking specialized audit engagements; and
(1) No government agency shall enter into any contract with any
private person or firm for services to undertake studies and services
relating to government auditing, including services to conduct, for a
fee, seminars or workshops for government personnel on these
topics, unless the proposed contract is first submitted to the
Commission to enable it to determine if it has the resources to
undertake such studies or services. The Commission may engage
the services of experts from the public or private sectors in the
conduct of these studies; and
(2) Should the Commission decide not to undertake the study or
service, it shall nonetheless have the power to review the contract in
order to determine the reasonableness of its costs.
(1) The Commission shall examine and audit the books, records and
accounts of public utilities in connection with the fixing of rates of
every nature, or in relation to the proceedings of the proper regulatory
agencies, for purposes of determining franchise taxes;
(2) Any public utility refusing to allow an examination and audit of its
books of accounts and pertinent records, or offering unnecessary
obstruction to the examination and audit, or found guilty of concealing
any material information concerning its financial status shall be
subject to the penalties provided by law; and
(3) During the examination and audit, the public utility concerned shall
produce all the reports, records, books of accounts and such other
papers as may be required. The Commission shall have the power to
examine under oath any official or employee of the said public utility.
(1) The Commission shall have the power, for purposes of inspection,
to require the submission of the original of any order, deed, contract,
or other document under which any collection, or payment from,
government funds may be made, together with any certificate,
receipt, or other evidence in connection therewith. If authenticated
copy is needed for record purposes, the copy shall upon demand be
furnished;
(1) The Commission shall submit to the President, and the Congress
not later than the last day of September of each year an annual report
on the financial condition and results of operation of all agencies of
the Government which shall include recommendations of measures
necessary to improve the efficiency and effectiveness of these
agencies;
(2) To carry out the purposes of this section, the Chief Accountant or
the official in charge of keeping the accounts of government agency
shall submit to the Commission year-end trial balances and such
other supporting or subsidiary statements as may be required by the
Commission not later than the fourteenth (14) day of February. Trial
balances returned by the Commission for revision due to non-
compliance with accounting rules and regulations shall be
resubmitted within three days after the date of receipt by the official
concerned; and
(3) Failure on the part of any official or employee to comply with the
provisions of the immediately preceding paragraph shall cause the
automatic suspension of the payment of his salary and other
emoluments until he shall have complied therewith. The violation of
these provisions for at least three (3) times shall subject the offender
to administrative disciplinary action.
(1) The Auditors shall exercise such powers and functions as may be
authorized by the Commission in the examination, audit and
settlement of the accounts, funds, financial transactions and
resources of the agencies under their respective audit jurisdiction;
(2) A report of audit for each calendar year shall be submitted on the
last working day of February following the close of the year by the
head of each auditing unit through the Commission to the head or the
governing body of the agency concerned, and copies thereof shall be
furnished the government officials concerned or authorized to receive
them. Subject to such rules and regulations as the Commission may
prescribe, the report shall set forth the scope of audit and shall
include statements of financial conditions, surplus or deficit analysis,
operations, changes in financial position, and such comments and
information as may be necessary together with such
recommendations with respect thereto as may be advisable, including
a report of any impairment of capital noted in the audit. It shall also
show specifically any program, expenditure, or other financial
transaction or undertaking observed in the course of the audit which
in the opinion of the auditor has been carried out or made without
authority of law. The auditor shall render such other reports as the
Commission may require:
(4) The auditors in all auditing units shall have the custody and be
responsible for the safekeeping and preservation of paid expense
vouchers, journal vouchers, stubs of treasury warrants or checks,
reports of collections and disbursements and similar documents,
together with their respective supporting papers, under regulations of
the Commission.
Section 30. Annual Audit and Work Program. - Each Auditor who is
head of an auditing unit shall develop and devise an annual work
program and the necessary audit program for his unit in accordance
with the regulations of the Commission.
(3) The auditor who takes possession of the office of the local
treasurer under this section shall ipso facto supersede the local
treasurer until the officer involved is restored, or another person has
been appointed or designated to the position or other provision has
been lawfully made for filling the office.
(3) In case the said accountable officer or other person having the
possession and control of the property sought to be placed under
constructive distraint refuses or fails to accomplish the receipt herein
referred to, the representative of the Commission effecting the
constructive distraint shall proceed to prepare a list of such property
and, in the presence of two (2) witnesses, leave a copy thereof in the
premises where the property distrained is located, after which the
said property shall be deemed to have been placed under
constructive distraint.
CHAPTER 5
DECISIONS OF THE COMMISSION
(1) At any time before the expiration of three (3) years after the
settlement of any account by an auditor, the Commission may motu
proprio review and revise the account or settlement and certify a new
balance. For this purpose, it may require any account, vouchers or
other papers connected with the matter to be forwarded to it;
CHAPTER 6
GOVERNMENT AUDITING AND ACCOUNTING
(2) In all matters relating to the audit work, the auditor shall maintain
complete independence, impartiality and objectivity and shall avoid
any possible compromise of his independence or any act which may
create a presumption of lack of independence or the possibility of
undue influence in the performance of his duties; and
(3) The auditor shall exercise due professional care and be guided by
applicable laws, regulations and the generally accepted principles of
accounting in the performance of the audit work a well as in the
preparation of audit and financial reports.
CHAPTER 7
RECEIPT AND DISPOSITION OF FUNDS AND PROPERTY
CHAPTER 8
APPLICATION OF APPROPRIATED FUNDS
(1) Revenue funds shall not be paid out of any public treasury or
depository except in pursuance of an appropriation law or other
specific statutory authority;
(2) Trust funds shall not be paid out of any public treasury or
depository except in fulfillment of the purpose for which the trust was
created or funds received and upon authorization of the legislative
body, or head of any other agency of the government having control
thereof, and subject to pertinent budget laws, rules and regulations;
(3) National revenue and trust funds shall not be withdrawn from the
National Treasury except upon warrant or other instruments of
withdrawal approved by the Secretary of Finance as recommended
by the Treasurer of the Philippines; and
CHAPTER 10
MISCELLANEOUS PROVISIONS
Section 54. Duty to Respect the Commission's Independence. - It
shall be the duty of every person to respect, protect and preserve the
independence of the Commission.
Subtitle C
COMMISSION ON ELECTIONS
CHAPTER 1
GENERAL PROVISIONS
(4) During the period of the campaign and ending thirty days
thereafter, when in any area of the country there are persons
committing acts of terrorism to influence people to vote for or against
any candidate or political party, the Commission shall have the power
to authorize any member or members of the Armed Forces of the
Philippines, the National Bureau of Investigation, the Integrated
National Police or any similar agency or instrumentality of the
government, except civilian home defense forces, to act as deputies
for the purpose of insuring the holding of free, orderly, honest,
peaceful and credible elections;
(6) Refuse, motu propio or upon a verified petition, to give due course
to or cancel a certificate of candidacy if it is shown that said certificate
has been filed to put the election process in mockery or disrepute or
to cause confusion among the voters by the similarity of the names of
the registered candidates or by other circumstances or acts which
clearly demonstrate that the candidate has no bona fide intention to
run for the office for which the certificate of candidacy has been filed
and thus prevent a faithful determination of the true will of the
electorate;
(7) Postpone, motu propio or upon verified petition and after due
notice and hearing whereby all interested parties are afforded equal
opportunity to be heard, the election to a date which should be
reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after
the cessation of the cause for such postponement or suspension of
the election or failure to elect, when for any serious cause such as
violence, terrorism, loss or destruction of election paraphernalia or
records, force majeure, and other analogous causes the holding of a
free, orderly, honest, peaceful and credible election should become
impossible in any political subdivision.
(8) Call for the holding or continuation of election not held in any
polling place where on account of force majeure, violence, terrorism,
fraud or other analogous causes the election has not been held on
the date fixed, or had been suspended before the hour fixed by law
for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension of election would
affect the result of the election. Such call should be on the basis of a
verified petition by any interested party and after due notice and
hearing and the new date should be reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect
but not later than thirty (30) days after the cessation of the cause of
such postponement or suspension of the election or failure to elect.
(9) Call a special election to elect the member to serve the unexpired
portion in case a vacancy arises in the Senate or in the House of
Representatives eighteen (18) months or more before a regular
election, to be held within sixty (60) days after the vacancy occurs;
(11) Punish for contempt according to the procedure, and with the
same penalties provided, in the Rules of Court. Any violation of any
final and executory decision, order or ruling of the Commission shall
constitute contempt thereof;
(21) Have the exclusive power, through its duly authorized legal
officers, to conduct preliminary investigation of all election offenses
punishable under the Omnibus Election Code and to prosecute the
same. The Commission may avail itself of the assistance of other
prosecuting arms of the government: Provided, however, that in the
event that the Commission fails to act on any complaint within four (4)
months from its filing, the complainant may file the complaint with the
office of the fiscal or with the Department of Justice for proper
investigation and prosecution, if warranted; and
1. To stop any illegal activity, or confiscate, tear down, and stop any
unlawful, libelous, misleading or false election propaganda, after due
notice and hearing; and
CHAPTER 2
THE COMMISSION PROPER
CHAPTER 3
THE FIELD OFFICES
Section 11. Field Office of the Commission. - The Commission shall
have the following field offices:
The Commission may delegate its powers and functions or order the
implementation or enforcement of its orders, rulings or decisions
through the heads of its field offices.
Title II
OTHER BODIES
Subtitle A
(2) Adopt its operational guidelines and rules of procedure, and cite
for contempt violations thereof in accordance with the Rules of Court;
(10) Appoint its officers and employees in accordance with law; and
Subtitle B
Section 1. Composition. -
(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or
controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties;
(3) Direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith;
(4) Direct the officer concerned, in any appropriate case, and subject
to such limitations as may be provided by law, to furnish it with copies
of documents relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or properties,
and report any irregularity to the Commission on Audit for appropriate
action;
(8) Promulgate its rules of procedure and exercise such other powers
or perform such functions or duties as may be provided by law.
Subtitle C
The National Economic and Development Authority
CHAPTER 1
GENERAL PROVISIONS
(4) National plans shall be in fact the sum of nationally and regionally
identified targets and strategies and locally formulated approaches to
perceived local needs and priorities, carried out within the framework
of national strategies;
CHAPTER 2
NEDA BOARD
Section 5. Composition of the NEDA Board. - The NEDA Board shall
be composed of the following:
The President
- Chairman
- Vice-Chairman
Executive Secretary
- Member
Secretary of Finance
- Member
- Member
Secretary of Agriculture
- Member
- Member
Secretary of Public Works and Highways
- Member
- Member
- Member
- Member
(a) Advise the President and the NEDA Board on matters concerning
social development, including education, manpower, health and
nutrition, population and family planning, housing, human settlements
and the delivery of other social services;
(a) Advise the President and the NEDA Board or matters concerning
infrastructure development including highways, airports, seaports and
shore protection; railways; power generation, transmission and
distribution; telecommunications; irrigation, flood control and
drainage; water supply; national buildings for government offices;
hospitals, sanitation and related buildings; state colleges and
universities, elementary and secondary school buildings; and other
public works;
(b) Coordinate the activities of agencies, including government-
owned or controlled corporations concerned with infrastructure
development; and
(a) Advise the President and the NEDA Board on tariff and related
matters, and on the effects on the country of various international
developments;
CHAPTER 3
NEDA SECRETARIAT
(1) Serve as the research and technical support arm of the NEDA
Board;
CHAPTER 4
ATTACHED AGENCIES
The Authority shall arrange for the transfer of the functions of the
following agencies to the Regional Development Councils concerned
or other agencies as may be appropriate:
BOOK VI
CHAPTER 1
GENERAL PROVISIONS
(5) A special appropriations bill shall specify the purpose for which it
is intended, and shall be supported by funds actually available as
certified by the National Treasurer or to be raised by a corresponding
revenue proposal therein.
(8) If, by the end of any fiscal year, the Congress shall have failed to
pass the general appropriations bill for the ensuing fiscal year, the
general appropriations law for the preceding fiscal year shall be
deemed reenacted and shall remain in force and effect until the
general appropriations bill is passed by the Congress.
(8) "Fiscal year" refers to the period beginning with the first day of
January and ending with the thirty-first day of December of each
calendar year.
(12) "Program" refers to the functions and activities necessary for the
performance of a major purpose for which a government agency is
established.
CHAPTER 2
BUDGET POLICY AND APPROACH
CHAPTER 3
BUDGET PREPARATION
The President may transmit to the Congress from time to time, such
proposed supplemental or deficiency appropriations as are, in his
judgment, (1) necessary on account of laws enacted after the
transmission of the Budget, or (2) otherwise needed in the public
interest.
Section 12. Form and Content of the Budget. - The budget proposal
of the President shall include current operating expenditures and
capital outlays. It shall comprise such funds as may be necessary for
the operation of the programs, projects and activities of the various
departments and agencies. The proposed General Appropriations Act
and other Appropriations Acts necessary to cover the budget
proposals shall be submitted to the Congress to accompany the
President's budget submission.
(b) Estimated receipts during the ensuing fiscal year under laws
existing at the time the budget is transmitted and under the revenue
proposals, if any, forming part of the year's financing program;
(c) Actual appropriations, expenditures, and receipts during the last
completed fiscal year;
(7) Brief description of the major thrusts and priority programs and
projects for the budget year, results expected for each budgetary
program and project, the nature of work to be performed, estimated
costs per unit of work measurement, including the various objects of
expenditure for each project;
CHAPTER 4
BUDGET AUTHORIZATION
CHAPTER 5
BUDGET EXECUTION
(7) Peso support to any undertaking that may be entered into by the
government with international organizations, including administrative
and other incidental expenses;
(9) Priority activities that will promote the economic well being of the
nation, including food production, agrarian reform, energy
development, disaster relief, and rehabilitation.
CHAPTER 6
BUDGET ACCOUNTABILITY
CHAPTER 7
EXPENDITURE OF APPROPRIATED FUNDS
(3) Officials and employees who are required to render service within
the premises of hospitals, penal institutions, leper institutions, military
installations, and other similar institutions, for a continuous period that
includes meal time, may be allowed full subsistence when required to
live in said premises to make their services available at any and all
times;
The Committee shall review travel rates and shall recommend to the
President for consideration and approval modification in rates and
policy when found to be warranted by actual domestic or foreign
travel costs, as the case may be.
BOOK VII
ADMINISTRATIVE PROCEDURE
CHAPTER 1
GENERAL PROVISIONS
(8) "Decision" means the whole or any part of the final disposition, not
of an interlocutory character, whether affirmative, negative, or
injunctive in form, of an agency in any matter, including licensing, rate
fixing and granting of rights and privileges.
(10) "License" includes the whole or any part of any agency permit,
certificate, passport, clearance, approval, registration, charter,
membership, statutory exemption or other form of permission, or
regulation of the exercise of a right or privilege.
CHAPTER 2
RULES AND REGULATIONS
Section 3. Filing. -
(1) Every agency shall file with the University of the Philippines Law
Center three (3) certified copies of every rule adopted by it. Rules in
force on the date of effectivity of this Code which are not filed within
three (3) months from that date shall not thereafter be the basis of
any sanction against any party or persons.
(1) Publish a quarter bulletin setting forth the text of rules filed with it
during the preceding quarter; and
(1) The University of the Philippines Law Center may omit from the
bulletin or the codification any rule if its publication would be unduly
cumbersome, expensive or otherwise inexpedient, but copies of that
rule shall be made available on application to the agency which
adopted it, and the bulletin shall contain a notice stating the general
subject matter of the omitted rule and new copies thereof may be
obtained.
Section 8. Judicial Notice. - The court shall take judicial notice of the
certified copy of each rule duly filed or as published in the bulletin or
the codified rules.
(2) In the fixing of rates, no rule or final order shall be valid unless the
proposed rates shall have been published in a newspaper of general
circulation at least two (2) weeks before the first hearing thereon.
CHAPTER 3
ADJUDICATION
(1) In any contested case all parties shall be entitled to notice and
hearing. The notice shall be served at least five (5) days before the
date of the hearing and shall state the date, time and place of the
hearing.
(1) The agency may admit and give probative value to evidence
commonly accepted by reasonably prudent men in the conduct of
their affairs.
(4) The agency may take notice of judicially cognizable facts and of
generally cognizable technical or scientific facts within its specialized
knowledge. The parties shall be notified and afforded an opportunity
to contest the facts so noticed.
Section 13. Subpoena. - In any contested case, the agency shall have
the power to require the attendance of witnesses or the production of
books, papers, documents and other pertinent data, upon request of
any party before or during the hearing upon showing of general
relevance. Unless otherwise provided by law, the agency may, in
case of disobedience, invoke the aid of the Regional Trial Court
within whose jurisdiction the contested case being heard falls. The
Court may punish contumacy or refusal as contempt.
(1) Every agency shall publish and make available for public
inspection all decisions or final orders in the adjudication of contested
cases.
(2) It shall be the duty of the records officer of the agency or his
equivalent functionary to prepare a register or compilation of those
decisions or final orders for use by the public.
CHAPTER 4
ADMINISTRATIVE APPEAL IN CONTESTED CASES
(3) The agency shall, upon perfection of the appeal, transmit the
records of the case to the appellate agency.
Section 21. Effect of Appeal. - The appeal shall stay the decision
appealed from unless otherwise provided by law, or the appellate
agency directs execution pending appeal, as it may deem just,
considering the nature and circumstances of the case.
Section 22. Action on Appeal. - The appellate agency shall review the
records of the proceedings and may, on its own initiative or upon
motion, receive additional evidence.
(1) Each agency shall have such number of qualified and competent
members of the base as hearing officers as may be necessary for the
hearing and adjudication of contested cases.
(2) No hearing officer shall engaged in the performance of
prosecuting functions in any contested case or any factually related
case.
(3) The action for judicial review may be brought against the agency,
or its officers, and all indispensable and necessary parties as defined
in the Rules of Court.
(5) The petition for review shall be perfected within fifteen (15) days
from receipt of the final administrative decision. One (1) motion for
reconsideration may be allowed. If the motion is denied, the movant
shall perfect his appeal during the remaining period for appeal
reckoned from receipt of the resolution of denial. If the decision is
reversed on reconsideration, the appellant shall have fifteen (15)
days from receipt of the resolution to perfect his appeal.
Section 26. Transmittal of Record. - Within fifteen (15) days from the
service of the petition for review, the agency shall transmit to the
court the original or a certified copy of the entire records of the
proceeding under review. The record to be transmitted may be
abridged by agreement of all parties to the proceedings. The court
may require or permit subsequent correction or additions to the
record.
FINAL PROVISIONS
Section 27. Repealing Clause. - All laws, decrees, orders, rules and
regulations, or portions thereof, inconsistent with this Code are
hereby repealed or modified accordingly.
Section 29. Effectivity. - This Code shall take effect one year after its
publication in the Official Gazette.
DONE in the City of Manila, this 25th day of July, in the year of Our
Lord, nineteen hundred and eighty-seven.
Notes:
Appendix B
PRESIDENTIAL DECREE No. 807 October 6, 1975
ARTICLE I
TITLE
ARTICLE II
DECLARATION OF POLICY
Section 2. It shall be the policy of the State to insure and promote the
Constitutional mandate that appointment in the Civil Service shall be
made only according to merit and fitness, to provide within the public
service a progressive system of personnel administration, and to
adopt measures to promote morale and the highest degree of
responsibility, integrity, loyalty, efficiency, and professionalism in the
Civil Service; that the Civil Service Commission shall be the central
personnel agency to set standards and to enforce the laws and rules
governing the selection, utilization, training and discipline of civil
servants; that a public office is a public trust and public officers shall
serve with the highest degree of responsibility, integrity, loyalty and
efficiency and shall remain accountable to the people; and that action
on personnel matters shall be decentralized, with the different
departments and other offices or agencies of the government
delegating to their regional offices or other similar units, powers and
functions.
ARTICLE III
DEFINITION OF TERMS
(c) Class includes all positions in the government service that are
sufficiently similar as to duties and responsibilities and require similar
qualifications that can be given the same title and salary and for all
administrative and compensation purposes, be treated alike.
ARTICLE IV
SCOPE OF THE CIVIL SERVICE
1. The first level shall include clerical, trades, crafts, and custodial
service positions which involve non-professional or subprofessional
work in a non-supervisory or supervisory capacity requiring less than
four years of collegiate studies;
ARTICLE V
ORGANIZATION AND FUNCTIONS
(b) Prescribe, amend and enforce suitable rules and regulations for
carrying into effect the provisions of this Decree. These rules and
regulations shall become effective thirty days after publication in the
Official Gazette or in any newspaper of general circulation;
(e) Appoint its personnel and exercise overall supervision and control
over the activities of the Commission;
(i) Inspect and audit periodically the personnel work programs of the
different departments, bureaus, offices, agencies and other
instrumentalities of the government, including government-owned or
controlled corporations, conduct periodic review of decisions and
actions of offices or officials to whom authority has been delegated by
the Commission as well as the conduct of the officials and employees
in these offices and apply appropriate sanctions whenever necessary;
(a) Enforce Civil Service Law and Rules in connection with personnel
actions of national and local government agencies within the region,
and the conduct of public officers and employees;
ARTICLE VI
RESPONSIBILITIES OF PUBLIC OFFICERS AND EMPLOYEES
ARTICLE VII
INTERDEPARTMENT RELATIONS
ARTICLE VIII
PERSONNEL POLICIES AND STANDARDS
9. Those who acquired civil service eligibility after the passage of the
Integrated Reorganization Plan by virtue of having passed civil
service examinations or their equivalents may avail of said eligibilities
within a period not exceeding five years.
(a) Public and private colleges and universities and similar institutions
shall be encouraged to organize and carry out continuing programs of
executive development.
(b) Every head of department or agency shall take all proper steps
toward the creation of an atmosphere conducive to good supervisor-
employee relations and the improvement of employee morale.
ARTICLE IX
DISCIPLINE
2. Oppression;
3. Neglect of duty;
4. Misconduct;
22. Willful failure to pay just debts or willful failure to pay taxes due to
the government;
25. Insubordination;
(d) An appeal shall not stop the decision from being executory, and in
case the penalty is suspension or removal, the respondent shall be
considered as having been under the preventive suspension during
the pendency of the appeal in the event he wins an appeal.
(e) The direct evidence for the complainant and the respondent shall
consist of the sworn statement and documents submitted in support
of the complaint or answer, as the case may be, without prejudice to
the presentation of additional evidence deemed necessary but was
unavailable at the time of the filing of the complaint or answer, upon
which the cross-examination, by respondent and the complainant,
respectively, shall be based. Following cross-examination, there may
be redirect and recross-examination.
(f) Either party may avail himself of the services of counsel and may
require the attendance of witnesses and the production of
documentary evidence in his favor through the compulsory process of
subpoena or subpoena duces tecum.
(a) When the charge is serious and the evidence of guilt is strong;
ARTICLE X
PROHIBITIONS
As used in this Section, the word "relative" and members of the family
referred to are those related within the third degree either of
consanguinity or of affinity.
(b) The following are exempted from the operation of the rules on
nepotism: (1) persons employed in a confidential capacity, (2)
teachers, (3) physicians, and (4) members of the Armed Forces of the
Philippines: Provided, however, That in each particular instance full
report of such appointment shall be made to the Commission.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 51. Fees. The Commission shall collect and charge fees for
civil service examinations, certifications of civil service ratings,
service records, and other civil service matters, training courses,
seminars, workshops in personnel management and other civil
service matters.
ARTICLE XII
TRANSITORY PROVISIONS
Section 59. Repealing Clause. All laws, rules and regulations or parts
thereof inconsistent with the provisions of this Decree are hereby
repealed or modified accordingly.
Section 61. Effectivity. This Decree shall form part of the law of the
land and shall take effect immediately.
DONE in the City of Manila, this 6th day of October, in the year of Our
Lord, nineteen hundred and seventy-five.
Notes:
Appendix C
BATAS PAMBANSA BLG. 881
OMNIBUS ELECTION CODE OF THE PHILIPPINES
ARTICLE I
GENERAL PROVISIONS
Section 1. Title. - This Act shall be known and cited as the "Omnibus
Election Code of the Philippines."
Section 2. Applicability. - This Code shall govern all election of public
officers and, to the extent appropriate, all referenda and plebiscites.
Section 3. Election and campaign periods. - Unless otherwise fixed in
special cases by the Commission on Elections, which hereinafter
shall be referred to as the Commission, the election period shall
commence ninety days before the day of the election and shall end
thirty days thereafter.
The period of campaign shall be as follows:
1. Presidential and Vice-Presidential Election - 90 days;
2. Election of Members of the Batasang Pambansa and Local
Election - 45 days; and
3. Barangay Election - 15 days.
The campaign periods shall not include the day before and the day of
the election.
However, in case of special elections under Article VIII, Section 5,
Subsection (2) of the Constitution, the campaign period shall be forty-
five days.
The Commission shall send sufficient copies of its resolution for the
holding of the election to its provincial election supervisors and
election registrars for dissemination, who shall post copies thereof in
at least three conspicuous places preferably where public meetings
are held in each city or municipality affected.
ARTICLE II
ELECTION OF PRESIDENT AND VICE-PRESIDENT
ARTICLE III
ELECTION OF MEMBERS OF THE BATASANG PAMBANSA
Region I:
Abra, 1;
Benguet, 1;
Ilocos Norte with Laoag City, 2;
Ilocos Sur, 2;
La Union, 2;
Mountain Province, 1;
Pangasinan with the cities of Dagupan and San Carlos, 6;
Baguio City, 1.
Region II:
Batanes, 1;
Cagayan, 3;
Ifugao, 1;
Isabela, 3;
Kalinga-Apayao, 1;
Nueva Vizcaya, 1;
Quirino, 1.
Region III:
Bataan, 1;
Bulacan, 4;
Nueva Ecija with the cities of Cabanatuan, Palayan and San Jose, 4;
Pampanga with Angeles City, 4;
Tarlac, 2;
Zambales, 1;
Olongapo City, 1.
Region IV:
Aurora, 1;
Batangas with the cities of Batangas and Lipa, 4;
Cavite with the cities of Cavite, Tagaytay and Trece Martires, 3;
Laguna with San Pablo City, 4;
Marinduque, 1;
Occidental Mindoro, 1;
Oriental Mindoro, 2;
Palawan with Puerto Princesa City, 1;
Quezon with Lucena City, 4;
Rizal, 2;
Romblon, 1.
Region V:
Region VI:
Aklan, 1;
Antique, 1;
Capiz with Roxas City;
Iloilo with Iloilo City, 5;
Negros Occidental with the cities of Bacolod, Bago, Cadiz, La
Carlota, San Carlos and Silay, 7.
Region VII:
Region VIII:
Region IX:
Basilan, 1;
Sulu, 1;
Tawi-Tawi, 1;
Zamboanga del Norte with the cities of Dapitan and Dipolog, 2;
Zamboanga del Sur with Pagadian City, 3;
Zamboanga City, 1.
Region X:
Region XI:
The youth sector embraces persons not more than twenty-five years
of age.
ARTICLE IV
ELECTION OF LOCAL OFFICIALS
The officials elected shall assume office on the thirtieth day of June
next following the election and shall hold office for six years and until
their successors shall have been elected and qualified.
ARTICLE V
ELECTION OF MEMBERS OF THE REGIONAL ASSEMBLY OF
THE AUTONOMOUS REGIONS.
Region IX:
Basilan, one (1);
Sulu, three (3);
Tawi-Tawi, one (1);
Zamboanga del Norte including the cities of Dipolog and Dapitan,
four, (4);
and Zamboanga del Sur, including the City of Pagadian, six (6);
and Zamboanga City, two (2);
Region XII:
Lanao del Norte, two (2); Iligan City, one (1);
Lanao del Sur including the City of Marawi, four (4);
Maguindanao including the City of Cotabato, four (4);
North Cotabato, four (4);
and Sultan Kudarat, two (2).
ARTICLE VI
ELECTION OF BARANGAY OFFICIALS
The officials elected shall assume office on the thirtieth day of June
next following the election and shall hold office for six years and until
their successors shall have been elected and qualified.
(1) The Commission shall constitute not later than ten days before the
election a board of election tellers in every barangay polling place, to
be composed of a public elementary school teacher as chairman, and
two members who are registered voters of the polling place
concerned, but who are not incumbent barangay officials nor related
to any candidate for any position in that barangay within the fourth
civil degree of affinity or consanguinity.
(2) The board of election tellers shall supervise and conduct the
election in their respective polling places, count the votes and
thereafter prepare a report in triplicate on a form prescribed by the
Commission. The original of this report shall be delivered immediately
to the barangay board of canvassers. The second copy shall be
delivered to the election registrar and the third copy shall be delivered
to the secretary of the sangguniang barangay who shall keep the
same on file.
Section 41. Registration of voters and list of voters. - Not later than
seven days before the election, the board of election tellers shall
meet in every barangay polling place to conduct the registration of
barangay voters and to prepare the list of voters. Any voter may
challenge the qualification of any person seeking to register and said
challenge shall be heard and decided on the same day by the board
of election tellers.
The final list of voters shall be posted in the polling places at least two
days before election day. The registration of any voter shall not be
transferred without written notice at least two days before the date of
election. Not later than the day following the barangay election, the
board of election tellers shall deliver the list of voters to the election
registrar for custody and safekeeping.
Section 42. Polling places. - (1) The chairman of the board of election
tellers shall designate the public school or any other public building
within the barangay to be used as polling place in case the barangay
has one election precinct. (2) For barangays with two or more
election precincts the chairman of the board of canvassers shall
designate the public school or any other public building to be used as
polling place.
Such official ballots shall, before they are handed to the voter at the
polling place, be authenticated in the presence of the voter, by the
authorized representatives of the candidates and the chairman and
members of the board of election tellers who shall affix their
signatures at the back thereof. Any ballot which is not authenticated
shall be deemed spurious.
Section 44. Ballot boxes. - The Commission shall provide the ballot
boxes for each barangay polling place, but each candidate may be
permitted to provide a padlock for said ballot box.
Section 45. Postponement or failure of election. - When for any
serious cause such as violence, terrorism, loss or destruction of
election paraphernalia or records, force majeure, and other
analogous causes of such nature that the holding of a free, orderly
and honest election should become impossible in any barangay, the
Commission, upon a verified petition of an interested party and after
due notice and hearing at which the interested parties are given equal
opportunity to be heard, shall postpone the election therein for such
time as it may deem necessary.
(3) In a barangay where there is only one polling place, the barangay
board of election tellers shall also be the barangay board of
canvassers.
ARTICLE VII
THE COMMISSION ON ELECTIONS
(b) During the period of the campaign and ending thirty days
thereafter, when in any area of the country there are persons
committing acts of terrorism to influence people to vote for or against
any candidate or political party, the Commission shall have the power
to authorize any member or members of the Armed Forces of the
Philippines, the National Bureau of Investigation, the Integrated
National Police or any similar agency or instrumentality of the
government, except civilian home defense forces, to act as deputies
for the purpose of ensuring the holding of free, orderly and honest
elections.
(e) Punish contempts provided for in the Rules of Court in the same
procedure and with the same penalties provided therein. Any violation
of any final and executory decision, order or ruling of the Commission
shall constitute contempt thereof.
B. On Election Day:
The Commission may delegate its powers and functions or order the
implementation or enforcement of its orders, rulings, or decisions
through the heads of its field offices.
For purposes of this section, the Commission may avail itself of the
assistance of the Commission on Audit, the Central Bank, the
National Bureau of Investigation, the Bureau of Internal Revenue, the
Armed Forces of the Philippines, the Integrated National Police of the
Philippines, barangay officials, and other agencies of the government.
ARTICLE VIII
POLITICAL PARTIES
Section 60. Political party. - "Political party" or "party", when used in
this Act, means an organized group of persons pursuing the same
ideology, political ideas or platforms of government and includes its
branches and divisions. To acquire juridical personality, quality it for
subsequent accreditation, and to entitle it to the rights and privileges
herein granted to political parties, a political party shall first be duly
registered with the Commission. Any registered political party that,
singly or in coalition with others, fails to obtain at least ten percent of
the votes cast in the constituency in which it nominated and
supported a candidate or candidates in the election next following its
registration shall, after notice and hearing be deemed to have
forfeited such status as a registered political party in such
constituency.
ARTICLE IX
ELIGIBILITY OF CANDIDATES AND CERTIFICATE OF
CANDIDACY
No person shall be eligible for more than one office to be filled in the
same election, and if he files his certificate of candidacy for more than
one office, he shall not be eligible for any of them.
The person filing a certificate of candidacy shall also affix his latest
photograph, passport size; a statement in duplicate containing his
bio-data and program of government not exceeding one hundred
words, if he so desires.
(b) For provincial offices, with the provincial election supervisor of the
province concerned who shall send copies thereof to all polling
places in the province;
(c) For city and municipal offices, with the city or municipal election
registrar who shall send copies thereof to all polling places in the city
or municipality; and
ARTICLE X
CAMPAIGN AND ELECTION PROPAGANDA
(a) The term "candidate" refers to any person aspiring for or seeking
an elective public office, who has filed a certificate of candidacy by
himself or through an accredited political party, aggroupment, or
coalition of parties;
(d) All other forms of election propaganda not prohibited by this Code
as the Commission may authorize after due notice to all interested
parties and hearing where all the interested parties were given an
equal opportunity to be heard: Provided, That the Commission's
authorization shall be published in two newspapers of general
circulation throughout the nation for at least twice within one week
after the authorization has been granted.
(b) To erect, put up, make use of, attach, float or display any
billboard, tinplate-poster, balloons and the like, of whatever size,
shape, form or kind, advertising for or against any candidate or
political party;
(e) For any radio broadcasting or television station to sell or give free
of charge air time for campaign and other political purposes except as
authorized in this Code under the rules and regulations promulgated
by the Commission pursuant thereto.
Any prohibited election propaganda gadget or advertisement shall be
stopped, confiscated or torn down by the representative of the
Commission upon specific authority of the Commission.
Section 92. Comelec time. - The Commission shall procure radio and
television time to be known as "Comelec Time" which shall be
allocated equally and impartially among the candidates within the
area of coverage of all radio and television stations. For this purpose,
the franchise of all radio broadcasting and television station are
hereby amended so as to provide radio television time, free of
charge, during the period of the campaign.
Section 93. Comelec information bulletin. - The Commission shall
cause the printing, and supervise the dissemination of bulletins to be
known as "Comelec Bulletin" which shall be of such size as to
adequately contain the picture, bio-data and program of government
of every candidate. Said bulletin shall be disseminated to the voters
or displayed in such places as to give due prominence thereto. Any
candidate may reprint at his expense, any "Comelec Bulletin" upon
prior authority of the Commission: Provided, That the printing of the
names of the different candidates with their bio-data must be in
alphabetical order irrespective of party affiliation.
ARTICLE XI
ELECTORAL CONTRIBUTIONS AND EXPENDITURES
(d) Natural and juridical persons who have been granted franchises,
incentives, exemptions, allocations or similar privileges or
concessions by the government or any of its divisions, subdivisions or
instrumentalities, including government-owned or controlled
corporations;
(e) Natural and juridical persons who, within one year prior to the date
of the election, have been granted loans or other accommodations in
excess of P100,000 by the government or any of its divisions,
subdivisions or instrumentalities including government-owned or
controlled corporations;
(g) For political meetings and rallies and the use of sound systems,
lights and decorations during said meetings and rallies;
(i) For employment of counsel, the cost of which shall not be taken
into account in determining the amount of expenses which a
candidate or political party may have incurred under Section 100 and
101 hereof;
(k) For printing sample ballots in such color, size and maximum
number as may be authorized by the Commission and the cost of
such printing shall not be taken into account in determining the
amount of expenses which a candidate or political party may have
incurred under Sections 100 and 101 hereof.
(b) Every candidate and treasurer of the party shall keep detailed, full,
and accurate records of all contributions received and expenditures
incurred by him and by those acting under his authority, setting forth
therein all information required to be reported.
(c) Every candidate and treasurer of the party shall be responsible for
the preservation of the records of contributions and expenditures,
together with all pertinent documents, for at least three years after the
holding of the election to which they pertain and for their production
for inspection by the Commission or its duly authorized
representative, or upon presentation of a subpoena duces tecum duly
issued by the Commission. Failure of the candidate or treasurer to
preserve such records or documents shall be deemed prima facie
evidence of violation of the provisions of this Article.
Within thirty days after the day of the election, said candidate and
treasurer shall also file in duplicate a supplemental statement of all
contribution and expenditures not included in the statement filed prior
to the day of the election.
(d) Those of candidates for city, municipal and barangay offices, with
the election registrar concerned.
The same prohibition shall apply if the political party which nominated
the winning candidate fails to file the statements required herein
within the period prescribed by this Code.
ARTICLE XII
REGISTRATION OF VOTERS
Section 116. Who may be registered in the list. - All persons having
complied with the requisites herein prescribed for the registration of
voters shall be registered in the list, provided they possess all the
qualifications and none of the disqualifications of a voter. Those who
failed to register in the election of 1984, for any reason whatsoever,
may register in accordance with the provisions of this Code. Any
person who may not have on the date of registration the age or
period of residence required may also be registered upon proof that
on the date of the election, plebiscite or referendum he shall have
such qualifications.
(a) Any person who has been sentenced by final judgment to suffer
imprisonment for not less than one year, such disability not having
been removed by plenary pardon or granted amnesty: Provided,
however, That any person disqualified to vote under this paragraph
shall automatically reacquire the right to vote upon expiration of five
years after service of sentence.
Should the board fail to include in the list of voters any person
ordered by competent court to be so included, said person shall,
upon presentation of a certified copy of the order of inclusion and
upon proper identification, be allowed by the board to vote.
Should the board fail to exclude from the list of voters any person
ordered by the court to be so excluded, the board shall not permit
said person to vote upon presentation to it by any interested party of
a certified copy of the order of exclusion.
(c) Citizenship;
(f) A statement that the applicant has not been previously registered,
otherwise he shall be required to attach a sworn application for
cancellation of his previous registration; and
legible prints of his left and right hand thumbmarks and shall be
sworn to and filed together with four copies of the latest identification
photograph to be supplied by the applicant.
The oath of the applicant shall include a statement that he does not
have any of the disqualifications of a voter and that he has not been
previously registered in the precinct or in any other precinct.
Each identification card shall bear the name and the address of the
voter, his date of birth, sex, civil status, occupation, his photograph,
thumbmark, the city or municipality and number of the polling place
where he is registered, his signature, his voter serial number and the
signature of the chairman of the board of election inspectors.
Section 133. Columns in the list of voters. - The list of voters shall be
arranged in columns as follows: In the first column there shall be
entered, at the time of closing of the list before the election, a number
opposite the name of each voter registered, beginning with number
one and continuing in consecutive order until the end of the list. In the
second column, the surnames of the registered voters shall be written
in alphabetical order followed by their respective first names, without
abbreviations of any kind. In the third column, the respective
residences of such persons with the name of the street and number,
or, in case there be none, a brief description of the locality or place. In
the fourth column, shall be entered the periods of residence in the
Philippines and in the city or municipality. In the fifth column, there
shall be entered on the day of the election the numbers of the ballots
which were given successively to each voter. In the sixth column, the
voter shall stamp on the day of the election the mark of the thumb of
his right hand and under said mark his signature. And in the seventh
column, the signature of the chairman of the board of election
inspectors who has handed the ballot to the voter. It will be sufficient
that the fifth, sixth, and seventh columns shall be filled in the copy of
the list under the custody of the board of election inspectors which
shall see to it that the thumbmark is stamped plainly.
Section 135. Publication of the list. - At the first hour of the working
day following the last day of registration of voters, the poll clerk shall
deliver to the election registrar a copy of the list certified to by the
board of election inspectors as provided in the preceding section;
another copy, also certified, shall be sent to the provincial election
supervisor of the province, and another, likewise certified, shall be
sent to the Commission, in whose offices said copies shall be open to
public inspection during regular office hours. On the same day and
hour, the poll clerk shall also post a copy of the list in the polling place
in a secure place on the door or near the same at a height of a meter
and a half, where it may be conveniently consulted by the interested
parties. The chairman, poll clerk and the two members of the board of
election inspectors shall each keep a copy of the list which may be
inspected by the public in their residence or office during regular
office hours. Immediately after the meeting for the closing of the list,
the poll clerk shall also send a notice to the election registrar,
provincial election supervisor and the Commission regarding the
changes and the numbering above referred to, to be attached to the
copy of the list under their custody.
After the question has been decided, the board of election inspectors
shall give to each party a brief certified statement setting forth the
challenge and the decision thereon.
Section 139. Petition for inclusion of voters in the list. - Any person
whose application for registration has been disapproved by the board
of election inspectors or whose name has been stricken out from the
list may apply, within twenty days after the last registration day, to the
proper municipal or metropolitan trial court, for an order directing the
board of election inspectors to include or reinstate his name in the
list, together with the certificate of the board of election inspectors
regarding his case and proof of service of notice of his petition upon a
member of the board of election inspectors with indication of the time,
place, and court before which the petition is to be heard.
Section 142. Petition for exclusion of voters from the list. - Any
registered voter in a city or municipality may apply at any time except
during the period beginning with the twenty-first day after the last
registration day of any election up to and including election day with
the proper municipal or metropolitan trial court, for the exclusion of a
voter from the list, giving the name and residence of the latter, the
precinct in which he is registered, and the grounds for the challenge.
The petition shall be sworn to and accompanied by proof of notice to
the board of election inspectors concerned, if the same is duly
constituted, and to the challenged voters.
(g) These applications shall be heard and decided without delay. The
decision shall be rendered within six hours after the hearing and
within ten days from the date of its filing in court. Cases appealed to
the regional trial court shall be decided within ten days from receipt of
the appeal in the office of the clerk of court. In any case, the court
shall decide these petitions not later than the day before the election
and the decision rendered thereon shall be immediately final and
executory, notwithstanding the provisions of Section 138 on the
finality of decisions.
Section 148. List of voters. - Fifteen days before the date of the
regular election or special election, referendum or plebiscite, the
board of election inspectors must post the final list of voters in each
precinct with each and every page thereof duly signed or subscribed
and sworn to by the members of the board of election inspectors and
that failure to comply with this provision will constitute an election
offense.
ARTICLE XIII
PRECINCTS AND POLLING PLACES
Section 149. Precincts and their establishment. - The unit of territory
for the purpose of voting is the election precinct, and every barangay
as of the approval of this Act shall have at least one such precinct.
(a) Each election precinct shall have, as far as possible not more than
three hundred voters and shall comprise, as far as practicable,
contiguous and compact territory.
(d) An island or group of islands having one hundred and fifty or more
voters shall constitute a precinct.
These maps shall be kept posted until after the election, referendum
or plebiscite.
Section 156. Signs and flags of polling places. - On the day of the
voting as well as on any day that the board of election inspectors
might meet, every polling place shall have in front a sign showing the
number of the precinct to which it belongs and the Philippine flag
shall be hoisted at the proper height.
Section 157. Arrangement and contents of polling places. - Each
polling place shall conform as much as possible to the sketch on the
following page.
Section 158. Voting booth. - During the voting, there shall be in each
polling place a booth for every twenty voters registered in the
precinct. Each booth shall be open on the side fronting the table for
the board of election inspectors and its three sides shall be closed
with walls at least seventy centimeters wide and two meters high. The
upper part shall be covered, if necessary, to preserve the secrecy of
the ballot. Each booth shall have in the background a shelf so placed
that voters can write therein while standing and shall be kept clearly
lighted, by artificial lights, if necessary, during the voting.
The Commission shall post inside each voting booth and elsewhere
in the polling place on the day before the election, referendum and
plebiscite a list containing the names of all the candidates or the
issues or questions to be voted for, and shall at all times during the
voting period keep such list posted in said places.
(a) In every polling place there shall be a guard rail between the
voting booths and the table for the board of election inspectors which
shall have separate entrance and exit. The booths shall be so
arranged that they can be accessible only by passing through the
guard rail and by entering through its open side facing the table of the
board of election inspectors.
(b) There shall also be a guard rail for the watchers between the
place reserved for them and the table for the board of election
inspectors and at a distance of not more than fifty centimeters from
the latter so that the watchers may see and read clearly during the
counting of the contents of the ballots and see and count the votes
recorded by the board of election inspectors member on the
corresponding tally sheets.
(c) There shall also be, if possible, guard rails separating the table of
the board of election inspectors from the voters waiting for their turn
to cast their votes, with entrance and exit to give them orderly access
to the table and the booths during the voting.
(d) The polling place shall be so arranged that the booths, the table,
the ballot boxes and the whole polling place, except what is being
written within the booths, shall be in plain view of the board of
election inspectors, the watchers and other persons who may be
within the polling place.
(a) There shall be in each polling place on the day of the voting a
ballot box one side of which shall be transparent which shall be set in
a manner visible to the voting public containing two compartments,
namely, the compartment for valid ballots which is indicated by an
interior cover painted white and the compartment for spoiled ballots
which is indicated by an interior cover painted red. The boxes shall be
uniform throughout the Philippines and shall be solidly constructed
and shall be closed with three different locks as well as three
numbered security locks and such other safety devices as the
Commission may prescribe in such a way that they can not be
opened except by means of three distinct keys and by destroying
such safety devices.
ARTICLE XIV
BOARD OF ELECTION INSPECTORS
ARTICLE XV
WATCHERS
Section 181. Official ballots. - Ballots for national and local offices
shall be of uniform size and color and shall be provided at public
expense. They shall be printed on paper with watermarks or other
marks that will readily distinguish the ballot paper from ordinary
paper. Each ballot shall be in the shape of a strip with stub and
detachable coupon containing the serial number of the ballot, and a
space for the thumbmark of the voter on the detachable coupon. It
shall bear at the top on the middle portion thereof the coat of arms of
the Republic of the Philippines, the words "Official Ballot", the name
of the city or the municipality and province in which the election is
held, the date of the election, and the following notice: "Fill out this
ballot secretly inside the voting booth. Do not put any distinctive mark
on any part of this ballot."
The ballot shall also contain the names of all the offices to be voted
for in the election, allowing opposite the name of each office,
sufficient space or spaces with horizontal lines where the voter may
write the name or names of the individual candidates voted for by
him.
The election returns shall be prepared in sets of six copies per set
and shall be numbered consecutively, beginning with number "1" in
each city and municipality. Each set of the election returns shall be
printed in such a manner that will ensure that the entries on the
original of the returns are clearly reproduced on the other copies
thereof and shall bear the name of the city or municipality in which
the returns are to be used. For this purposes, the Commission shall
acquire, if necessary, a special kind of carbon paper or chemically
treated paper.
ARTICLE XVII
CASTING OF VOTES
Section 190. Voting hours. - The casting of votes shall start at seven
o'clock in the morning and shall end at three o'clock in the afternoon,
except when there are voters present within thirty meters in front of
the polling place who have not yet cast their votes, in which case the
voting shall continue but only to allow said voters to cast their votes
without interruption. The poll clerk shall, without delay, prepare a
complete list containing the names of said voters consecutively
numbered, and the voters so listed shall be called to vote by
announcing each name repeatedly three times in the order in which
they are listed. Any voter in the list who is not present when his name
is called out shall not be permitted to vote.
(a) The board of election inspectors shall meet at the polling place at
six-thirty o'clock in the morning of election day and shall have the
book of voters containing all the approved applications of registration
of voters pertaining to the polling place, the certified list of voters, the
certified list of candidates, the ballot box, the official ballots, sufficient
indelible pencils or ball pens for the use of the voters, the forms to be
used, and all other materials which may be necessary.
(d) The chairman and the two party members of the board of election
inspectors shall retain in their possession their respective keys to the
padlocks during the voting.
(e) The box shall remain locked until the voting is finished and the
counting begins. However, if it should become necessary to make
room for more ballots, the board of election inspectors may open the
box in the presence of the whole board of election inspectors and the
watchers, and the chairman shall press down with his hands the
ballots contained therein without removing any of them, after which
the board of election inspectors shall close the box and lock it with
three padlocks as hereinbefore provided.
Section 193. Order of voting. - The voters shall vote in the order of
their entrance into the polling place. The voters shall have the right to
freely enter the polling place as soon as they arrive unless there are
voters waiting inside, in which case they shall fall in line in the order
of their arrival and shall not crowd around the table of the board of
election inspectors. The voters after having cast their votes shall
immediately depart.
Section 194. Manner of obtaining ballots. - The voter shall approach
the chairman and shall give his name and address together with other
data concerning his person. In case any member of the board of
election inspectors doubts the identity of the voter, the board of
election inspectors shall check his voter's identification card or, if he
does not have any, the board of election inspectors shall refer to his
photograph and signature in the voter's application for registration. If
the board of election inspectors is satisfied with his identity, the
chairman shall distinctly announce the voter's name in a tone loud
enough to be plainly heard throughout the polling place. If such voter
has not been challenged, or if having been challenged, the question
has been decided in his favor, the voter shall forthwith affix his
signature in the proper space in the voting record, and the chairman
shall, after first entering the number of the ballot in the corresponding
space of the voting record, deliver to the voter one ballot correctly
folded. No person other than the chairman shall deliver official ballots
nor shall more than one ballot be delivered at one time.
The spoiled ballot shall, without being unfolded and without removing
the detachable coupon, be distinctly marked with the word "spoiled"
and signed by the board of election inspectors on the endorsement
fold thereof and immediately placed in the compartment for spoiled
ballots.
(a) After the voter has filled his ballot he shall fold it in the same
manner as when he received it and return it to the chairman.
(d) The voter shall fortwith affix his thumbmark by the side of his
signature in the space intended for that purpose in the voting record
and the chairman shall apply silver nitrate and commassie blue on
the right forefinger nail or on any other available finger nail, if there be
no forefinger nail.
(e) The chairman shall sign in the proper space beside the
thumbmark of the voter.
(a) Any voter, or watcher may challenge any person offering to vote
for not being registered, for using the name of another or suffering
from existing disqualification. In such case, the board of election
inspectors shall satisfy itself as to whether or not the ground for the
challenge is true by requiring proof of registration or the identity of the
voter; and
(b) No voter shall be required to present his voter's affidavit on
election day unless his identity is challenged. His failure or inability to
produce his voter's affidavit upon being challenged, shall not preclude
him from voting if his identity be shown from the photograph,
fingerprints, or specimen signatures in his approved application in the
book of voters or if he is identified under oath by a member of the
board of election inspectors and such identification shall be reflected
in the minutes of the board.
Section 202. Record of challenges and oaths. - The poll clerk shall
keep a prescribed record of challenges and oaths taken in connection
therewith and the resolution of the board of election inspectors in
each case and, upon the termination of the voting, shall certify that it
contains all the challenges made. The original of this record shall be
attached to the original copy of the minutes of the voting as provided
in the succeeding section.
Section 203. Minutes of voting and counting of votes. - The board of
election inspectors shall prepare and sign a statement in four copies
setting forth the following:
3. The number of official ballots used and the number left unused;
15. The time the election returns were signed and sealed in their
respective special envelopes;
ARTICLE XVIII
COUNTING OF VOTES
Each vote shall be recorded by a vertical line, except every fifth vote
which shall be recorded by a diagonal line crossing the previous four
vertical lines. One party member shall see to it that the chairman
reads the vote as written on the ballot, and the other shall check the
recording of the votes on the tally board or sheet and the election
returns seeing to it that the same are correctly accomplished. After
finishing the first pile of ballots, the board of election inspectors shall
determine the total number of votes recorded for each candidate, the
sum being noted on the tally board or sheet and on the election
returns. In case of discrepancy such recount as may be necessary
shall be made. The ballots shall then be grouped together again as
before the reading. Thereafter, the same procedure shall be followed
with the second pile of ballots and so on successively. After all the
ballots have been read, the board of election inspectors shall sum up
the totals recorded for each candidate, and the aggregate sum shall
be recorded both on the tally board or sheet and on the election
returns. It shall then place the counted ballots in an envelope
provided for the purpose, which shall be closed signed and deposited
in the compartment for valid ballots. The tally board or sheet as
accomplished and certified by the board of election inspectors shall
not be changed or destroyed but shall be kept in the compartment for
valid ballots.
Section 211. Rules for the appreciation of ballots. - In the reading and
appreciation of ballots, every ballot shall be presumed to be valid
unless there is clear and good reason to justify its rejection. The
board of election inspectors shall observe the following rules, bearing
in mind that the object of the election is to obtain the expression of
the voter's will:
When two or more words are written on different lines on the ballot all
of which are the surnames of two or more candidates bearing the
same surname for an office for which the law authorizes the election
of more than one and there are the same number of such surnames
written as there are candidates with that surname, the vote shall be
counted in favor of all the candidates bearing the surname.
5. When on the ballot is written a single word which is the first name
of a candidate and which is at the same time the surname of his
opponent, the vote shall be counted in favor of the latter.
6. When two words are written on the ballot, one of which is the first
name of the candidate and the other is the surname of his opponent,
the vote shall not be counted for either.
10. The erroneous initial of the first name which accompanies the
correct surname of a candidate, the erroneous initial of the surname
accompanying the correct first name of a candidate, or the erroneous
middle initial of the candidate shall not annul the vote in favor of the
latter.
11. The fact that there exists another person who is not a candidate
with the first name or surname of a candidate shall not prevent the
adjudication of the vote of the latter.
12. Ballots which contain prefixes such as "Sr.", "Mr.", "Datu", "Don",
"Ginoo", "Hon.", "Gob." or suffixes like "Hijo", "Jr.", "Segundo", are
valid.
14. Any vote containing initials only or which is illegible or which does
not sufficiently identify the candidate for whom it is intended shall be
considered as a stray vote but shall not invalidate the whole ballot.
15. If on the ballot is correctly written the first name of a candidate but
with a different surname, or the surname of the candidate is correctly
written but with different first name, the vote shall not be counted in
favor of any candidate having such first name and/or surname but the
ballot shall be considered valid for other candidates.
16. Any ballot written with crayon, lead pencil, or in ink, wholly or in
part, shall be valid.
17. Where there are two or more candidates voted for in an office for
which the law authorizes the election of only one, the vote shall not
be counted in favor of any of them, but this shall not affect the validity
of the other votes therein.
19. Any vote in favor of a person who has not filed a certificate of
candidacy or in favor of a candidate for an office for which he did not
present himself shall be considered as a stray vote but it shall not
invalidate the whole ballot.
21. Circles, crosses or lines put on the spaces on which the voter has
not voted shall be considered as signs to indicate his desistance from
voting and shall not invalidate the ballot.
22. Unless it should clearly appear that they have been deliberately
put by the voter to serve as identification marks, commas, dots, lines,
or hyphens between the first name and surname of a candidate, or in
other parts of the ballot, traces of the letter "T", "J", and other similar
ones, the first letters or syllables of names which the voter does not
continue, the use of two or more kinds of writing and unintentional or
accidental flourishes, strokes, or strains, shall not invalidate the
ballot.
23. Any ballot which clearly appears to have been filled by two
distinct persons before it was deposited in the ballot box during the
voting is totally null and void.
24. Any vote cast in favor of a candidate who has been disqualified
by final judgment shall be considered as stray and shall not be
counted but it shall not invalidate the ballot.
26. The accidental tearing or perforation of a ballot does not annul it.
27. Failure to remove the detachable coupon from a ballot does not
annul such ballot.
28. A vote for the President shall also be a vote for the Vice-President
running under the same ticket of a political party, unless the voter
votes for a Vice-President who does not belong to such party.
The returns shall also show the date of the election, the polling place,
the barangay and the city of municipality in which it was held, the total
number of ballots found in the compartment for valid ballots, the total
number of valid ballots withdrawn from the compartment for spoiled
ballots because they were erroneously placed therein, the total
number of excess ballots, the total number of marked or void ballots,
and the total number of votes obtained by each candidate, writing out
the said number in words and figures and, at the end thereof, the
board of election inspectors shall certify that the contents are correct.
The returns shall be accomplished in a single sheet of paper, but if
this is not possible, additional sheets may be used which shall be
prepared in the same manner as the first sheet and likewise certified
by the board of election inspectors.
The Commission shall take steps so that the entries on the first copy
of the election returns are clearly reproduced on the second, third,
fourth, fifth, and sixth copies thereof, and for this purpose the
Commission shall use a special kind of paper.
(3) In local elections: the original copy of the election returns shall be
delivered to the city or municipal board of canvassers as a body for
its use in the city of municipal canvass. The second copy shall be
delivered to the election registrar of the city or municipality for
transmittal to the provincial board of canvassers as a body for its use
in the provincial canvass. The third copy shall likewise be delivered to
the election registrar for transmittal to the Commission. The fourth
copy shall be deposited in the compartment for valid ballots. The fifth
and sixth copies shall each respectively be delivered to the members
representing the political parties represented in the board of election
inspectors.
The Commission shall promulgate rules for the speedy and safe
delivery of the election returns.
Section 215. Board of election inspectors to issue a certificate of the
number of votes polled by the candidates for an office to the
watchers. - After the announcement of the results of the election and
before leaving the polling place, it shall be the duty of the board of
election inspectors to issue a certificate of the number of the votes
received by a candidate upon request of the watchers. All the
members of the board of election inspectors shall sign the certificate.
Section 217. Delivery of the ballot boxes, keys and election supplies
and documents. - Upon the termination of the counting of votes, the
board of election inspectors shall place in the compartment for valid
ballots, the envelopes for used ballots hereinbefore referred to, the
unused ballots, the tally board or sheet, a copy of the election returns,
and the minutes of its proceedings, and then shall lock the ballot box
with three padlocks and such safety devices as the Commission may
prescribe. Immediately after the box is locked, the three keys of the
padlocks shall be placed in three separate envelopes and shall be
sealed and signed by all the members of the board of election
inspectors.
The ballot box, all supplies of the board of election inspectors and all
pertinent papers and documents shall immediately be delivered by
the board of election inspectors and the watchers to the city or
municipal treasurer who shall keep his office open all night on the day
of election if necessary for this purpose, and shall provide the
necessary facilities for said delivery at the expense of the city or
municipality. The book of voters shall be returned to the election
registrar who shall keep it under his custody. The treasurer and the
election registrar, as the case may be, shall on the day after the
election require the members of the board of election inspectors who
failed to send the objects referred to herein to deliver the same to him
immediately and acknowledge receipt thereof in detail.
(a) The provincial election supervisor, the provincial treasurer and the
provincial fiscal shall keep the envelope containing the keys in their
possession intact during the period of three months following the
election. Upon the lapse of this period, unless the Commission has
ordered otherwise, the provincial election supervisor and the
provincial fiscal shall deliver to the provincial treasurer the envelope
containing the keys under their custody.
(b) The city and municipal treasurer shall keep the ballot boxes under
their responsibility for three months and stored unopened in a secure
place, unless the Commission orders otherwise whenever said ballot
boxes are needed in any political exercise which might be called
within the said period, provided these are not involved in any election
contest or official investigation, or the Commission or other
competent authority shall demand them sooner or shall order their
preservation for a longer time in connection with any pending contest
or investigation. However, upon showing by any candidate that the
boxes will be in danger of being violated if kept in the possession of
such officials, the Commission may order them kept by any other
official whom it may designate. Upon the lapse of said time and if
there should be no order to the contrary, the Commission may
authorize the city and municipal treasurer in the presence of its
representative to open the boxes and burn their contents, except the
copy of the minutes of the voting and the election returns deposited
therein which they shall take and keep.
ARTICLE XIX
CANVASS AND PROCLAMATION
(a) For the city and municipal board of canvassers, the copy of the
election returns of a polling place intended for the city or municipal
board of canvassers, duly placed inside a sealed envelope signed
and affixed with the imprint of the thumb of the right hand of all the
members of the board of election inspectors, shall be personally
delivered by the members of the board of election inspectors to the
city or municipal board of canvassers under proper receipt to be
signed by all the members thereof.
(b) For the provincial and district boards of canvassers in
Metropolitan Manila, the copy of the election returns of a polling place
intended for the provincial or district board of canvassers in the case
of Metropolitan Manila, shall be personally delivered by the members
of the board of election inspectors to the election registrar for
transmittal to the proper board of canvassers under proper receipt to
be signed by all the members thereof.
The election registrar concerned shall place all the returns intended
for the board of canvassers inside a ballot box provided with three
padlocks whose keys shall be kept as follows: one by the election
registrar, another by the representative of the ruling party and the
third by the representative of the dominant political opposition party.
For this purpose, the two political parties shall designate their
representatives whose names shall be submitted to the election
registrar concerned on or before the tenth day preceding the election.
The three in possession of the keys shall personally transmit the
ballot box, properly locked, containing the election returns to the
board of canvassers. Watchers of political parties, coalition of political
parties, and of organizations collectively authorized by the
Commission to designate watchers shall have the right to accompany
transmittal of the ballot boxes containing the election returns.
The board of canvassers, notwithstanding the fact that not all the
election returns have been received by it, may terminate the canvass
and proclaim the candidates elected on the basis of the available
election returns if the missing election returns will not affect the
results of the election.
ARTICLE XX
PRE-PROCLAMATION CONTROVERSIES
ARTICLE XXI
ELECTION CONTESTS
Section 253. Petition for quo warranto. - Any voter contesting the
election of any Member of the Batasang Pambansa, regional,
provincial, or city officer on the ground of ineligibility or of disloyalty to
the Republic of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after the proclamation
of the results of the election.
(b) The protestee shall answer the protest within five days after
receipt of the summons, or, in case there has been no summons from
the date of his appearance and in all cases before the
commencement of the hearing of the protest or contest. The answer
shall deal only with the election in the polling places which are
covered by the allegations of the contest;
(c) Should the protestee desire to impugn the votes received by the
protestant in other polling places, he shall file a counter-protest within
the same period fixed for the answer serving a copy thereof upon the
protestant by registered mail or by personal delivery or through the
sheriff;
(d) The protestant shall answer the counter-protest within five days
after notice;
(e) Within the period of five days counted from the filing of the protest
any other candidate for the same office may intervene in the case as
other contestants and ask for affirmative relief in his favor by a
petition in intervention, which shall be considered as another contest,
except that it shall be substantiated within the same proceedings. The
protestant or protestee shall answer the protest in intervention within
five days after notice;
(f) If no answer shall be filed to the contest, counter-protest, or to the
protest in intervention, within the time limits respectively fixed, a
general denial shall be deemed to have been entered;
251 and paragraph two, Section 253 hereof with respect to quo
warranto petitions filed in election contests affecting municipal
officers, the aggrieved party may appeal to the Intermediate Appellate
Court within five days after receipt of a copy of the decision. No
motion for reconsideration shall be entertained by the court. The
appeal shall be decided within sixty days after the case has been
submitted for decision.
ARTICLE XXII
ELECTION OFFENSES
(p) Deadly weapons. - Any person who carries any deadly weapon in
the polling place and within a radius of one hundred meters thereof
during the days and hours fixed by law for the registration of voters in
the polling place, voting, counting of votes, or preparation of the
election returns. However, in cases of affray, turmoil, or disorder, any
peace officer or public officer authorized by the Commission to
supervise the election is entitled to carry firearms or any other
weapon for the purpose of preserving order and enforcing the law.
(r) Use of armored land, water or air craft. - Any person who uses
during the campaign period, on the day before and on election day,
any armored land, water or air craft, provided with any temporary or
permanent equipment or any other device or contraption for the
mounting or installation of cannons, machine guns and other similar
high caliber firearms, including military type tanks, half trucks, scout
trucks, armored trucks, of any make or model, whether new,
reconditioned, rebuilt or remodelled: Provided, That banking or
financial institutions and all business firms may use not more than
two armored vehicles strictly for, and limited to, the purpose of
transporting cash, gold bullion or other valuables in connection with
their business from and to their place of business, upon previous
authority of the Commission.
During the same period, and ending thirty days thereafter any
member of the Armed Forces of the Philippines, special, forces,
home defense forces, barangay self-defense units and all other para-
military units that now exist or which may hereafter be organized who
wears his uniform or bears arms outside the camp, garrison or
barracks to which he is assigned or detailed or outside their homes,
in case of members of para-military units, unless (1) the President of
the Philippines shall have given previous authority therefor, and the
Commission notified thereof in writing, or (2) the Commission
authorizes him to do so, which authority it shall give only when
necessary to assist it in maintaining free, orderly and honest
elections, and only after notice and hearing. All personnel of the
Armed Forces authorized by the President or the Commission to bear
arms or wear their uniforms outside their camps and all police and
peace officers shall bear their true name, rank and serial number, if
any, stitched in block letters on a white background on the left breast
of their uniform, in letters and numbers of a clearly legible design at
least two centimeters tall, which shall at all times remain visible and
uncovered.
During the election period, whenever the Commission finds it
necessary for the promotion of free, orderly, honest and peaceful
elections in a specific area, it shall confiscate or order the
confiscation of firearms of any member or members of the Armed
Forces of the Philippines, police forces, home defense forces,
barangay self-defense units, and all other para-military units that now
exist, or which may hereafter be organized, or any member or
members of the security or police organization, government
ministries, commissions, councils, bureaus, offices, instrumentalities,
or government-owned or controlled corporations and other
subsidiaries, or of any member or members of privately owned or
operated security, investigative, protective or intelligence agencies
performing identical or similar functions.
(1) Any and all kinds of public works, except the following:
(c) Payment for the usual cost of preparation for working drawings,
specifications, bills of materials, estimates, and other procedures
preparatory to actual construction including the purchase of materials
and equipment, and all incidental expenses for wages of watchmen
and other laborers employed for such work in the central office and
field storehouses before the beginning of such period: Provided, That
the number of such laborers shall not be increased over the number
hired when the project or projects were commenced; and
(2) The Ministry of Social Services and Development and any other
office in other ministries of the government performing functions
similar to said ministry, except for salaries of personnel, and for such
other routine and normal expenses, and for such other expenses as
the Commission may authorize after due notice and hearing. Should
a calamity or disaster occur, all releases normally or usually coursed
through the said ministries and offices of other ministries shall be
turned over to, and administered and disbursed by, the Philippine
National Red Cross, subject to the supervision of the Commission on
Audit or its representatives, and no candidate or his or her spouse or
member of his family within the second civil degree of affinity or
consanguinity shall participate, directly or indirectly, in the distribution
of any relief or other goods to the victims of the calamity or disaster;
and
(3) The Ministry of Human Settlements and any other office in any
other ministry of the government performing functions similar to said
ministry, except for salaries of personnel and for such other
necessary administrative or other expenses as the Commission may
authorize after due notice and hearing.
(1) Any person who, having all the qualifications and none of the
disqualifications of a voter, fails without justifiable excuse to register
as a voter in an election, plebiscite or referendum in which he is
qualified to vote.
(4) Any member of the board of election inspectors who approves any
application which on its face shows that the applicant does not
possess all the qualifications prescribed by law for a voter; or who
disapproves any application which on its face shows that the
applicant possesses all such qualifications.
(5) Any person who, being a registered voter, registers anew without
filing an application for cancellation of his previous registration.
(6) Any person who registers in substitution for another whether with
or without the latter's knowledge or consent.
(7) Any person who tampers with or changes without authority any
data or entry in any voter's application for registration.
(10) Any person who uses the voter's affidavit of another for the
purpose of voting, whether or not he actually succeeds in voting.
(14) Any person who delivers, hands over, entrusts, gives, directly or
indirectly his voter's affidavit to another in consideration of money or
other benefit or promises thereof, or takes or accepts such voter's
affidavit directly or indirectly, by giving or causing the giving of money
or other benefit or making or causing the making of a promise
thereof.
(15) Any person who alters in any manner, tears, defaces, removes
or destroys any certified list of voters.
(z) On voting:
(1) Any person who fails to cast his vote without justifiable excuse.
(2) Any person who votes more than once in the same election, or
who, not being a registered voter, votes in an election.
(3) Any person who votes in substitution for another whether with or
without the latter's knowledge and/or consent.
(4) Any person who, not being illiterate or physically disabled, allows
his ballot to be prepared by another, or any person who prepares the
ballot of another who is not illiterate or physically disabled, with or
without the latter's knowledge and/or consent.
(5) Any person who avails himself of any means of scheme to
discover the contents of the ballot of a voter who is preparing or
casting his vote or who has just voted.
(6) Any voter who, in the course of voting, uses a ballot other than the
one given by the board of election inspectors or has in his possession
more than one official ballot.
(7) Any person who places under arrest or detains a voter without
lawful cause, or molests him in such a manner as to obstruct or
prevent him from going to the polling place to cast his vote or from
returning home after casting his vote, or to compel him to reveal how
he voted.
(8) Any member of the board of election inspectors charged with the
duty of reading the ballot during the counting of votes who
deliberately omits to read the vote duly written on the ballot, or
misreads the vote actually written thereon or reads the name of a
candidate where no name is written on the ballot.
(9) Any member of the board of election inspectors charged with the
duty of tallying
(11) Any person who, for the purpose of disrupting or obstructing the
election process or causing confusion among the voters, propagates
false and alarming reports or information or transmits or circulates
false orders, directives or messages regarding any matter relating to
the printing of official ballots, the postponement of the election, the
transfer of polling place or the general conduct of the election.
(13) Any person having legal custody of the ballot box containing the
official ballots used in the election who opens or destroys said box or
removes or destroys its contents without or against the order of the
Commission or who, through his negligence, enables any person to
commit any of the aforementioned acts, or takes away said ballot box
from his custody.
(16) Any person who reveals the contents of the ballot of an illiterate
or disabled voter whom he assisted in preparing a ballot.
(18) Any person who, without authority, prints or causes the printing
of any ballot or election returns that appears as official ballots or
election returns or who distributes or causes the same to be
distributed for use in the election, whether or not they are actually
used.
(19) Any person who, without authority, keeps, uses or carries out or
causes to be kept, used or carried out, any official ballot or election
returns or printed proof thereof, type-form mould, electro-type printing
plates and any other plate, numbering machines and other printing
paraphernalia being used in connection with the printing of official
ballots or election returns.
(21) Any person who, through any act, means or device, violates the
integrity of any official ballot or election returns before or after they
are used in the election.
(24) Any person who deliberately blurs his fingerprint in the voting
record.
(aa) On Canvassing:
(1) Any chairman of the board of canvassers who fails to give due
notice of the date, time and place of the meeting of said board to the
candidates, political parties and/or members of the board.
(2) Any member of the board of canvassers who proceeds with the
canvass of the votes and/or proclamation of any candidate which was
suspended or annulled by the Commission.
(3) Any member of the board of canvassers who proceeds with the
canvass of votes and/or proclamation of any candidate in the
absence of quorum, or without giving due notice of the date, time and
place of the meeting of the board to the candidates, political parties,
and/or other members of the board.
(4) Any member of the board of canvassers who, without authority of
the Commission, uses in the canvass of votes and/or proclamation of
any candidate any document other than the official copy of the
election returns.
(4) Any person who, in the presence or within the hearing of any
board of election inspectors or board of canvassers during any of its
meetings, conducts himself in such a disorderly manner as to
interrupt or disrupt the work or proceedings to the end of preventing
said body from performing its functions, either partly or totally.
(5) Any public official or person acting in his behalf who relieves any
member of any board of election inspectors or board of canvassers or
who changes or causes the change of the assignments of any
member of said board of election inspectors or board of canvassers
without authority of the Commission.
(1) Any person who sells, furnishes, offers, buys, serves or takes
intoxicating liquor on the days fixed by law for the registration of
voters in the polling place, or on the day before the election or on
election day: Provided, That hotels and other establishments duly
certified by the Ministry of Tourism as tourist oriented and habitually
in the business of catering to foreign tourists may be exempted for
justifiable reasons upon prior authority of the Commission: Provided,
further, That foreign tourists taking intoxicating liquor in said
authorized hotels or establishments are exempted from the provisions
of this subparagraph.
(2) Any person who opens in any polling place or within a radius of
thirty meters thereof on election day and during the counting of votes,
booths or stalls of any kind for the sale, dispensing or display of
wares, merchandise or refreshments, whether solid or liquid, or for
any other purposes.
(3) Any person who holds on election day, fairs, cockfights, boxing,
horse races, jai-alai or any other similar sports.
Any officer or a person who shall violate any provision of this section
shall be punished by imprisonment of not less than six (6) years and
one (1) day nor more than twelve (12) years, with the accessory
penalties for election offenses. The provision of Section 267 of this
Code shall not apply to prosecution under this section.
Section 268. Jurisdiction of courts. - The regional trial court shall have
the exclusive original jurisdiction to try and decide any criminal action
or proceedings for violation of this Code, except those relating to the
offense of failure to register or failure to vote which shall be under the
jurisdiction of the metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal cases.
Section 269. Preferential disposition of election offenses. - The
investigation and prosecution of cases involving violations of the
election laws shall be given preference and priority by the
Commission on Elections and prosecuting officials. Their
investigation shall be commenced without delay, and shall be
resolved by the investigating officer within five days from its
submission for resolution. The courts shall likewise give preference to
election offenses over all other cases, except petitions for writ of
habeas corpus. Their trial shall likewise be commenced without
delay, and shall be conducted continuously until terminated, and the
case shall be decided within thirty days from its submission for
decision.
ARTICLE XXIII
LEGAL FEES
(e) For every search of any record of more than one year's standing
and reading the same 10.00
The chairman and the poll clerk of the board of election inspectors
shall receive per diem at the rate of one hundred pesos on election
day and fifty pesos on each of the registration and revision days. The
inspectors of the political parties shall be granted a per diem of fifty
pesos on election day and twenty-five pesos on each of the
registration and revision days. Education support personnel of the
Ministry of Education, Culture and Sports shall receive a per diem of
twenty-five pesos during election day.
The Acting President may not declare martial law or suspend the
privilege of the writ of habeas corpus without the prior consent of at
least a majority of all the Members of the Batasang Pambansa, or
issue any decree, order or letter of instructions while the lawmaking
power of the President is in force. He shall be deemed automatically
on leave and the Speaker Pro-Tempore shall act as Speaker. While
acting as President, the Speaker may not be removed. He shall not
be eligible for election in the immediately succeeding election for
President and Vice-President.
ARTICLE XXV
FINAL PROVISIONS
Section 283. Effectivity. - This Code shall take effect upon its
approval.