EN BANC [G.R. No.

166715, August 14, 2008] ABAKADA GURO PARTY LIST (FORMERLY AASJS) * OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE AND EDWIN R. SANDOVAL, PETITIONERS, VS. HON. CESAR V. PURISIMA, IN HIS CAPACITY AS SECRETARY OF FINANCE, HON. GUILLERMO L. PARAYNO, JR., IN HIS CAPACITY AS COMMISSIONER OF THE BUREAU OF INTERNAL REVENUE, AND HON. ALBERTO D. LINA, IN HIS CAPACITY AS COMMISSIONER OF BUREAU OF CUSTOMS, RESPONDENTS. DECISION
CORONA, J.: This petition for prohibition[1] seeks to prevent respondents from implementing and enforcing Republic Act (RA) 9335[2] (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).[3] It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status.[4] The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.[5] The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recognized organization.[6] Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an annual report to Congress.[7] The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules and regulations of RA 9335,[8]to be approved by a Joint Congressional Oversight Committee created for such purpose.[9] Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or distinction as to why such a system should not apply to officials and employees of all other government agencies. In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel. Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise of this Court's jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of the constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check to any over-accumulation of power on the part of the executive and the implementing agencies. After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed. ACTUAL CASE AND RIPENESS An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial adjudication.[10] A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on the individual challenging it.[11] Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court.[12] In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of the law even without any further overt act,[13]petitioners fail either to assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this case or an injury to themselves. On this account, their petition is procedurally infirm. This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.[14]

ACCOUNTABILITY OF PUBLIC OFFICERS Section 1, Article 11 of the Constitution states: Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead modest lives. Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the people they are called upon to serve. Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their revenuegeneration capability and collection.[15] The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public policy. Petitioners' claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely speculative. A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one.[16] To invalidate RA 9335 based on petitioners' baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it. Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel. In United States v. Matthews,[17] the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,[18] the U.S. Supreme Court said: The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes. In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in Section 8 of the law: SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence. EQUAL PROTECTION

Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the object to be accomplished.[19] When things or persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v. Elizalde Rope Workers' Union,[20] this Court declared: The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed or by the territory within which it is to operate. The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked differences of things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may appear.[21](emphasis supplied) The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis and not arbitrary.[22] With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collection of the BIR and the BOC.[23] Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary function of generating revenues for the national government through the collection of taxes, customs duties, fees and charges. The BIR performs the following functions: Sec. 18. The Bureau of Internal Revenue. - The Bureau of Internal Revenue, which shall be headed by and subject to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) (2) (3) (4) (5) Assess and collect all taxes, fees and charges and account for all revenues collected; Exercise duly delegated police powers for the proper performance of its functions and duties; Prevent and prosecute tax evasions and all other illegal economic activities; Exercise supervision and control over its constituent and subordinate units; and Perform such other functions as may be provided by law.[24] xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions: Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management and control of the Commissioner of Customs, who shall be appointed by the President upon

the recommendation of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions:
(1) (2) (3) (4) (5) (6) (7) (8) (9) Collect custom duties, taxes and the corresponding fees, charges and penalties; Account for all customs revenues collected; Exercise police authority for the enforcement of tariff and customs laws; Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry; Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry; Administer all legal requirements that are appropriate; Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction; Exercise supervision and control over its constituent units; Perform such other functions as may be provided by law.[25] xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities through which the State exercises one of its great inherent functions - taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection. UNDUE DELEGATION Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate.[26] It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot.[27] To be sufficient, the standard must specify the limits of the delegate's authority, announce the legislative policy and identify the conditions under which it is to be implemented.[28] RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law: SEC. 2. Declaration of Policy. - It is the policy of the State to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed their revenue targets. Section 4 "canalized within banks that keep it from overflowing"[29] the delegated power to the President to fix revenue targets: SEC. 4. Rewards and Incentives Fund. - A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Excess the Revenue Targets 30% or below More than 30% Percent (%) of the Excess Collection to Accrue to the Fund - 15% - 15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target was exceeded and shall be released on the same fiscal year. Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies' revenue targets as allocated among its revenue districts in the case of the BIR,

and the collection districts in the case of the BOC. xxx xxx xxx (emphasis supplied) Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress.[30] Thus, the determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC. On the other hand, Section 7 specifies the limits of the Board's authority and identifies the conditions under which officials and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service: SEC. 7. Powers and Functions of the Board. - The Board in the agency shall have the following powers and functions: xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due process: Provided, That the following exemptions shall apply: 1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collection performance that can be used as basis for evaluation; and Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless the transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when the district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought about by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only after careful and proper review by the Board.

2.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shall be immediately executory: Provided, further, That the application of the criteria for the separation of an official or employee from service under this Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act; xxx xxx xxx (emphasis supplied) Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee.[31] In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws.[32] The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural due process. At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and

equity," "public convenience and welfare" and "simplicity, economy and welfare."[33] In this case, the declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC is infused with public interest. SEPARATION OF POWERS Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight Committee composed of seven Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementing rules and regulations (IRR) it shall thereafter becomefunctus officio and therefore cease to exist. The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot and academic. This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter). The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections[34] is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. x x x xxx xxx Over the years, Congress has invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20thcentury, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority delegated to them. x x x x x x xxx Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny,investigation and supervision. a. Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the

exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. xxx xxx xxx

b. Congressional investigation While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx xxx c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated lawmaking authority, and permits Congress to retain part of that delegated authority. Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect.Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress affirmatively approves it. Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to independent agencies while retaining the option to cancel particular exercise of such power without having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent thus explains: It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate. Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge thatany post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure beyond that would undermine the separation of powers guaranteed by the Constitution. They contend that legislative veto constitutes an impermissible evasion of the President's veto authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents counter that legislative veto enhances separation of powers as it prevents the executive branch and independent agencies from accumulating too much power. They

submit that reporting requirements and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits Congress to participate prospectively in the approval or disapproval of "subordinate law" or those enacted by the executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a necessary response by Congress to the accretion of policy control by forces outside its chambers." In an era of delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as declared by statute." In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the alien's appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House was without constitutional authority to order the alien's deportation and that 244(c)(2) violated the constitutional doctrine on separation of powers. On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President. x x x xxx xxx Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised.[35] (emphasis supplied) In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independence of the Commission on Elections.[36] With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the overaccumulation of power in the executive branch. However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on Congress.[37] It may not vest itself, any of its committees or its members with either executive or judicial power.[38] And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution,[39] including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress' power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation[40]and investigation and monitoring[41] of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.[42]

(2)

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an inwardturning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers.[43] It radically changes the design or structure of the Constitution's diagram of power as it entrusts to Congress a direct role in enforcing, applying or implementing its own laws.[44] Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence.[45] It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards.[46] In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature.[47] Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).[48] Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect.[49] Such rules and regulations partake of the nature of a statute[50] and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court.[51] Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution. CONSIDERED OPINION OF MR. JUSTICE DANTE O. TINGA Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment.[52] Section 1, Article VI of the Constitution states: Section 1. 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. (emphasis supplied) Legislative power (or the power to propose, enact, amend and repeal laws)[53] is vested in Congress which consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto, both a

single-chamber legislative veto and a congressional committee legislative veto are invalid. Additionally, Section 27(1), Article VI of the Constitution provides: Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied) Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect without such presentment even if approved by both chambers of Congress. In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of Congress.[54] Second, it must be presented to and approved by the President.[55] As summarized by Justice Isagani Cruz[56] and Fr. Joaquin G. Bernas, S.J.[57], the following is the procedure for the approval of bills: A bill is introduced by any member of the House of Representatives or the Senate except for some measures that must originate only in the former chamber. The first reading involves only a reading of the number and title of the measure and its referral by the Senate President or the Speaker to the proper committee for study. The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill under common authorship or as a committee bill. Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in the passage of a bill. The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the third reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further debate is allowed. Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differences between the versions approved by the two chambers, a conference committee[58] representing both Houses will draft a compromise measure that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration. The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate President, the Speaker, and the Secretaries of their respective chambers...[59] The President's role in law-making. The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.[60]

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause,[61]the determination as to when a law takes effect is wholly the prerogative of Congress.[62] As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law.[63] From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law. Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us.[64] The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No. Section 13 of RA 9335 provides: SEC. 13. Separability Clause. - If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provision not affected by such declaration of invalidity shall remain in force and effect. In Tatad v. Secretary of the Department of Energy,[65] the Court laid down the following rules: The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent. x x x The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the revenuegeneration capability and collection of the BIR and the BOC by providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board. To be effective, administrative rules and regulations must be published in full if their purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30, 2006

in two newspapers of general circulation[66] and became effective 15 days thereafter.[67] Until and unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the Joint Congressional Oversight Committee. WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and thereforeNULL and VOID. The constitutionality of the remaining provisions of RA 9335 isUPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain in force and effect. SO ORDERED. Puno, C. J., Quisumbing, Ynares-Santiago, Austria-Martinez, Carpio Morales, Azcuna, Velasco, Jr., Nachura, Reyes, Leonardo-De Castro, and Brion, JJ., concur. Carpio, J., See separate concurring opinion. Tinga, J., Please see concurring opinion. Chico-Nazario,

Advocates and Adherents of Social Justice for School Teachers and Allied Workers. Under Rule 65 of the Rules of Court.

[1]

[2]

An Act to Improve Revenue Collection Performance of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) Through the Creation of a Rewards and Incentives Fund and of a Revenue Performance Evaluation Board and for Other Purposes.
[3]

Section 2, RA 9335. Section 3, id. Section 4, id. Section 6, id. Section 7, id. Section 11, id. Section 12, id. Cruz, Isagani, PHILIPPINE CONSTITUTIONAL LAW, 1995 edition, p. 23.

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 1996 edition, pp. 848-849.
[12]

Cruz v. Secretary of Environment and Natural Resources, 400 Phil. 904 (2000). (Vitug, J., separate opinion)
[13]

See La Bugal-B'Laan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 01 December 2004, 445 SCRA

1.
[14]

Taada v. Angara, 338 Phil. 546 (1997).

[15]

Section 2, id.

[16]

Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208, 15 December 2004, 446 SCRA 299.
[17]

173 U.S. 381 (1899). 74 U.S. 166 (1868). BLACK'S LAW DICTIONARY, SPECIAL DE LUXE 5th Edition, West, p. 481. 158 Phil. 60 (1974). Id. Citations omitted. Ambros v. Commission on Audit, G.R. No. 159700, 30 June 2005, 462 SCRA 572. Section 2, RA 9335. Section 18, Chapter 4, Title II, Book IV, Administrative Code of 1987. Section 23, id. Pelaez v. Auditor General, 122 Phil. 965 (1965). Eastern Shipping Lines, Inc. v. POEA, G.R. No. L-76633, 18 October 1988, 166 SCRA 533. Cruz, Isagani, PHILIPPINE POLITICAL LAW, 1991 edition, p. 97. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), (Cardozo, J., dissenting). Section 5, Rule II, Implementing Rules and Regulations of RA 9335. De Guzman, Jr. v. Commission on Elections, 391 Phil. 70 (2000). See Section 46(b)(8), Chapter 6, Title I, Subtitle A, Book V, Administrative Code of 1987.

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

[26]

[27]

[28]

[29]

[30]

[31]

[32]

[33]

Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214, 19 September 2006, 502 SCRA 295.
[34]

453 Phil. 586 (2003). Mr. Justice (now Chief Justice) Puno's separate opinion was adopted as part of the ponencia in this case insofar as it related to the creation of and the powers given to the Joint Congressional Oversight Committee.
[35]

Id. (italics in the original) Id.

[36]

[37]

Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).
[38]

Id. Id.

[39]

[40]

See Mr. Justice (now Chief Justice) Puno's separate opinion in Macalintal. E.g., by requiring the regular submission of reports. See Mr. Justice (now Chief Justice) Puno's separate opinion in Macalintal. See Tribe, Lawrence, I American Constitutional Law 131 (2000). Id. Id. at 141. Metropolitan Washington Airports Authority v. Citizens for the Abatement of Airport Noise, supra. Edu v. Ericta, 146 Phil. 469 (1970).

[41]

[42]

[43]

[44]

[45]

[46]

[47]

[48]

Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 2003 edition, p. 664 citing Wayman v. Southward, 10 Wheat 1 (1852) and The Brig Aurora, 7 Cr. 382 (1813)).
[49]

Eslao v. Commission on Audit, G.R. No. 108310, 01 September 1994, 236 SCRA 161; Sierra Madre Trust v. Secretary of Agriculture and Natural Resources, 206 Phil. 310 (1983).
[50]

People v. Maceren, 169 Phil. 437 (1977). See Eslao v. Commission on Audit, supra.

[51]

[52]

It is also for these reasons that the United States Supreme Court struck down legislative vetoes as unconstitutional in Immigration and Naturalization Service v. Chadha (462 U.S. 919 [1983]).
[53]

Nachura, Antonio B., OUTLINE REVIEWER IN POLITICAL LAW, 2006 edition, p. 236. Section 26, Article VI of the Constitution provides:

[54]

Section 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and naysentered in the Journal.
[55]

See Bernas, supra note 48, p. 762. PHILIPPINE POLITICAL LAW, 2002 edition, Central Lawbook Publishing Co., Inc., pp. 152-153.

[56]

[57]

THE PHILIPPINE CONSTITUTION FOR LADIES, GENTLEMEN AND OTHERS, 2007 edition, Rex Bookstore, Inc., pp. 118-119.
[58]

The conference committee consists of members nominated by both Houses. The task of the conference committee, however, is not strictly limited to reconciling differences. Jurisprudence also allows the committee to insert new provision[s] not found in either original provided these are germane to the subject

of the bill. Next, the reconciled version must be presented to both Houses for ratification. (Id.)
[59]

Supra note 56. Supra note 57.

[60]

[61]

See Section 1, Article III of the Constitution. In Taada v. Tuvera (230 Phil. 528), the Court also cited Section 6, Article III which recognizes "the right of the people to information on matters of public concern."
[62]

As much is recognized in Article 2 of the Civil Code which states that "Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided." Taada recognized that "unless it is otherwise provided" referred to the date of effectivity. Simply put, a law which is silent as to its effectivity date takes effect fifteen days following publication, though there is no impediment for Congress to provide for a different effectivity date.
[63]

It has been suggested by Mr. Justice Antonio T. Carpio that Section 12 of RA 9335 is likewise unconstitutional because it violates the principle of separation of powers, particularly with respect to the executive and the legislative branches. Implicit in this claim is the proposition that the ability of the President to promulgate implementing rules to legislation is inherent in the executive branch. There has long been a trend towards the delegation of powers, especially of legislative powers, even if not expressly permitted by the Constitution. (I. Cortes, Administrative Law, at 12-13.) Delegation of legislative powers is permissible unless the delegation amounts to a surrender or abdication of powers. (Id.) Recent instances of delegated legislative powers upheld by the Court include the power of the Departments of Justice and Health to promulgate rules and regulations on lethal injection (Echegaray v. Secretary of Justice, 358 Phil. 410 [1998]); the power of the Secretary of Health to phase out blood banks (Beltran v. Secretary of Health, G.R. No. 133640, 133661, & 139147, 25 November 2005, 476 SCRA 168); and the power of the Departments of Finance and Labor to promulgate Implementing Rules to the Migrant Workers and Overseas Filipinos Act. (Equi-Asia Placement v.DFA, G.R. No. 152214, 19 September 2006, 502 SCRA 295.) The delegation to the executive branch of the power to formulate and enact implementing rules falls within the class of permissible delegation of legislative powers. Most recently, in Executive Secretary v. Southwing Heavy Industries (G.R. Nos. 164171, 164172 &168741, 20 February 2006, 482 SCRA 673), we characterized such delegation as "confer[ring] upon the President quasi-legislative power which may be defined as the authority delegated by the law-making body to the administrative body to adopt rules and regulations intended to carry out the provisions of the law and implement legislative policy." (Id., at 686, citing Cruz, Philippine Administrative Law, 2003 Edition, at 24.) Law book authors are likewise virtually unanimous that the power of the executive branch to promulgate implementing rules arises from legislative delegation. Justice Nachura defines the nature of the rule-making power of administrative bodies in the executive branch as "the exercise of delegated legislative power, involving no discretion as to what the law shall be, but merely the authority to fix the details in the execution or enforcement of a policy set out in the law itself." (A.E. Nachura, Outline Reviewer in Political Law [2000 ed.], at 272.) He further explains that rules and regulations that "fix the details in the execution and enforcement of a policy set out in the law" are called "supplementary or detailed legislation". (Id., at 273.) Other commentators such as Fr. Bernas (Bernas, supra note 48, at 611), De Leon and De Leon (H. De Leon & H. De Leon, Jr., Administrative Law: Text and Cases (1998 ed), at 79-80; citing 1 Am. Jur. 2d 891) and Carlos Cruz (C. Cruz, Philippine Administrative Law (1998 ed), at 19-20, 22, 23) have similar views. The Congress may delegate the power to craft implementing rules to the President in his capacity as the head of the executive branch, which is tasked under the Constitution to execute the law. In effecting this delegation, and as with any other delegation of legislative powers, Congress may impose conditions or limitations which the executive branch is bound to observe. A usual example is the designation by Congress of which particular members of the executive branch should participate in the drafting of the implementing

rules. This set-up does not offend the separation of powers between the branches as it is sanctioned by the delegation principle. Apart from whatever rule-making power that Congress may delegate to the President, the latter has inherent ordinance powers covering the executive branch as part of the power of executive control ("The President shall have control of all the executive departments, bureaus and offices..." Section 17, Article VII, Constitution.). By its nature, this ordinance power does not require or entail delegation from Congress. Such faculty must be distinguished from the authority to issue implementing rules to legislation which does not inhere in the presidency but instead, as explained earlier, is delegated by Congress. The marked distinction between the President's power to issue intrabranch orders and instructions or internal rules for the executive branch, on one hand, and the President's authority by virtue of legislative delegation to issue implementing rules to legislation, on the other, is embodied in the rules on publication, as explained inTaada v. Tuvera (G.R. No. L-63915, 29 December 1986, 146 SCRA 446). The Court held therein that internal regulations applicable to members of the executive branch, "that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties." (Id., at 454) The dispensation with publication in such instances is rooted in the very nature of the issuances, i.e., they are not binding on the public. They neither create rights nor impose obligations which are enforceable in court. Since they are issued pursuant to the power of executive control, and are directed only at members of the executive branch, there is no constitutional need for their publication. However, when the presidential issuance does create rights and obligations affecting the public at large, as implementing rules certainly do, then publication is mandatory. In explaining why this is so, the Court went as far as to note that such rules and regulations are designed "to enforce or implement existing law pursuant to a valid delegation." (Id., at 254.) The Court would not have spoken of "valid delegation" if indeed the power to issue such rules was inherent in the presidency. Moreover, the creation of legal rights and obligations is legislative in character, and the President in whom legislative power does not reside cannot confer legal rights or impose obligations on the people absent the proper empowering statute. Thus, any presidential issuance which purports to bear such legal effect on the public, such as implementing rules to legislation, can only emanate from a legislative delegation to the President. The prevalent practice in the Office of the President is to issue orders or instructions to officials of the executive branch regarding the enforcement or carrying out of the law. This practice is valid conformably with the President's power of executive control. The faculty to issue such orders or instructions is distinct from the power to promulgate implementing rules to legislation. The latter originates from a different legal foundation - the delegation of legislative power to the President. Justice Carpio cites an unconventional interpretation of the ordinance power of the President, particularly the power to issue executive orders, as set forth in the Administrative Code of 1987. Yet, by practice, implementing rules are never contained in executive orders. They are, instead, contained in a segregate promulgation, usually entitled "Implementing Rules and Regulations," which derives not from the Administrative Code, but rather from the specific grants in the legislation itself sought to be implemented. His position does not find textual support in the Administrative Code itself. Section 2, Chapter 2, Title 1, Book III of the Code, which defines "Executive orders" as "[a]cts of the President providing for rules of a general or permanent character in the implementation or execution of constitutional or statutory powers". Executive orders are not the vehicles for rules of a general or permanent character in the implementation or execution of laws. They are the vehicle for rules of a general or permanent character in the implementation or execution of the constitutional or statutory powers of the President himself. Since by definition, the statutory powers of the President consist of a specific delegation by Congress, it necessarily follows that the faculty to issue executive orders to implement such delegated authority emanates not from any inherent executive power but from the authority delegated by Congress.

It is not correct, as Justice Carpio posits, that without implementing rules, legislation cannot be faithfully executed by the executive branch. Many of our key laws, including the Civil Code, the Revised Penal Code, the Corporation Code, the Land Registration Act and the Property Registration Decree, do not have Implementing Rules. It has never been suggested that the enforcement of these laws is unavailing, or that the absence of implementing rules to these laws indicates insufficient statutory details that should preclude their enforcement. (See DBM v.Kolonwel Trading, G.R. Nos. 175608, 175616 & 175659, 8 June 2007, 524 SCRA 591, 603.) In rejecting the theory that the power to craft implementing rules is executive in character and reaffirming instead that such power arises from a legislative grant, the Court asserts that Congress retains the power to impose statutory conditions in the drafting of implementing rules, provided that such conditions do not take on the character of a legislative veto. Congress can designate which officers or entities should participate in the drafting of implementing rules. It may impose statutory restraints on the participants in the drafting of implementing rules, and the President is obliged to observe such restraints on the executive officials, even if he thinks they are unnecessary or foolhardy. The unconstitutional nature of the legislative veto does not however bar Congress from imposing conditions which the President must comply with in the execution of the law. After all, the President has the constitutional duty to faithfully execute the laws.
[64]

This stance is called for by judicial restraint as well as the presumption of constitutionality accorded to laws enacted by Congress, a co-equal branch. It is also finds support in Pelaez v. Auditor General (122 Phil. 965 [1965]).
[65]

346 Phil. 321 (1997). Emphasis in the original. In particular, the Philippine Star and the Manila Standard. Section 36, IRR of RA 9335.

[66]

[67]

CONCURRING OPINION

Tinga, J.: I join Justice Corona's lucid opinion one of the more legally significant decisions of this Court of recent years because it concludes for the first time that legislative vetoes are impermissible in this jurisdiction. I fully concur with the majority's reasoning for declaring legislative veto as invalid. Yet even as the ponencia aligns with most of my views, I write separately to fully explain my viewpoint. I The controversy rests on the so-called "legislative veto", defined by Tribe as "measures allowing [Congress], or one of its Houses or committees, to review and revoke the actions of federal agencies and executive departments."[1] Our Constitution specifically neither prohibits nor allows legislative vetoes, unlike presidential vetoes, which are formally authorized under Section 27, Article VI. Until today, Court has likewise declined so far to pass judgment on the constitutionality of a legislative veto.[2] The Court is unanimous that a legislative veto, such as that contained in Section 12 of Rep. Act No. 9335 is unconstitutional. Such a ruling would be of momentous consequence, not only because the issue has never

been settled before, but also because many of our statutes incorporate a similarly worded provision that empowers members of Congress to approve the Implementing Rules of various particular laws. Moreover, the invalidation of legislative vetoes will send a definite signal to Congress that its current understanding of the extent of legislative powers is awry. Concededly, our ruling will greatly affect the workings of the legislative branch of government. It would thus be intellectually honest to also consider the question from the perspective of that branch which is the branch most affected by that ruling. Of course, the perspective of the executive should be reckoned with as well since it has traditionally inveighed against legislative vetoes. Still, if we are to consider the congressional perspective of the question, there will emerge important nuances to the question that should dissuade against any simplistic analysis of the issue. II. I have previously intimated that the President, in chartering the extent of his plenary powers, may be accorded a degree of flexibility for so long as he is not bound by any specific constitutional proscription. That same degree of deference should be extended to Congress as well. Thus, I wish to inquire into whether there is a constitutionally justifiable means to affirm legislative vetoes. The emergence of the legislative veto in the United States coincided with the decline of the non-delegation doctrine, which barred Congress from delegating its law-making powers elsewhere.[3] Modern jurisprudence has authorized the delegation of lawmaking powers to administrative agencies, and there are resulting concerns that there is no constitutional assurance that the agencies are responsive to the people's will.[4] From that framework, the legislative veto can be seen as a means of limiting agency rule-making authority by lodging final control over the implementing rules to Congress. "But instead of controlling agency policy in advance by laying out a roadmap in the statute creating the agency, Congress now proposes to control policy as it develops in notice-and-comment rulemaking, after the agency's expert staff and interested members of the public have had an opportunity to assist in its formation."[5] It is a negative check by Congress on policies proposed by the agencies, and not a means for making policy directly.[6] From the perspective of Congress, the legislative veto affords maximum consideration to the plenary power of legislation, as it bolsters assurances that the legislative policy embodied in the statute will be faithfully executed upon its implementation. The faithful execution of the laws of the land is a constitutional obligation imposed on the President[7], yet as a matter of practice, there could be a difference of opinion between the executive and legislative branches as to the meaning of the law. The clash may be especially telling if the President and Congress are politically hostile with each other, and it bears notice that the legislative veto in the United States became especially popular beginning in the early 1970s, when the ties between the Democratic-controlled Congress and the Republican President Richard Nixon were especially frayed.[8] More recently, the current U.S. President Bush has had a penchant of attaching "signing statements" to legislation he has approved, such statements indicating his own understanding of the bill he is signing into law. The legislative veto, as a practical matter, allows Congress to prevent a countervailing attempt by the executive branch to implement a law in a manner contrary to the legislative intent. There is nothing obnoxious about the policy considerations behind the legislative veto. Since the courts, in case of conflict, will uphold legislative intent over the executive interpretation of a law, the legislative veto could ensure the same judicially-confirmed result without need of elevating the clash before the courts. The exercise of the legislative veto could also allow both branches to operate within the grayer areas of their respective constitutional functions without having to resort to the judicial resolution of their potentially competing claims. As the future U.S. Supreme Court Justice Stephen Breyer once wrote: The [legislative] veto sometimes offers a compromise of important substantive conflicts embedded deeply in the Constitution. How are we to reconcile the Constitution's grant to Congress of the power to declare war with its grant to the President of authority over the Armed Forces as their Commander in Chief? The War Powers Act approaches the problem, in part, by declaring that the President cannot maintain an armed conflict for longer than ninety days if both Houses of Congress enact a resolution of disapproval. Similar

vetoes are embedded in laws authorizing the President to exercise various economic powers during times of "national emergency". To take another example, how are we to reconcile article I's grant to Congress of the power to appropriate money with article II's grant to the President of the power to supervise its expenditure? Must the President spend all that Congress appropriates? Congress has addressed this conflict, authorizing the President to defer certain expenditures subject to a legislative veto.[9] There are practical demerits imputed as well to the legislative veto, such as the delay in the implementation of the law that may ensue with requiring congressional approval of the implementing rules.[10] Yet the question must ultimately rest not on the convenience or wisdom of the legislative veto device, but on whether it is constitutionally permissible. In 1983, the United States Supreme Court struck a decisive blow against the legislative veto in INS v. Chadha[11], a ruling which essentially held the practice as unconstitutional. It appears that the foremost consideration of the majority opinion inChadha were the issues of bicameralism and presentment, as discussed by the Chief Justice in his Separate Opinion in Macalintal v. COMELEC[12]. The twin issues of presentment and bicameralism would especially come to fore with respect to the Joint Congressional Oversight Committee under Rep. Act No. 9335, composed as it is by seven Members from the Senate and seven Members from the House of Representatives.[13] Chadha emphasized that the bills passed by the U.S. Congress must be presented for approval to the President of the United States in order that they may become law.[14]Section 27(1), Article VI of our Constitution imposes a similar presentment requirement. Chadha also noted that a bill must be concurred in by a majority of both Houses of Congress. Under our Constitution, Congress consists of a House of Representatives and a Senate, and the underlying uncontroverted implication is that both Houses must concur to the bill before it can become law. Assuming that the approval of the Implementing Rules to Rep. Act No. 9335 by seven Members from each House of Congress is a legislative act, such act fails either the presentment or bicameralism requirement. Such approval is neither presented to the President of the Philippines for consent, nor concurred in by a majority of either House of Congress. Yet with respect to the implications of Chadha on the principle of separation of powers, there are critical informed comments against that decision. Chadha involved the statutory authority of either House of Congress to disapprove the decision of the executive branch to allow a deportable alien to remain in the United States. The majority had characterized such disapproval as a legislative act, since it "had the purpose and effect of altering the legal rights, duties and relations of persons".[15] Yet that emphasis "on the labels of legislative, executive and judicial" was criticized as "provid[ing] the rhetorical ammunition for a variety of cases seeking judicial reassessment of the constitutionality not only of the great number of statutes that have incorporated some kind of legislative veto mechanism, but of regulatory statutes in general that sought to delegate legislative, executive and judicial power, and various combinations thereof, to the unelected officials that run the various federal agencies."[16] Fisher presents a veritable laundry list of criticisms of the Chadha reasoning, replete with accusations that the analysis employed on separation of powers detracted from the intent of the Framers, resulting in giving the "executive branch a one-sided advantage in an accommodation that was meant to be a careful balancing of executive and legislative interests".[17] He further observed: The Court's misreading of history and congressional procedures has produced some strange results. Its theory of government is too much at odds with the practices developed over a period of decades by the political branches. Neither administrators nor congressmen want the static model proferred by the Court. The conditions that spawned the legislative veto a half century ago have not disappeared. Executive officials still want substantial latitude in administering delegated authority; legislators still insist on maintaining control without having to pass another law. The executive and legislative branches will, therefore develop substitutes to serve as the functional equivalent of the legislative veto. Forms will change but not power relationships and the need for quid pro quo.[18] And Tribe himself finds flaw in the Chadha analysis of what constituted a legislative act: And why, precisely, did the veto of the suspension of Chadha's deportation have to be deemed legislative? It was "essentially legislative," according to the Court, because it "had the purpose and effect of altering the

legal rights, duties and relations of persons ... outside the legislative branch". Without Congress' exercise of the legislative veto in his case, Chadha would have remained in America; without the veto provision in the immigration statute, the change in Chadha's legal status could have been wrought only be legislation requiring his deportation. The difficulty with this analysis is that the same observations apply with equal validity to nearly all exercises of delegated authority, whether by a House of Congress or by an executive department or an administrative agency. Both through rule-making and through case-by-case adjudication, exercises of delegated authority change legal rights and privileges no less than do full-fledged laws. There was perhaps less need than the Court perceived to squeeze the legislative veto into one of the three pigeonholes envisioned by the Framers. Even if Congress' action had been deemed "executive" in nature, it presumably would have been unconstitutional, since Congress may make, but not execute the laws. And if the legislative veto had been deemed "judicial," it would still have violated the separation of powers, as Justice Powell recognized in his concurring opinion.[19] The majority in Chadha did not address the reality that the U.S. Congress had relied on the legislative veto device for over five decades[20], or for that matter, the valid concerns over the executive usurpation of legislative prerogatives that led to the invention of the veto as a countervailing measure. Justice Byron White relied extensively on these concerns in his dissenting opinion in Chadha. Nonetheless, the invalidation of the legislative veto in Chadha has caused serious discussion as to alternative constitutional means through which Congress could still ensure that its legislative intentions would not be countermanded by the executive branch. On one extreme, a Republican congressman, Nick Smith of Michigan, filed a bill requiring that significant new regulations adopted by administrative agencies be approved by a joint resolution of Congress before they would become effective.[21]Less constitutionally controversial perhaps were the suggestions of Justice Breyer in remarks he made after Chadha was decided. He explained that "Congress unquestionably retains a host of traditional weapons in its legislative and political arsenal that can accomplish some of the veto's objectives."[22] These include the power to provide that legislation delegating authority to the executive expires every so often. To continue to exercise that authority, the executive would have to seek congressional approval, at which point past agency behavior that Congress disliked would become the subject of serious debate. Moreover, Congress might tailor its statutes more specifically, limiting executive power. Further, Congress can require the President, before taking action, to consult with congressional representatives whose views would carry significant political weight. Additionally, Congress can delay implementation of an executive action (as it does when the Supreme Court promulgates rules of civil procedure) until Congress has had time to consider it an to enact legislation preventing the action from taking effect. Finally, each year Congress considers the agency's budget. If a significant group of legislators strongly opposes a particular agency decision, it might well succeed in including a sentence in the appropriations bill denying the agency funds to enforce that decision.[23] I raise these points because even with the invalidation of the legislative veto, Congress need not simply yield to the executive branch. The invalidation of the legislative veto can be mistakenly perceived as signal by the executive branch that it can, in the guise of rule-making power, adopt measures not authorized or even forbidden in the enabling legislation. If that happens, undue weight will be shifted to the executive branch, much like what had happened when former President Marcos exercised both executive and legislative powers. One might correctly argue that the judicial branch may still exercise corrective relief against such unauthorized exercise by the executive[24], yet the relief may not come for years to come, considering the inherently deliberative judicial process. I do believe that there is a constitutionally sound mechanism through which Congress may validly influence the approval of a law's Implementing Rules. Section 12 of Rep. Act No. 9335 may not be such a means, but I maintain that it would be highly useful for the Court to explain how this can be accomplished. In this light, I submit the following proposed framework for invalidating the legislative veto while recognizing the preeminent congressional prerogative in defining the manner how legislation is to be implemented. III.

We can consider that in the enactment and implementation of a law, there is a legislative phase and an executive phase. The legislative phase encompasses the period from the initiation of a bill in Congress until it becomes effective as a law. On the other hand, the executive phase begins the moment the law is effective and falls within the capacity of the executive branch to enforce. Notably, as such, it is only upon the effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Now, subject to the indispensable requisite of publication under the due process clause,[25] the determination as to when a law takes effect is wholly the prerogative of Congress.[26] As such, it is only upon effectivity that the law may be executed, and the executive branch acquires the duties and powers to execute that law. Before that point, the role of the executive branch, particularly the President, is limited to signing or vetoing the law. All other powers of government that attach to the proposed law are exercised exclusively by Congress and are hence, legislative in character. In fact, the United States Supreme Court, speaking through Justice Black, has gone as far as to hold that the Constitution "limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad."[27] It is viable to hold that any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law after the execution phase has begun violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the Implementing Rules after the law has already taken effect is unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by those members of the executive branch charged with the implementation of the law. This time or phase demarcation not only affords a convenient yardstick by which to assess the constitutionality of a legislated role for Congress vis--vis a law, it also hews to the proper allocation of governmental powers. Again, the exercise of executive powers relative to a statute can only emanate after the effectivity of the law, since before that point, said law cannot be executed or enforced. Until a law becomes effective, there are no executive functions attached to the law. Of course, following this rationale, Section 12 of Rep. Act No. 9335 will have to be invalidated. To cite one outstanding example of what else would be invalidated as a result is the Joint Congressional Power Commission established in the EPIRA (Rep. Act No. 9136), where the Commission composed of several members of Congress exercises a continuing role in overseeing the implementation of the EPIRA.[28] The functions of the Joint Congressional Power Commission are exercised in the execution phase, and thus beyond the pale of legislative power. There are many other provisions in our laws, such as those similar to Section 12 of Rep. Act No. 9335, that will similarly not pass muster after this ruling, and the Court will have to reckon with the real problem as to whether this decision effectively nullifies those provisions as well. Nonetheless, the Court need not invalidate those provisions in other laws yet and await the appropriate cases to do so, similar to the approach previously taken on the invalidation of municipalities created by the President in Pelaez v. Auditor General.[29] IV. I seriously disagree with Justice Carpio's assertion that the power to formulate or adopt implementing rules inheres in the executive function. That power is a legislative function traditionally delegated by Congress to the executive branch. The ponenciasatisfactorily asserts this point through its Footnote No. 63, and I need not belabor it. One option for congressional control over executive action is to be very specific and limiting in the delegation of power to agencies, so that their rulemaking power will in turn be limited.[30] The power to make rules and regulation is that kind of legislative power which may be delegated.[31] In practice, the United States Congress has engaged frequently in broad delegations that in effect require agencies to make specific sub-rules i.e., to exercise legislative power.[32] This practice has drawn some criticism that power

is now concentrated in the executive branch and that it is thus necessary to restore Congress to its original status of preeminence.[33] The growth of an enormous national bureaucracy, operating for the most part within the executive branch, may have fundamentally altered the original constitutional framework and requires some sort of response if the original constitutional concerns are to be satisfied.[34] Section 12 of Rep. Act No. 9335, or any other provision of law granting components of the executive branch the power to formulate implementing rules, is a delegation of legislative power belonging to Congress to the executive branch. Congress itself has the power to formulate those particular rules and incorporate them in the law itself. What I believe Congress is precluded from doing is to exercise such power after the law has taken effect, in other words, after the execution phase has begun. Unless such a limitation were laid down, there would ensue undue encroachment by Congress in the exercise of legislative power. This delegable rule-making power may be classified into two types: (1) rules intended to regulate the internal management of the agencies themselves; and (2) rules supplementing a statute and intended to affect persons and entities outside the government made subject to agency regulation.[35] Either case, the power of the executive branch to promulgate such rules springs from legislative delegation. In the Philippines, the power of executive officials to enact rules to regulate the internal management of executive departments was specifically allocated to them by a statute, the Administrative Code of 1987, promulgated by President Aquino in the exercise of her then extant legislative powers. With respect to supplementary rules to particular legislation, the power of executive officials to formulate such rules derives from the legislation itself. But in no case does such power emanate actually from inherent executive power. The rule need not be hard and fast. We may as well pay heed to Blackstone's practical observation that the "manner, time and circumstances of putting laws in execution must frequently be left to the discretion of the executive magistrates".[36] But by and large, any problem left by the absence of clear and explicit statutory language is avoided in turn by the statutory delegation of legislative power to executive officials to vest them sufficient discretion to fill in the details.[37] We thus cannot detract from the fundamental principle that rule-making power is legislative in character and exercised by executive officials only upon a statutory delegation of legislative power. As Fisher summarizes the peculiar dynamic: Presidents are obligated under the Constitution to take care that the laws be "faithfully executed." The often conflicting and ambiguous passages within a law must be interpreted by executive officials to construct the purpose and intent of Congress. As important as intent is the extent to which a law is carried out. President Taft once remarked, "Let anyone make the laws of the country, if I can construe them." To carry out the laws, administrators issue rules and regulations of their own. The courts long ago appreciated this need. Rules and regulations "must be received as the acts of the executive, and as such, be binding upon all within the sphere of his legal and constitutional authority. Current law authorizes the head of an executive department or military department to prescribe regulations "for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. These duties, primarily of a "housekeeping" nature, relate only distantly to the citizenry. Many regulations, however, bear directly on the public.It is here that administrative legislation must be restricted in its scope and application. Regulations are not supposed to be a substitute for the general policymaking that Congress enacts in the form of a public law. Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws. Agency rulemaking must rest on authority granted directly or indirectly by Congress.[38] The Court's rightful rejection of Justice Carpio's premise that the power of the President of promulgate Implementing Rules and Regulations is inherently executive provides a necessary clarification that is critical to the understanding of the Court's ruling today. Had Justice Carpio's position been adopted by the Court,

the result would have been a presidency much stronger than the Constitution envisioned. Acceding to the President the power to craft Implementing Rules to legislation even if Congress specifically withholds such power to the Chief Executive would have upset the finely measured schematic of balanced powers, to the benefit of the President. Fortunately, with the disavowal of that theory, greater consideration is accorded to legislative prerogatives without compromising the important functions of the presidency. V. Thusly, there is nothing inherently unconstitutional in congressional participation in the formulation of implementing rules of legislation since that power is legislative in character. Yet there still are multiple roadblocks impeding a constitutionally valid exercise of that prerogative by Congress. The matters of bicameralism and presentment, as expounded in Chadha, are hurdles which I submit should bind the Philippine Congress as it exercises its legislative functions. Section 12 of Rep. Act No. 9335 can be struck down on that ground alone.[39] Moreover, imposing a rule barring a legislative role in the implementation of a law after the statute's effectivity will sufficiently preserve the integrity of our system of separation of powers. At the same time, the concerns of Congress that may have animated the rise of the legislative veto should not be disrespected by simply raising formalistic barriers against them. In practice, the legislative veto is an effective check against abuses by the executive branch. The end may not justify unconstitutional means, yet we should leave ample room for Congress to be able to address such concerns within broad constitutional parameters. There are a myriad of creative ways by which Congress may influence the formulation of Implementing Rules without offending the Constitution. If there are especially problematic areas in the law itself which Congress is not minded to leave any room for interpretative discretion by executive officials, then the provision involved can be crafted with such specificity to preclude alternative interpretations. At the same time, commonly, legislators and their staffs may lack the expertise to draft specific language.[40] Speaking from my own legislative experience, it is in the drafting of the Implementing Rules, rather than in the statute itself, that the particular expertise of the agency officials and experts tasked with the implementation of the law become especially vital. Also, Congress can dictate which particular executive officials will draft the implementing rules, prescribe legal or factual standards that must be taken into account by such drafters, or otherwise impose requirements or limitations which such drafters are bound to comply with. Again, because the power to draft implementing rules is delegated legislative power, its exercise must be within the confines of the authority charted by Congress. And because executive functions cannot commence until after the effectivity of the law, Congress may very well adopt creative but constitutional measures that suspend the effectivity of the law until implementing rules to its liking are crafted. There is nothing unconstitutional with suspending the effectivity of laws pending the occurrence of a stipulated condition. "[I]t is not always essential that a legislative act should be a completed statute which must in any event take effect as a law, at the time it leaves the hands of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event."[41] The requirements of bicameralism and especially presentment may pose insurmountable hurdles to a provision that plainly suspends the effectivity of a law pending approval by Congress or some of its members of the implementing rules.[42]At the same time, it should be recognized that Congress does have the prerogative to participate in the drafting of the rules, and if it finds a means to do so before the execution phase has begun, without offending bicameralism or presentment, such means may be upheld.

[1]

L. Tribe, I. American Constitutional Law 142 (3rd ed., 2000.) , at 142.

[2]

See, e.g., PHILCONSA v. Enriquez, G.R. Nos. 113105, 113174, 113766, 113888, 19 August 1994, 234 SCRA 506. Neither was the question considered by the majority opinion in Macalintal v. COMELEC, 453 Phil. 586 (2003).
[3]

See., e.g., Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). See also H. Bruff & E. Gellhorn, "Congressional Control of Administrative Regulation: A Study of Legislative Vetoes", 90 Harv. L. Rev. 1369, 1372-1373 (1977).
[4]

Bruff & Gellhorn, supra note 3, at 1373. Ibid. Ibid. See Sec. 17, Article VII, Constitution.

[5]

[6]

[7]

[8]

"One survey found five such [legislative veto clauses] enacted between 1932 and 1939, nineteen in the 1940's, thirty four in the 1950's, forty-nine in the 1960's, and eighty-nine enacted between 1970 and 1975." S. Breyer, The Legislative Veto After Chadha, 72 Geo. L.J. 785, 786 (1984)
[9]

Breyer, supra note 8, at 789. Bruff & Gellhorn, supra note 3, at 1379. 462 U.S. 919 (1983).

[10]

[11]

[12]

453 Phil. 586 (2003). "[T]he Court [in Chadha] shied away from the issue of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and presentment to the President.xxx" Id., at 763 (J. Puno, Separate Opinion)
[13]

See Section 12, Rep. Act No. 9335.

[14]

"The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers. Presentment to the President and the Presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented." INS v. Chadha, supra note 11, at 946-947.
[15]

Id., at 952. A. Aman & W. Mayton, Administrative Law (2nd ed., 2001), at 594. L. Fisher. Constitutional Conflicts Between Congress and the President. (4th ed., 1997), at 153. Id., at 155. Tribe, supra note 1, at 144. Citations omitted. See note 8. N. Smith, "Restoration of Congressional Authority and Responsibility Over the Regulatory Process. 33

[16]

[17]

[18]

[19]

[20]

[21]

Harv. J. on Legis. 323 (1996).

[22]

S. Breyer, supra note 8, at 792. Ibid. See, e.g., John Hay People's Alternative Coalition v. Lim, 460 Phil. 530 (2003).

[23]

[24]

[25]

See Section1, Article III, Constitution. In Taada v. Tuvera, 230 Phil. 528 (1986), the Court also cited Section 6 of the Bill of Rights, which recognized "the right of the people to information on matters of public concern", as a constitutional basis for mandating publication of laws.
[26]

As much is recognized in Article 2 of the Civil Code, which states that "Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided." The Court in Taada recognized that "unless it is otherwise provided" referred to the date of effectivity. Simply put, a law which is silent as to its effectivity date takes effect fifteen days following publication, though there is no impediment for Congress to provide for a different effectivity date.
[27]

Youngstown Co. v. Sawyer, 343 U.S. 579, 587 (1952) See Section 62, Rep. Act No. 9136, which provides:

[28]

Section 62: Joint Congressional Power Commission. Upon the effectivity of this Act, a congressional commission, hereinafter referred to as the "Power Commission", is hereby constituted. The Power Commission shall be composed of fourteen (14) members with the chairmen of the Committee on Energy of the Senate and the House of Representatives and six (6) additional members from each House, to be designated by the Senate President and the Speaker of the House of Representatives, respectively. The minority shall be entitled to pro rata representation but shall have at least one (1) representative in the Power Commission. The Commission shall, in aid of legislation, perform the following functions, among others: a. b. c. Set the guidelines and overall framework to monitor and ensure the proper implementation of this Act; Endorse the initial privatization plan within one (1) month from submission of such plan to the Power Commission by PSALM Corp. for approval by the President of the Philippines; To ensure transparency, require the submission of reports from government agencies concerned on the conduct of public bidding procedures regarding privatization of NPC generation and transmission assets; Review and evaluate the performance of the industry participants in relation to the objectives and timelines set forth in this Act; Approve the budget for the programs of the Power Commission and all disbursements therefrom, including compensation of all personnel; Submit periodic reports to the President of the Philippines and Congress; Determine inherent weaknesses in the law and recommend necessary remedial legislation or executive measures; and Perform such other duties and functions as may be necessary to attain its objectives.

d. e. f. g. h.

In furtherance hereof, the Power Commission is hereby empowered to require the DOE, ERC, NEA, TRANSCO, generation companies, distribution utilities, suppliers and other electric power industry participants to submit reports and all pertinent data and information relating to the performance of their

respective functions in the industry. Any person who willfully and deliberately refuses without just cause to extend the support and assistance required by the Power Commission to effectively attain its objectives shall, upon conviction, be punished by imprisonment of not less than one (1) year but not more than six (6) years or a fine of not less than Fifty thousand pesos (P50,000.00) but not more than Five hundred thousand pesos (P500,000.00) or both at the discretion of the court. The Power Commission shall adopt its internal rules of procedures; conduct hearings and receive testimonies, reports and technical advice; invite or summon by subpoena ad testificandum any public official, private citizen or any other person to testify before it, or require any person by subpoena duces tecum to produce before it such records, reports, documents or other materials as it may require; and generally require all the powers necessary to attain the purposes for which it is created. The Power Commission shall be assisted by a secretariat to be composed of personnel who may be seconded from the Senate and the House of Representatives and may retain consultants. The secretariat shall be headed by an executive director who has sufficient background and competence on the policies and issues relating to electricity industry reforms as provided in this Act. To carry out its powers and functions, the initial sum of twenty- five million pesos (P25,000,000.00) shall be charged against the current appropriations of the Senate. Thereafter, such amount necessary for its continued operation shall be included in the annual General Appropriations Act. The Power Commission shall exist for period of ten (10) years from the effectivity of this Act and may be extended by a joint concurrent resolution.
[29]

122 Phil. 965 (1965). K. Sullivan & G. Gunther, Constitutional Law (14th ed., 2001), at 351. State ex .rel. Wis. Inspection Bureau v. Whitman, 196 Wis. 427, 220 N.W. 929 (1928) Sullivan & Gunther, supra note 30, at 351. G. Stone, L. Seidman, C. Sunstein, and M. Tushnet, Constitutional Law (4th ed., 2001), at 334. Ibid. Ibid. W. Blackstone, Commentaries, Book 1, 270.

[30]

[31]

[32]

[33]

[34]

[35]

[36]

[37]

"The nature of government often requires Congress to pass general legislation and leave to other branches the responsibility to fill in the details". Fisher, supra note 17, at 90, citing Wayman v. Southard, 10 Wheat. 1, 46 (1825).
[38]

Id., at 106-107. Citations omitted.

[39]

The twin issues of presentment and bicameralism would especially come to fore with respect to the Joint Congressional Oversight Committee under Rep. Act No. 9335, composed as it is by seven Members from the Senate and seven Members from the House of Representatives. Chadha emphasized that the bills passed by the U.S. Congress must be presented for approval to the President of the United States in order that they may become law.[39] Section 27(1), Article VI of our Constitution imposes a similar presentment requirement. Chadha also noted that a bill must be concurred in by a majority of both Houses of Congress. Under our Constitution, Congress consists of a House of Representatives and a Senate, and the underlying uncontroverted implication is that both Houses must concur to the bill before it can become law. Assuming that the approval of the Implementing Rules to Rep. Act No. 9335 by seven Members from each House of Congress is a legislative act, such act fails either the presentment or bicameralism requirement. Such

approval is neither presented to the President of the Philippines for consent, nor concurred in by a majority of either House of Congress.
[40]

Fisher, supra note 17, at 91.

[41]

4 Cooley on Constitutional Limitations, cited in Ex parte Mode, 77 Tex. Crim. 432, 441, 180 S.W. 708, Am. Ann. Cas. 1918E (1915).
[42]

Of course, the problem of presentment would be avoided if the implementing rules would also be submitted for approval to the President, but this roundabout manner should be discouraged, since it could be avoided simply by having those rules previously incorporated in the law earlier presented to the President.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 3135 April 15, 1988 MIGUEL CUENCO, complainant, vs. HON. MARCELO B. FERNAN, petitioner. RESOLUTION

PER CURIAM: Complainant Miguel Cuenco has filed an untitled pleading dated 27 March 1988 which, considering the melange confus of allegations therein, the Court treats as a consolidated: (1) Second Motion for Reconsideration of the decision dated 23 July 1987 rendered by the Third Division of the Court in the Consolidated Petitions in G.R. No. L-41171 (entitled "Intestate Estate of the Late Vito Borromeo. Patrocinio Borromeo-Herrera v. Fortunate Borromeo, et al."), G.R. No. 55000 (entitled "In the Matter of the Estate of Vito Borromeo, Deceased. Pilar N. Borromeo, et al. v. Fortunato Borromeo"), G.R. No. 62895 (entitled "Jose Cuenco Borromeo v. Court of Appeals, et al."), G.R. No. 63818 (entitled "Domingo Antigua, et al. v. Court of Appeals, et al."), and G.R. No. 65995 (entitled "Petra Borromeo, et al. v. Francisco P. Burgos, etc., et al."); (2) and Motion for Reconsideration of the Court's En Banc Resolution of 17 February 1988 in this case;

(3) Compliance with the directive in aforesaid Resolution of 17 February 1988 requiring complainant Cuenco "to show cause why he should not be administratively dealt with for having made unfounded and serious accusations against Mr. Justice Fernan." A. On the Second Motion for Reconsideration of the Decision in the Consolidated Petitions

The record of the Vito Borromeo estate proceedings discloses that the 23 July 1987 decision of the Court in the five (5) Consolidated Petitions mentioned became final and executory on 19 October 1987 and that Entry of Judgment was made on 24 March 1988. There is thus no need to discuss here the arguments made by complainant Cuenco in respect of the Court's decision therein on the matter of attomey's fees of Mr. Cuenco and all the other lawyers concerned. B. 3135 On the Motion for Reconsideration of the Resolution of the Court in Administrative Case No.

The present administrative case for disbarment filed by complainant Cuenco against Mr. Justice Fernan was previously dismissed by the Court "for utter lack of merit" in a Per Curiam Resolution issued on 17 February 1988 on, inter alia, the ground that complainant had failed altogether to substantiate his charges against Mr. Justice Fernan. The Court also held that, under the Constitution, removal from office of a Member of the Supreme Court can be effected only through impeachment, and not indirectly through disbarment proceedings. To the extent that the Court can understand complainant Cuenco's untitled pleading, complainant would now seek reconsider consideration of the Court's Resolution on the following grounds: 1. That in the estate proceedings of the late Vito Borromeo, Mr. Justice Fernan "made up his mind that some persons have to be declared heirs of Vito Borromeo" and that the several petitions for declaration of heirs were heard jointly at the law office of Atty. now Justice Fernan in Cebu City; 2. That it is unlikely that Mr. Justice Fernan "had a stony face, was motionless, expression less, without uttering words, views, opinions, so that he did not assert any influence [during] long deliberations [of the Consolidated Petitional], hence, "it is impossible to deny Justice Fernan's participation in the preparations of the 32-page decision of the Third Division of the Supreme Court [in the Consolidated Petitional];" consequently, Mr. Justice Fernan not only "voted for his exoneration which is naturally seriously anomalous," but he also acted as respondent, his own counsel for himself and judge of himself three conflicting positions rolled into one;" 3. That "[t]he decision of the Third Division in the five cases is open to the suspicion that Justice Fernan is protecting Judge Burgos, and Attys. Antigua and Estenzo for violating the provisions of the Civil Code;" and 4. That "[t]he theory that Mr. Justice Fernan is not accountable for any grave misconduct except by impeachment proceeding, is not absolute. In its Resolution of 17 February 1988 in this case, the Court found complainant Cuenco's charges against Mr. Justice Fernan to be "completely unsupported by the facts and evidence of record." We find in the present instance that complainant Cuenco, in his untitled pleading, has once more failed to submit any proof whatsoever to substantiate the statements made by him therein which are so extravagant as to be preposterous.

1. As pointed out in the Court's 17 February 1988 Resolution of this case, Special Proceedings No. 916-R for probate of the will of the late Vito Borromeo was instituted in 1952, while it was in 1954 that the "heirs" referred to by complainant Cuenco in his pleading claimed rights of ownership over thirteen (13) parcel of land which they sought to be excluded from the estate of the decedent. Upon the other hand, Mr. Justice Fernan's involvement in the Vito Borromeo estate proceedings began only on 7 August 1965 and ended on 19 February 1968, long after said "heirs" had surfaced and asserted their respective claims against the decedent's estate. There is, therefore, no rational basis for the assertion of complainant Cuenco that Mr. Justice Fernan "made up his mind that some persons have to be declared heirs of Vito Borromeo." Complainant Cuenco further asserts that the several petitions for declaration of heirs filed by the different claimants to the estate of the late Vito Borromeo "were heard jointly at the law office of Atty. now Justice Fernan in Cebu City." It will be noted from the 23 July 1987 decision of the Court in the Consolidated Petitions that said petitions for declaration of heirship were heard jointly by the trial judge not by Mr. Justice Fernan sometime during or after the month of December 1968, after probate of the will had been disallowed by the probate court, and after Mr. Justice Fernan had already withdrawn as counsel for two (2) of the instituted heirs in the Vito Borromeo estate proceedings. 2. The record explicitly shows that Mr. Justice Fernan inhibited himself from participating in the deliberations on the Vito Borromeo estate cases and, in fact, did not take part in the resolution thereof. This fact of non-participation is manifested in the annotation appearing beside Mr. Justice Fernan's signature: "No part I appeared as counsel for one of the parties." Complainant Cuenco, however, continues simply to ignore this express statement on the record and, instead, presents his own personal notions of the "true" facts and circumstances of this case. The record, however, is entirely bereft of any suggestion that Mr. Justice Fernan had in any way influenced any Member of the Third Division of the Court or participated in the deliberations and resolution of the estate cases. 3. We are unable to understand Cuenco's assertion that the Decision of the Courts' Third Division in the Consolidated Petitions "is open to the suspicion that Justice Fernan is protecting Judge Burgos, and Attys. Antigua and Estenzo for violating the provisions of the Civil Code." 4. On the statements made by complainant Cuenco concerning the rule referred to in the per curiam Resolution of 17 February 1988 that a Member of the Supreme Court may be removed from office only through impeachment, not by a disbarment proceeding, it suffices to furnish Mr.Cuenco a copy of the extended Resolution of this Court dated 15 April 1988 on this same topic. C. On Compliance with the Resolution of l7 February 1988 in Administrative Case No. 3135.

The Court finds the explanation given by complainant Cuenco to be totally unsatisfactory. Complainant Cuenco vehemently denies acting in bad faith in filing the present administrative complaint against Mr. Justice Fernan and suggests that his acts have been "misunderstood" by the Court. Complainant, however, has failed to present a shred of evidence to support the very serious charges he has made against Mr. Justice Fernan. In his untitled pleading, complainant Cuenco has not only declined to prove the accusations he has made against Mr. Justice Fernan but has also chosen to make additional statements and charges so extravagant and so clearly uninformed as to require no discussion. Because the Court cannot assume that complainant Cuenco is totally unaware of the nature and gravity of the

charges he has made against Mr. Justice Fernan and which he has completely failed to support with anything but his own bare assertion, the Court is compelled to conclude that those accusations were made in bad faith. ACCORDINGLY, the Court Resolved: a) to DENY Mr. Cuenco's Second Motion for Reconsideration of the Decision of the Court dated 23 July 1987 in G.R. Nos. L-41171, 55000, 62895, 63818 and 65995, said decision having become final and executory; b) to DENY, with finality, complainant Cuenco's Motion for Reconsideration of the Resolution of this Court dated 17 February 1988 in Administrative Case No. 3135; and c) to FIND Mr. Cuenco guilty of misconduct as a lawyer and an officer of the Court.

Complainant Cuenco is hereby severely REPRIMANDED and WARNED that the same or similar misconduct in the future will be dealt with more severely by the Court. Were it not for complainant Cuenco's advanced age, frail health and prior service to the country, the Court would have imposed a more severe penalty in this case. Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. Fernan, J., took no part. Gutierrez, Jr., J., is on leave.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 88-4-5433 April 15, 1988 IN RE FIRST INDORSEMET FROM HONORABLE RAUL M. GONZALEZ DATED 16 MARCH 1988 REQUESTING HONORABLE JUSTICE MARCELO B. FERNAN TO COMMENT ON AN ANONYMOUS LETTER-COMPLAINT. RESOLUTION

PER CURIAM: The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez, "Tanodbayan/Special; Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint, dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court," together with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications of policy raised by said 1st Indorsement. The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr.

Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention. The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled "Miguel Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of merit. In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with finality Mr Cuenco's Motion for Reconsideration. It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms. A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms: There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied) This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan, 1 the Court said: The broad power of the New Constitution vests the respondent court with jurisdiction over "public officers and employees, including those in government-owned or controlled corporations." There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides:

Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption." Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law.
Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that "judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)." The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance with law" may not prosper. 2

The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are substantially reproduced in Article XI of the 1987 Constitution: Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Sec. 3 xxx xxx xxx (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment

proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court. It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings. The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M. Gonzales and Mr Miguel Cuenco. Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. Fernan, J., took no part. Guetierrez, J., J., is on leave. Footnotes 1 128 SCRA 324 [1984]. 2 Id., at 330-331; Emphasis supplied.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 88-4-5433 April 15, 1988 IN RE FIRST INDORSEMET FROM HONORABLE RAUL M. GONZALEZ DATED 16 MARCH 1988 REQUESTING HONORABLE JUSTICE MARCELO B. FERNAN TO COMMENT ON AN ANONYMOUS LETTER-COMPLAINT. RESOLUTION

PER CURIAM: The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez, "Tanodbayan/Special; Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint, dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court," together with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications of policy raised by said 1st Indorsement. The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he

apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention. The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled "Miguel Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of merit. In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with finality Mr Cuenco's Motion for Reconsideration. It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms. A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms: There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied) This is not the first time the Court has had occasion to rule on this matter. In Lecaroz v. Sandiganbayan, 1 the Court said: The broad power of the New Constitution vests the respondent court with jurisdiction over "public officers and employees, including those in government-owned or controlled corporations." There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides:

Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption." Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law.
Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that "judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)." The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a criminal action "in accordance with law" may not prosper. 2

The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are substantially reproduced in Article XI of the 1987 Constitution: Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Sec. 3 xxx xxx xxx (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment

proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court. It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings. The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M. Gonzales and Mr Miguel Cuenco. Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. Fernan, J., took no part. Guetierrez, J., J., is on leave. Footnotes 1 128 SCRA 324 [1984]. 2 Id., at 330-331; Emphasis supplied.

EN BANC

[G.R. No. 160261. November 10, 2003]

ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents, JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

[G.R. No. 160262. November 10, 2003]

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO,respondent-inintervention, SENATOR AQUILINO Q. PIMENTEL, respondent-inintervention.

[G.R. No. 160263. November 10, 2003]

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,petitioners-inintervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

[G.R. No. 160277. November 10, 2003]

FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO,

JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREONJALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-inintervention, SENATOR AQUILINO Q. PIMENTEL, respondent-inintervention.

[G.R. No. 160292. November 10, 2003]

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

[G.R. No. 160295. November 10, 2003]

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON,respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

[G.R. No. 160310. November 10, 2003]

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE

ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

[G.R. No. 160318. November 10, 2003]

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.

[G.R. No. 160342. November 10, 2003]

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83 HONORABLE

MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.

[G.R. No. 160343. November 10, 2003]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON,respondents.

[G.R. No. 160360. November 10, 2003]

CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

[G.R. No. 160365. November 10, 2003]

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTATIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA

AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.

[G.R. No. 160370. November 10, 2003]

FR.

RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.

[G.R. No. 160376. November 10, 2003]

NILO

A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.

[G.R. No. 160392. November 10, 2003]

VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.

[G.R. No. 160397. November 10, 2003]

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR.,petitioner.

[G.R. No. 160403. November 10, 2003]

PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

[G.R. No. 160405. November 10, 2003]

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE

SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT,respondents. DECISION
CARPIO-MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nations history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution. In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides:

ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the

Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules[1] approved by the 11th Congress. The relevant distinctions between these two Congresses House Impeachment Rules are shown in the following tabulation: 11TH CONGRESS RULES RULE II INITIATING IMPEACHMENT 12TH CONGRESS NEW RULES RULE V BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer,impeachment proceedings against such official aredeemed initiated on the day the

Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House.

Committee on Justice finds that the verified complaint and/or resolution against such official,as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House,impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

RULE V BAR AGAINST IMPEACHMENT

Section 14. Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and

underscoring supplied) On July 22, 2002, the House of Representatives adopted a Resolution,[2] sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).[3] On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint[4] (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices[5] of this Court for culpable violation of the Constitution, betrayal of the public trust and other high crimes.[6] The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,[7] and was referred to the House Committee on Justice on August 5, 2003[8] in accordance with Section 3(2) of Article XI of the Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was sufficient in form,[9] but voted to dismiss the same on October 22, 2003 for being insufficient in substance.[10] To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint[11] was filed with the Secretary General of the House[12] by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by abovementioned House Resolution. This second impeachment complaint was accompanied by a Resolution of Endorsement/Impeachment signed by at least one -third (1/3) of all the Members of the House of Representatives.[13] Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that [n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year.

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress,[14] posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ perpetually prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ perpetually prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG[15] andChavez v. PEA-Amari Coastal Bay Development Corporation,[16] prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings

are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as a class suit and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void. In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citingOposa v. Factoran[17] which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental

significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were absolutely without any legal power to do s o, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF). In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition forCertiorari and Prohibition as it pertains to a constitutional issue which they are trying to inculcate in the minds of their students, pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,[18] prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No.

160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum,[19] and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate. Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.[20] In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)[21] and Comment, praying that the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution.[22] Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a Petition for Leave to Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quoResolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a constitutional deadlock and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention. On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a Petition-in-Intervention with Leave to Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentels Comment and Attorneys Macalintal and Quadras Petition in Intervention were admitted. On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) b) c) d) locus standi of petitioners; ripeness(prematurity; mootness); political question/justiciability; Houses exclusive power to initiate all cases of impeachment;

e) f) g)

Senates sole power to try and decide all cases of impeachment; constitutionality of the House Rules on Impeachment vis-avis Section 3(5) of Article XI of the Constitution; and

judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim.

Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Courts power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission[23] after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. 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. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of

constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Italics in the original; emphasis and underscoring supplied)
[24]

As pointed out by Justice Laurel, this moderating power to determine the proper allocation of powers of the different branches of government and to direct the course of government along constitutional channels is inherent in all courts[25] as a necessary consequence of the judicial power itself , which is the power of the court to settle actual controversies involving rights which are legally demandable and enforceable. [26] Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has been set at rest by popular acquiescence for a period of more than one and a half centuries. To be sure, it was in the 1803 leading case of Marbury v. Madison[27] that the power of judicial review was first articulated by Chief Justice Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. (Italics in the original; emphasis supplied)
[28]

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts.[29] And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,[30] the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,[31] judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. (Emphasis and underscoring supplied)
[32]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them.[33] To him, [j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation.[34] To ensure the potency of the power of judicial review to curb grave abuse of discretion by any branch or instrumentalities of government, the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called expanded certiorari jurisdiction of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx

The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x
xxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. (Italics in the original; emphasis and underscoring supplied)
[35]

To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,[36] this Court, speaking through Chief Justice Enrique Fernando, declared:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum. (Emphasis and underscoring supplied)
[37]

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary[38] in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. (Emphasis and underscoring supplied supplied)
[39]

As it did in Nitafan v. Commissioner on Internal Revenue[40] where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may

also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. (Emphasis and underscoring supplied)
[41]

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,[42] this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. (Emphasis and underscoring supplied)
[43]

Likewise, still in Civil Liberties Union v. Executive Secretary,[44] this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. (Emphasis supplied)
[45]

If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the

force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. (Emphasis and underscoring supplied)
[46]

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review.[47] For his part, intervenor Senator Pimentel contends that the Senates sole power to try impeachment cases[48] (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senates power to determine constitutional questions relative to impeachment proceedings.[49] In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States.[50] Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief.[51] Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents and intervenors reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senates sole power to try and decide impeachment cases, as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,[52] [i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly

applicable because they have been dictated by different constitutional settings and needs.[53] Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, [w]e have cut the umbilical cord. The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also aduty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, [54] our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases,[55] provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride. [56] But did not the people also express their will when they instituted the abovementioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,[57] judicially discoverable standards for determining the validit y of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez[58] and Alejandrino v. Quezon,[59] cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,[60] this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,[61] in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an

action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. InBondoc v. Pineda,[62] this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,[63] it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,[64] it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,[65] it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. InAngara v. Electoral Commission,[66] it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and one section is not to be allowed to defeat another.[67] Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the

Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. (Italics in the original)
[68]

Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[69] Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury.Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest[70] and transcendental importance,[71] and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.[72] Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure [73] while the latter has constitutional underpinnings.[74] In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato[75] to clarify what is meant by locus standi and to distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by authorities thus: It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of

the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. xxx On the other hand, the question as to "real party in interest" is whether he is the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit. (Citations omitted)
[76]

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[77] In fine, when the proceeding involves the assertion of a public right,[78] the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.[79] Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.[80]

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.[81] This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.[82] Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.[83] While an association has legal personality to represent its members,[84] especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,[85] the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. [86] It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned[87] to enable the court to deal properly with all interests involved in the suit,[88] for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.[89] Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.[90] Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to

the public.[91] Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.[92] In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quad ras case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that they will suffer if this insidious scheme of the minority members of the House of Representatives is successful, this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a Petition -inIntervention with Leave to Intervene to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilons. He alleges that submitting to this Courts jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.

Lastly, as to Jaime N. Sorianos motion to interve ne, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayers suits as set forth in Dumlao v. Comelec,[93] to wit:

x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is being extracted and spent in violation of specific constitutional protection against abuses of legislative power, or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Citations omitted)
[94]

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing.

Ripeness and Prematurity In Tan v. Macapagal,[95] this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture.[96] Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are

presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The deans position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution [97] and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.

Justiciability In the leading case of Tanada v. Cuenco,[98] Chief Justice Roberto Concepcion defined the term political question, viz:

[T]he term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (Italics in the original)
[99]

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review. [100] In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies.[101] Even in the landmark 1988 case of Javellana v. Executive Secretary[102] which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify t his Courts power of judicial review and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the bodys indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an

encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as citizens assemblies or barangays. Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the

overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding. In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of political question was set up. There have been a number of other cases in the past. x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are

some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity. This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary. (Italics in the original; emphasis supplied)
[103]

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term judicial power but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression judicial power? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, judicial power includes and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power. (Emphasis supplied)
[104]

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty

which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with truly political questions. From this clarification it is gathered that there are two species of political questions: (1) truly political questions and (2) those which are not truly political questions. Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus,[105] this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. x x x
[106]

In Bengzon v. Senate Blue Ribbon Committee,[107] through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, (t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases. (Emphasis and underscoring supplied)
[108]

And in Daza v. Singson,[109] speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. x x x (Emphasis and underscoring supplied.)
[110]

Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr[111] attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. (Underscoring supplied)
[112]

Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a nonjusticiable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue

would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.[113] Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.[114] Clearly, the issue calls upon this court to decide a nonjusticiable political question which is beyond the scope of its judicial power under Section 1, Article VIII.

Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,[115] this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable. [Emphasis and underscoring supplied]
[116]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,[117] where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself. [Emphasis supplied]
[118]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied.[119] In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution[120] calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary.[121] Without going into the merits of petitioners Alfonso, et. al.s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Courts opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Courts ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,[122] viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be in aid of legislation in accordance with its duly published rules of procedure and that the rights of persons appearing in or affected by such inquiries shall be respected. It follows then that the right rights of persons under the Bill of Rights must be respected,

including the right to due process and the right not be compelled to testify against ones self.
[123]

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the verified complaint or resolution of impeachment was not filed by at least one-third of all the Members of the House. With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a Resolution of Endorsement. Intervenors point to the Verification of the Resolution of Endorsement which states that:

We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x
[124]

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin forthwith, is that the verified complaint be filed, not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

Intervenors foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives whosigned and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latters arguments and issues as their own. Consequently, they are not unduly prejudiced by this Courts decision. In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12 th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et. al. argue that [t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment.[125] But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred.[126] Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions. [127] In the august words of amicus curiae Father Bernas, jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty. Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so.[128] On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness.[129] After all, by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office.[130] The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal.[131] In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunals membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senatorselect, six of whom would inevitably have to sit in

judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,[132] it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices. (Italics in the original)
[133]

Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba,[134] this Court, through Justice Marcelo Fernan cited the seven pillars of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis inAshwander v. TVA[135] as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly

suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act. 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. . . . It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted).
The foregoing pillars of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have standing to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case.[136]

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary. They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.[137] Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioners prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows.
[138]

Thus, in Javellana v. Executive Secretary[139] where this Court was split and in the end there were not enough votes either to grant the petitions, or to sustain respondents claims,[140] the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit:[141]

Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought to protect and enforce it without fear or favor, resist encroachments by governments, political parties, or even the interference of their own personal beliefs.
Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress

[142]

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term initiate does not mean to file; that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean to file because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collectivebody, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term initiate. Resort to statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of initiate as to file, as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of initiating included the act of taking initial action on the complaint, dissipates any doubt that indeed the word initiate as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. Initiate of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Websters Third New International Dictionary of the English Language concisely puts it, it mean s to perform or facilitate the first action, which jibes with Justice Regalados position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is deemed initiated when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say impeachment proceedings are initiated but rather are deemed initiated. The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the

impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: to initiate impeachment proceedings and the comma (,) and insert on line 19 after the word resolution the phrase WITH THE ARTICLES, and then capitalize the letter i in impeachment and replace the word by with OF, so that the whole section will now read: A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF

the Committee or to override its contrary resolution. The vote of each Member shall be recorded. I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words Articles of Impeachment are mentioned on line 25 in the case of the direct filing of a verified compliant of onethird of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President. (Italics in the original; emphasis and udnerscoring supplied)
[143]

This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.[144] It is thus clear that the framers intended initiation to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that the obvious reason in deleting the phrase to initiate impeachment proceedings as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedingswhich was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution.[145] Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word initiate as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word initiate, appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied)
refers to two objects, impeachment case and impeachment proceeding.

Father Bernas explains that in these two provisions, the common verb is to initiate. The object in the first sentence is impeachment case. The object in the second sentence is impeachment proceeding. Following the principle of reddendo singuala sinuilis, the term cases must be distinguished from the term proceedings. An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has exclusive power to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a proceeding must be followed to arrive at a conclusion. A proceeding must be initiated. To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House initiates an impeachment case. It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment case before the Senate as impeachment court. Father Bernas further explains: The impeachment proceeding is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the impeachment proceeding initiated when the Hou se deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings, this was met by a proposal to delete the line on the ground that the v ote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.[146] Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, No impeachment proceeding shall be initiated against the same official more than once within a period of one year, it means that no second verified complaint may be accepted and referred to

the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of to initiate which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says The House of Representatives shall have the exclusive power to initiate all cases of impeachment, This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating impeachment cases with impeachment proceeding. From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term to initiate refers to the filing of the impeachment complaint coupled with Congress taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term initiate a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino[147] wherein this Court stated that their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Courts our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings. Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latters balanced perspectives and disinterestedness. [148] Justice Gutierrezs statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986

Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that The Congre ss shall promulgate its rules on impeachment to effectively carry out the purpose of this section . Clearly, its power to promulgate its rules on impeachment is limited by the phrase to effectively carry out the purpose of this section. Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would

by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun,[149] this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted disorderly behavior of its members. However, in Paceta v. Secretary of the Commission on Appointments,[150] Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,[151] declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,[152] quoting United States v. Ballin, Joseph & Co.,[153] Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are nonjusticiable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: x x x The Constitution, in the same section, provides, that each house may determine the rules of its proceedings. It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the

names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers.
[154]

xxx

In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts x x x 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. This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political

question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government.
[155]

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.
[156]

xxx

The provision defining judicial power as including the duty of the courts of justice. . . 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 constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x
xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise

this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners. (Italics in the original emphasis and underscoring supplied)
[157]

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives rely on Nixon v. US[158] as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that the House of Representatives shall have the sole power of impeachment. It adds nothing more. It gives no clue whatsoever as to how this sole power is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that exclusive power is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term initiate a meaning different from filing.

Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution.

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

Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of lack of jurisdiction, non-justiciability, and judicial self-restraint aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter

or problem that squarely falls under the Courts jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison detre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branchs official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the laws moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than

anybody else. The law is solicitous of every individuals rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED. Davide, Jr., C.J., no part. Bellosillo, J., see separate opinion. Puno, and Ynares-Santiago, JJ., see concurring and dissenting opinion. Vitug, J., please see separate opinion (concurring). Panganiban, and Callejo, Sr., JJ., see separate concurring opinion. Sandoval-Gutierrez, J., see separate and concurring opinion Quisumbing, J., concurring separate opinion received. Carpio, J., concur. Austria-Martinez, J., concur in the majority opinion and in the separate opinion of Justice Vitug. Corona, J., will write a separate concurring opinion. Azcuna, J., concur in the separate opinion. Tinga, J., concur. Please see separate opinion.

[1]

Rollo, G.R. No. 160261 at 180-182; Annex H. Per Special Appearance with Manifestation of House Speaker Jose C. De Venecia, Jr. ( Rollo, G.R. No. 160261 at 325-363) the pertinent House Resolution is HR No. 260, but no copy of the same was submitted before this Court. Id. at 329. Created through PD No. 1949 (July 18, 1984), the JDF was establish ed to help ensure and guarantee the independence of the Judiciary as mandated by the Constitution and public policy and required by the impartial administration of justice by creating a special fund to augment the allowances of the members and personnel of the Judiciary and to finance the acquisition, maintenance and repair of office equipment and facilities. Rollo, G.R. No. 160261 at 120-139; Annex E.

[2]

[3]

[4]

[5]

The initial complaint impleaded only Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T. Carpio and Renato C. Corona, and was later amended to include Justices Jose C. Vitug, and Leonardo A. Quisumbing. Supra note 4 at 123-124. Rollo, G.R. No. 160403 at 48-53; Annex A. http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=RPT9999 Rollo, G.R. No. 160262 at 8. Rollo, G.R. No. 160295 at 11. Rollo, G.R. No. 160262 at 43-84; Annex B. Supra note 2. A perusal of the attachments submitted by the various petitioners reveals the following signatories to the second impeachment complaint and the accompanying Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac (principal complainant) 2. Felix Fuentebella, NPC, Camarines Sur (second principal complainant) 3. Julio Ledesma, IV, NPC, Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig City 5. Kim Bernardo-Lokin, Party List-CIBAC 6. Marcelino Libanan, NPC, Lone District of Eastern Samar, (Chairman, House Committee on Justice) 7. Emmylou st Talino-Santos, Independent, 1 District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st District, st Davao del Sur 9. Sherwin Gatchalian, NPC, 1 District, Valenzuela City 10. Luis Bersamin, Jr., th PDSP-PPC, Lone District of Abra 11. Nerissa Soon-Ruiz Alayon, 6 District, Cebu 12. Ernesto st nd Nieva, Lakas, 1 District, Manila 13. Edgar R. Erice, Lakas, 2 District, Kalookan City 14. Ismael nd Mathay III, Independent, 2 District, Quezon City 15. Samuel Dangwa, Reporma, Lone District of nd Benguet 16. Alfredo Maraon, Jr., NPC, 2 District, Negros Occidental 17. Cecilia Jalosjosst nd Carreon, Reporma, 1 District, Zamboanga del Norte 18. Agapito A. Aquino, LDP, 2 District, rd Makati City 19. Fausto L. Seachon, Jr., NPC, 3 District, Masbate 20. Georgilu Yumul-Hermida, th rd Pwersa ng Masa, 4 District, Quezon 21. Jose Carlos Lacson, Lakas, 3 District, Negros st Occidental 22. Manuel C. Ortega, NPC, 1 District, La Union 23. Uliran Joaquin, NPC, st 1 District, Laguna 24. Soraya C. Jaafar, Lakas, Lone District of Tawi-Tawi 25. Wilhelmino Syst nd Alvarado, Lakas, 1 District, Bulacan 26. Claude P. Bautista, NPC, 2 District, Davao Del Sur 27. Del De Guzman, Lakas, Lone District of Marikina City 28. Zeneida Cruz-Ducut, NPC, nd nd 2 District, Pampanga 29. Augusto Baculio, Independent-LDP, 2 District, Misamis Oriental 30. rd nd Faustino Dy III, NPC-Lakas, 3 District, Isabela 31. Agusto Boboy Syjuco, Lakas, 2 District, Iloilo 32. Rozzano Rufino B. Biazon, LDP, Lone District of Muntinlupa City 33. Leovigildo B. st nd Banaag, NPC-Lakas, 1 District, Agusan del Norte 34. Eric Singson, LP, 2 District, Ilocos st Sur 35. Jacinto Paras, Lakas, 1 District, Negros Oriental 36. Jose Solis, Independent, nd 2 District, Sorsogon 37. Renato B. Magtubo, Party List-Partido ng Manggagawa 38. Herminio rd nd G. Teves, Lakas, 3 District, Negros Oriental 39. Amado T. Espino, Jr., Lakas, 2 District, nd Pangasinan 40. Emilio Macias, NPC, 2 District, Negros Oriental 41. Arthur Y. Pingoy, Jr., NPC, nd st 2 District, South Cotobato 42. Francis Nepomuceno, NPC, 1 District, Pampanga 43. Conrado th M. Estrella III, NPC, 6 District, Pangasinan 44. Elias Bulut, Jr., NPC, Lone District of Apayao 45. Jurdin Jesus M. Romualdo, NPC, Lone District of Camiguin 46. Juan Pablo Bondoc, th rd NPC, 4 District, Pampanga 47. Generoso DC. Tulagan, NPC, 3 District, Pangasinan 48. st Perpetuo Ylagan, Lakas, Lone District of Romblon 49. Michael Duavit, NPC, 1 District, th rd Rizal 50. Joseph Ace H. Durano, NPC, 5 District, Cebu 51. Jesli Lapus, NPC, 3 District, th Tarlac 52. Carlos Q. Cojuangco, NPC, 4 District, Negros Occidental 53. Georgidi B. Aggabao, th st NPC, 4 District, Santiago, Isabela 54. Francis Escudero, NPC, 1 District, Sorsogon 55. Rene M. Velarde, Party List-Buhay 56. Celso L. Lobregat, LDP, Lone District of Zamboanga City 57. st Alipio Cirilo V. Badelles, NPC, 1 District, Lanao del Norte 58. Didagen P. Dilangalen, Pwersa ng nd Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP, 2 District, Palawan 60. Joseph Santiago, NPC, Lone District of Catanduanes 61. Darlene Antonino-Custodio, NPC, st rd 1 District of South Cotobato & General Santos City 62. Aleta C. Suarez, LP, 3 District, Quezon 63. Rodolfo G. Plaza, NPC, Lone District of Agusan del Sur 64. JV Bautista, Party List-

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

Sanlakas 65. Gregorio Ipong, NPC, 2 District, North Cotabato 66. Gilbert C. Remulla, LDP, nd th 2 District, Cavite 67. Rolex T. Suplico, LDP, 5 District, Iloilo 68. Celia Layus, NPC, rd Cagayan 69. Juan Miguel Zubiri, Lakas, 3 District, Bukidnon 70. Benasing Macarambon Jr,. nd NPC, 2 District, Lanao del Sur 71. Josefina Joson, NPC, Lone District of Nueva Ecija 72. Mark th Cojuangco, NPC, 5 District, Pangasinan 73. Mauricio Domogan, Lakas, Lone District of Baguio City 74. Ronaldo B. Zamora, Pwersa ng Masa, Lone District of San Juan 75. Angelo O. Montilla, nd NPC, Lone District of Sultan Kudarat 76. Roseller L. Barinaga, NPC, 2 District, Zamboanga del nd Norte 77. Jesnar R. Falcon, NPC, 2 District, Surigao del Sur 78. Ruy Elias Lopez, NPC, rd 3 District, Davao City.
[14]

nd

Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two separate impeachment complaints before the House of Representatives against Ombudsman Aniano Desierto. 299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez argued that as a taxpayer and a citizen, he had the legal personality to file a petition demanding that the PCGG make public any and all negotiations and agreements pertaining to the PCGGs task of recovering the Marcoses ill -gotten wealth. Petitioner Chavez further argued that the matter of recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the public. The Supreme Court, citing Taada v. Tuvera, 136 SCRA 27 (1985), Legaspi v. Civil Service Commission, 150 SCRA 530 (1987) and Albano v. Reyes, 175 SCRA 264 (1989) ruled that petitioner had standing. The Court, however, went on to elaborate that in any event, the question on the standing of petitioner Chavez was rendered moot by the intervention of the Jopsons who are among the legitimate claimants to the Marcos wealth. 384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay Development Corporation, wherein the petition sought to compel the Public Estates Authority (PEA) to disclose all facts on its then ongoing negotiations with Amari Coastal Development Corporation to reclaim portions of Manila Bay, the Supreme Court said that petitioner Chavez had the standing to bring a taxpayers suit because the petition sought to compel PEA to comply with its constitutional duties. 224 SCRA 792 (1993). Subsequent petitions were filed before this Court seeking similar relief. Other than the petitions, this Court also received Motions for Intervention from among others, Sen. Aquilino Pimentel, Jr., and Special Appearances by House Speaker Jose C. de Venecia, Jr., and Senate President Franklin Drilon. Supra note 2 at 10. Justice Florenz D. Regalado, Former Constitutional Commissioners Justice Regalado E. Maambong and Father Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former Minister of Justice and Solicitor General Estelito P. Mendoza, Deans Pacifico Agabin and Raul C. Pangalangan, and Former Senate President Jovito R. Salonga,. Rollo, G.R. No. 160261 at 275-292. Id. at 292. 63 Phil 139 (1936). Id. at 157-159. Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Taada v. Cuenco, 103 Phil 1051 (1957); Ynot v. Intermediate Appellate Court, 148 SCRA 659, 665 (1987). CONST., art. VIII, sec. 1. 5 US 137 (1803). Id. at 180.

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[29]

In In re Prautch, 1 Phil 132 (1902), this Court held that a statute allowing for imprisonment for nonpayment of a debt was invalid. In Casanovas v. Hord, 8 Phil 125 (1907), this Court invalidated a statute imposing a tax on mining claims on the ground that a government grant stipulating that the payment of certain taxes by the grantee would be in lieu of other taxes was a contractual obligation which could not be impaired by subsequent legislation. InConcepcion v. Paredes, 42 Phil 599 (1921), Section 148 (2) of the Administrative Code, as amended, which provided that judges of the first instance with the same salaries would, by lot, exchange judicial districts every five years, was declared invalid for being a usurpation of the power of appointment vested in the Governor General. In McDaniel v. Apacible, 42 Phil 749 (1922), Act No. 2932, in so far as it declares open to lease lands containing petroleum which have been validly located and held, was declared invalid for being a depravation of property without due process of law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922), Act No. 2868, in so far as it authorized the Governor-General to fix the price of rice by proclamation and to make the sale of rice in violation of such a proclamation a crime, was declared an invalid delegation of legislative power. VICENTE V. MENDOZA, SHARING THE PASSION AND ACTION OF OUR TIME 62-53 (2003). Supra note 23. Id. at 156-157. Florentino P. Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial Review And Decision Making, 37 AMJJUR 17, 24 (1992). Ibid. I RECORD OF THE CONSTITUTIONAL COMMISSION 434-436 (1986). 31 SCRA 413 (1970) Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770 (1988); Luz Farms v. Secretary of the Department of Agrarian Reform, 192 SCRA 51 (1990); Ordillo v. Commission on Elections, 192 SCRA 100 (1990). 194 SCRA 317 (1991). Id. at 325 citing Maxwell v. Dow, 176 US 581. 152 SCRA 284 (1987). Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259 (1938), J.M. Tuason & Co., Inc v. Land Tenure Administration, supra note 36, and I TAADA AND FERNANDO, CONSTITUTION OF THE PHILIPPINES 21 (Fourth Ed.). 82 Phil 771 (1949). Id. at 775. Supra note 38. Id. at 330-331. Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111 Pa. 365, 3 Atl. 220 and Household Finance Corporation v. Shaffner, 203, SW 2d, 734, 356 Mo. 808. Supra note 2. Citing Section 3 (6), Article VIII of the Constitution provides: (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote.

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No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.
[49]

Supra note 21. 506 U.S. 224 (1993). Supra note 2 at 349-350 citing Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis, 1996, p. 119. 227 SCRA 100 (1993). Id. at 112. US Constititon. Section 2. x x x The House of Representatives shall have the sole Power of Impeachment. 1987 Constitution, Article XI, Section 3 (1). The House of Representatives shall have the exclusive power to initiate all cases of impeachment. Supra note 2 at 355 citing AGRESTO, DEMOCRACY, 1984, pp. 112-113. 369 U.S. 186 (1962). 141 SCRA 263 (1986). Supra note 25. 298 SCRA 756 (1998). 272 SCRA 18 (1997). 201 SCRA 792 (1991). 187 SCRA 377 (1990). 180 SCRA 496 (1989). Supra note 25. Supra note 23. Civil Liberties Union v. Executive Secretary, supra note 38 at 330-331. Id. at 158-159. IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568 (1993); House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987); Baker v. Carr, supra note 57. Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995). Citing Tatad v. Secretary of the Department of Energy , 281 SCRA 330 (1997). Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas , 163 SCRA 371, 378 (1988). Rule 3, Section 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000). 246 SCRA 540 (1995). THE SUPREME COURT AND CONSTITUTIONAL

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Id. at 562-564. Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563 (2000) and Baker v. Carr, supra note 57; Vide Gonzales v. Narvasa,, 337 SCRA 733 (2000); TELEBAP v. COMELEC, 289 SCRA 337 (1998). Chavez v. PCGG, supra note 15. Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v. Morato, supra note 70; Dumlao v. COMELEC, 95 SCRA 392 (1980); Sanidad v. Comelec, 73 SCRA 333 (1976); Philconsa v. Mathay, 18 SCRA 300 (1966); Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note 77; Pelaez v. Auditor General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay & Corn Planters Association v. Feliciano, 13 SCRA 377 (1965). BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252 (1989); Vide Del Mar v. PAGCOR, supra note 79; Gonzales v. Narvasa, supra note 77; TELEBAP v. COMELEC, supra note 77; Kilosbayan, Inc. v. Morato, supra note 70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note 79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor General, supra note 79;Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn Planters Association v. Feliciano , supra note 79; Pascual v. Sec. of Public Works, supra note 79. Gonzales v. Narvasa, supra note 77 citing Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note 79; Tan v. Macapagal, 43 SCRA 677 (1972). Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v. Morato, supra note 70 at 140-141 citing Philconsa v. Enriquez, 235 SCRA 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. COMELEC, 41 SCRA 702 (1971). Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa v. Mathay, supra note 79. Chinese Flour Importers Association v. Price Stabilization Board , 89 Phil 439, 461 (1951) citing Gallego et al. vs. Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz, 4245. Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v. Hechanova, 118 Phil. 1065 (1963); Pascual v. Secretary, supra note 79. Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000). MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, G.R. No. 135306 , January 28, 2003, citing Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62. Mathay v. Consolidated Bank and Trust Company , 58 SCRA 559, 570-571 (1974), citing Moore's Federal Practice 2d ed., Vol. III, pages 3423-3424; 4 Federal Rules Service, pages 454-455; Johnson, et al., vs. Riverland Levee Dist., et al., 117 2d 711, 715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925). MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines , supra note 87, dissenting opinion of Justice Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs of the Passengers of Doa Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B, 23-257, 23-258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section 12, Rule 3, Rules of Court; Mathay v. Consolidated Bank and Trust Co., supra note 88; Oposa v. Factoran, supra note 17. Kilosbayan v. Guingona, 232 SCRA 110 (1994). Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties Union v. Executive Secretary, supra note 38; Philconsa v. Gimnez, supra note 79; Iloilo Palay and Corn Planters Association v. Feliciano,

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supra note 79; Araneta v. Dinglasan, 84 Phil. 368 (1949); vide Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Santiago v. COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225 SCRA 368 (1993); Carpio v. Executive Secretary, 206 SCRA 290 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Daza v. Singson, supra note 64; Dumlao v. COMELEC, supra note 79.
[92]

Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, 531 (1999) citing Gibson vs. Revilla, 92 SCRA 219; Magsaysay-Labrador v. Court of Appeals, 180 SCRA 266, 271 (1989). Supra note 79. Id. at 403. Supra note 81. Id. at 681. SECTION 3. x x x A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

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Supra note 25. Id. at 1067. Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v. Castaeda, 91 Phil. 882 (1952); De la Llana v. COMELEC, 80 SCRA 525 (1977). Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v. COMELEC, 3 SCRA 1 (1961); Cunanan v. Tan, Jr., 5 SCRA 1 (1962); Gonzales v. COMELEC, 21 SCRA 774 (1967); Lansang v. Garcia, 42 SCRA 448 (1971); Tolentino v. COMELEC, supra note 82. 50 SCRA 30 (1973). RECORD OF THE CONSTITUTION COMMISSION, Vol. 1, July 10, 1986 at 434-436. Id. at 439-443. 177 SCRA 668 (1989). Id. at 695. 203 SCRA 767 (1991). Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 (1990). Supra note 64. Id. at 501. Supra note 57. Id at 217

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2 RECORD OF THE CONSTITUTIONAL COMMISSION at 286. Id. at 278, 316, 272, 283-284, 286. 76 Phil 516 (1946). Id. at 522. Supra note 37. Id. at 58 citing Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343 (1989). Vide concurring opinion of Justice Vicente Mendoza in Estrada v.Desierto, 353 SCRA 452, 550 (2001); Demetria v. Alba, 148 SCRA 208, 210-211 (1987) citing Ashwander v. TVA, 297 U.S. 288 (1936). As adverted to earlier, neither a copy the Resolution nor a record of the hearings conducted by the House Committee on Justice pursuant to said Resolution was submitted to the Court by any of the parties. Rollo, G.R. No. 160310 at 38. Supra note 107. Id. at 777 (citations omitted). Rollo, G.R. No. 160262 at 73. Supra note 2 at 342. Perfecto v. Meer, 85 Phil 552, 553 (1950). Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide Abbas v. Senate Electoral Tribunal, 166 SCRA 651 (1988); Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316 (1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring opinion of J. Concepcion. Philippine Judges Association v. Prado, 227 SCRA 703, 705 (1993). Ibid. Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986). Supra note 127. Estrada v. Desierto, supra note 127. Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal , supra note 127; Vargas v. Rilloraza, et al., supra note 127. Supra note 119 at 210-211. Supra note 119. Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya v. PCGG, supra note 69 at 575; Macasiano v. National Housing Authority, 224 SCRA 236, 242 (1993); Santos III v. Northwestern Airlines, 210 SCRA 256, 261-262 (1992), National Economic Protectionism Association v. Ongpin, 171 SCRA 657, 665 (1989). Supra note 2 at 353. Supra note 33 at 32. Supra note 102. Supra note 33.

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249 SCRA 244, 251 (1995). Id. at 251. 2 RECORDS OF THE CONSTITUTIONAL COMMISSION at 342-416. Id. at 416. Commissioner Maambongs Amicus Curiae Brief at 15. 2 RECORD OF THE CONSTITUTIONAL COMMISSION at 375-376, 416 77 Phil. 192 (1946). Justice Hugo Guiterrezs Amicus Curiae Brief at 7. 109 Phil. 863 (1960). 40 SCRA 58, 68 (1971). 286 U.S. 6, 33 (1932). 277 SCRA 268, 286 (1997). 144 U.S. 1 (1862). Supra note 152 at 304-306. Id at 311. Id. at 313. Supra note 152 at 314-315. Supra note 50.

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Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 10-7-17-SC February 8, 2011

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO. RESOLUTION PER CURIAM: Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano Del Castillo in connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo.1 Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. This claim is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term. Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is "to steal and pass off as ones own" the ideas or words of another. Stealing implies malicious taking. Blacks Law Dictionary, the worlds leading English law dictionary quoted by the Court in its decision, defines plagiarism as the "deliberate and knowing presentation of another person's original ideas or creative expressions as ones own."2 The presentation of another persons ideas as ones own must be deliberate or premeditateda taking with ill intent.

There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident or in good faith. Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of Academic Integrity ordains that "plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to ones self what is not ones work , whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Students who plead ignorance or appeal to lack of malice are not excused."3 But the Courts decision in the present case does not set aside such norm. The decision makes this clear, thus: To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writers thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.4 Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodying results of original research, substantiating a specific view.5 This must be so since the writing is intended to earn for the student an academic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations, and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy. But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism. Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certain schools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its face the students work shows as a whole that he has but committed an obvious mistake or a clerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his diploma. In contrast, decisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes is a service rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of flesh and blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interest of society in written decisions is not that they are originally crafted but that they are fair and correct in the context of the particular disputes involved. Justice, not originality, form, and style, is the object of every decision of a court of law. There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are "to stand by precedent and not to disturb settled point." Once the Court has "laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same."6

And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators. Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability. Thus: The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone.7 The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook: A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a partys brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.8 If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciarys more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism. This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the judges creativity. It is hereactually the substance of their decisionsthat their genius, originality, and honest labor can be found, of which they should be proud.

In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. He identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the law relevant to their resolution. It was here that he drew materials from various sources, including the three foreign authors cited in the charges against him. He compared the divergent views these present as they developed in history. He then explained why the Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was original. He had but done an honest work. The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done. This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice. As Duncan Webb said: In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole sections of a judges words to lend weight to a particular point either with or without attribution. The words of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this place is given to Halsburys Laws of England which is widely considered authoritative. A lawyer can do little better than to frame an argument or claim to fit with the articulation of the law in Halsburys. While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution. xxxx The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.9 The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losing party. But it is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school of law, have unfairly maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to attribute lifted passages from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism as the world in general knows it. True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed researcher, she accidentally deleted the same at the time she was

cleaning up the final draft. The Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law.
1aw phi 1

Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The authors concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his own. With our ruling, the Court need not dwell long on petitioners allegations that Justice Del Castillo had also committed plagiarism in writing for the Court his decision in another case, Ang Ladlad v. Commission on Elections.10 Petitioners are nit-picking. Upon close examination and as Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact made attributions to passages in such decision that he borrowed from his sources although they at times suffered in formatting lapses. Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines for leave to file and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyos claim of other instances of alleged plagiarism in the Vinuya decision. ACCORDINGLY, the Court DENIES petitioners motion for reconsideration for lack of merit. SO ORDERED. RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice

JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

Footnotes
1

April 28, 2010. Blacks Law Dictionary (8th Edition, 2004). Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.

In the Matter of the Charges of Plagiarism, etc., Against Associate Justice Mariano C. Del Castillo, A.M. No. 10-7-17-SC, October 12, 2010.
5

Websters Third New International Dictionary, p. 2374. Blacks Law Dictionary (6th Edition, 1990), p. 1406.

Duncan Webb, Plagiarism: A Threat to Lawyers Integrity? Published by the International Bar Association, available online at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc2ef7cd-3207-43d6-9e8716c3bc2be595.
7 8

Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by Justice Maria Lourdes Sereno in her dissenting opinion.
9

Supra note 7. G.R. No. 190582, April 8, 2010.

10

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION CARPIO, J.: I dissent on two grounds. First, this Court has no jurisdiction to decide in an administrative case whether a sitting Justice of this Court has committed misconduct in office as this power belongs exclusively to Congress. Second, in writing judicial decisions a judge must comply with the Law on Copyright1 as the judge has no power to exempt himself from the mandatory requirements of the law. I. Disciplining Authority of Impeachable Officers

Under the Constitution, the sole disciplining authority of all impeachable officers, including Justices of this Court, is Congress. Section 3(1), Article XI of the Constitution provides that, "The House of Representatives shall have the exclusive power to initiate all cases of impeachment." Likewise, Section 3(6) of the same Article provides that, "The Senate shall have the sole power to try and decide cases of impeachment." These provisions constitute Congress as the exclusive authority to discipline all impeachable officers for any impeachable offense, including "betrayal of public trust," a "catchall phrase"2 to cover any misconduct involving breach of public trust by an impeachable officer. While impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinary proceedings against impeachable officers. Impeachable officers are not subject to administrative disciplinary proceedings either by the Executive or Judicial branch, in the same manner that non-impeachable officers are subject. Thus, impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no other authority that can administratively discipline impeachable officers.3 Removal from office and disqualification to hold public office,4 which is the penalty for an impeachable offense,5 is also the most severe penalty that can be imposed in administrative disciplinary proceedings. Impeachment is not a criminal proceeding because conviction in an impeachment complaint is not a bar to criminal prosecution for the same act.6 An impeachable offense, like betrayal of public trust, may not even constitute a criminal act. Like in an administrative proceeding, proof beyond reasonable doubt is not required for conviction in impeachment. If an impeachable officer is charged of a crime, as distinguished from an administrative charge, the proper court has jurisdiction to try such impeachable officer because the proceeding is criminal, not administrative. However, neither the conviction nor acquittal of such impeachable officer in the criminal case constitutes a bar to his subsequent impeachment by Congress. There is no double jeopardy because impeachment is not a criminal proceeding.7 Only Congress, as the exclusive disciplining authority of all impeachable officers, can decide in a non-criminal, non-civil proceeding8 whether a sitting Justice of this Court has committed plagiarism. Plagiarism is a betrayal of public trust because, as the majority puts it, to plagiarize is "to steal and pass off as ones own the ideas of another."9 However, in writing judicial decisions a judge is liable for plagiarism only if the copying violates the moral rights of the author under the Law on Copyright. This Court may conduct an investigation of an administrative complaint against a sitting Justice to determine if there is basis in recommending to the House of Representatives the initiation of an impeachment complaint against the sitting Justice. This Court may also conduct an investigation of an administrative complaint against a sitting Justice to determine if the complaint constitutes contempt of this Court. However, this Court has no power to decide on the guilt or innocence of a sitting Justice in the administrative complaint because such act is a usurpation of the exclusive disciplinary power of Congress over impeachable officers under the Constitution. Any decision by this Court in an administrative case clearing a sitting Justice of an impeachable offense is void for want of jurisdiction and for violation of an express provision of the Constitution. Such a decision will put this Court on a collision course with Congress if subsequently an impeachment complaint for plagiarism is filed with Congress against the sitting Justice. Incidentally, an impeachment complaint has already been filed in the House of Representatives involving the same complaint subject of this administrative case. If the House of Representatives decides to take cognizance of the complaint and initiates an impeachment based on the same administrative complaint that this Court had already dismissed as baseless, then this Court would have created a constitutional crisis that could only weaken the publics faith in the primacy of the Constitution.

The Supreme Court cannot assume jurisdiction over an administrative complaint against a sitting Justice of this Court by invoking Section 6, Article VIII of the Constitution. This provision states that the "Supreme Court shall have administrative supervision over all courts and the personnel thereof." This provision refers to the administrative supervision that the Department of Justice used to exercise over the courts and their personnel, as shown by the folowing exchange during the deliberations of the Constitutional Commission: MR. GUINGONA: xxx. The second question has reference to Section 9, about the administrative supervision over all courts to be retained in the Supreme Court. I was wondering if the Committee had taken into consideration the proposed resolution for the transfer of the administrative supervision from the Supreme Court to the Ministry of Justice. But as far as I know, none of the proponents had been invited to explain or defend the proposed resolution. Also, I wonder if the Committee also took into consideration the fact that the UP Law Constitution Project in its Volume I, entitled: Annotated Provision had, in fact, made this an alternative proposal, the transfer of administrative supervision from the Supreme Court to the Ministry of Justice. Thank you. MR. CONCEPCION: May I refer the question to Commissioner Regalado? THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is recognized. MR. REGALADO: Thank you, Mr. Presiding Officer. We did invite Minister Neptali Gonzales, who was the proponent for the transfer of supervision of the lower courts to the Ministry of Justice. I even personally called up and sent a letter or a short note inviting him, but the good Minister unfortunately was enmeshed in a lot of official commitments. We wanted to hear him because the Solicitor General of his office, Sedfrey Ordoez, appeared before us, and asked for the maintenance of the present arrangement wherein the supervision over lower courts is with the Supreme Court. But aside from that, although there were no resource persons, we did further studies on the feasibility of transferring the supervision over the lower courts to the Ministry of Justice. All those things were taken into consideration motu proprio.10 For sure, the disciplinary authority of the Supreme Court over judges is expressly govened by another provision, that is, Section 11, Article VIII of the Constitution. Section 11 provides: Section 11. xxx The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis supplied) Clearly, the disciplinary authority of the Supreme Court over judges is found in Section 11 of Article VIII. However, this disciplinary authority is expressly limited to lower court judges, and does not incude Supreme Court Justices, precisely because the Constitution expressly vests exclusively on Congress the power to discipline Supreme Court Justices. By excluding Supreme Court Justices, Section 11 withholdsfrom the Supreme Court en banc the power to discipline its own members. The Judicial Conduct and Disability Act of 1980 of the United States, which gives judicial councilscomposed of federal judges the power to discipline federal judges short of removal from

office, doesnot apply to Justices of the United States Supreme Court who are subject to discipline only by the United States Congress. Morever, a similar law cannot be enacted in the Philippines bacause all lower court judges are subject to discipline by the Supreme Court en banc under Section 11, Article VIII of the Constitution. Thus, reference to the Judicial Conduct and Disability Act of 1980 is inappropriate in this jurisdiction. I submit that this Court recall the Resolution of 12 October 2010 subject of the present motion for reconsideration for lack of jurisdiction to decide the administrative complaint against Justice Mariano C. Del Castillo. II. The Judge Must Follow the Law on Copyright a. Copying from Works of the Government In writing judicial decisions, a judge should make the proper attribution in copying passages from anyjudicial decision, statute, regulation, or other Works of the Government. The Manual of Judicial Writing adopted11 by this Court provides how such attribution should be made. However, the failure to make such attribution does not violate the Law on Copyright.12 The law expressly provides that Works of the Government are not subject to copyright.13 This means that there is neither a legal right by anyone to demand attribution, nor any legal obligation from anyone to make an attribution, when Works of the Government are copied. The failure to make the proper attribution of a Work of the Government is not actionable but is merely a case of sloppy writing. Clearly, there is no legal obligation, by a judge or by any person, to make an attribution when copying Works of the Government. However, misquoting or twisting, with or without attribution, any judicial decision, statute, regulation or other Works of the Government in judicial writing, if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge "should perform official duties honestly."14 Rule 3.01]15 and Rule 3.0216 of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the applicable law. The foregoing applies to any non-copyrightable work, and any work in the public domain, whether local or foreign. b. Copying from Pleadings of Parties In writing judicial decisions, the judge may copy passages from the pleadings of the parties with proper attribution to the author of the pleading. However, the failure to make the proper attribution is not actionable. Pleadings are submitted to the court precisely so that the pleas, or the arguments written on the pleadings, are accepted by the judge. There is an implied offer by the pleader that the judge may make any use of the pleadings in resolving the case. If the judge accepts the pleaders arguments, he may copy such arguments to expedite the resolution of the case. In writing his decision, the judge does not claim as his own the arguments he adopts from the pleadings of the parties. Besides, the legal arguments in the pleadings are in most cases merely reiterations of judicial precedents, which are Works of the Government.

However, misquoting or twisting, with or without attribution, any passage from the pleadings of the parties,if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge "should perform official duties honestly." Rule 3.01 and Rule 3.02 of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the applicable law. c. Copying from Textbooks, Journals and other Non-Government Works In writing judicial decisions, the judge may copy passages from textbooks, journals and other nongovernment works with proper attribution. However, whether the failure to make the proper attribution is actionable or not depends on the nature of the passages copied. If the work copied without proper attribution is copyrighted, the failure to make such attribution violates Section 193 of the Intellectual Property Code, which provides: Section 193. Scope of Moral Rights. The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: 193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; xxxx 193.3 To object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would be prejudicial to his honor or reputation; x x x x. (Emphasis supplied) Section 184(k) of the Intellectual Property Code expressly allows, as a limitation on the copyright or economic rights of the author, "any use made of a work for the purpose of any judicial proceedings x x x."17 Section 184(k) clearly authorizes a judge to copy copyrighted works for "any use" in judicial proceedings, which means the judge, in writing his decision, can copy passages beyond the quantitative limitations of "fair-use" under Section 184(b). This is the significance of Section 184(k), allowing the judge to copy lengthy passages of copyrighted work even beyond what is required by fair-use. Section 184(k) is silent on the obligation of the judge to make the proper attribution, unlike Section 184(b) on fair-use by the public which expressly requires a proper attribution. However, Section 193 nevertheless requires anyone, including a judge writing a judicial decision, to make the proper attribution to show respect for the moral rights of the author. Thus, while the author has no right to demand economic compensation from the judge or the government for the unlimited and public use of his work in a judicial decision, the law requires that "the authorship of the works be attributed to him x x x in connection with the public use of his work." In short, the judge is legally obligated to make the proper attribution because Section 193 protects the moral rights of the author. The moral rights under Section 193 of the Intellectual Property Code arise only if the work of an author is copyrighted. If the work is not copyrighted, then there are no moral rights to the work. If the passages in a textbook, journal article, or other non-work of the government are merely quotations

from Works of the Government, like sentences or paragraphs taken from judicial decisions, then such passages if copied by a judge do not require attribution because such passages, by themselves, are Works of the Government. The same is true for works in the public domain. However, the arrangement or presentation of passages copied from Works of the Government may be subject to copyright,18 and a judge copying such arrangement or presentation, together with the passages, may have to make the proper attribution. If the passages are those of the author himself, and not copied from Works of the Government or from works in the public domain, then clearly there is a legal obligation on the part of the judge to make the proper attribution. Failure by the judge to make such attribution violates not only Section 193 of the Intellectual Property Code, but also Canon 3 of the Code of Judicial Conduct. The moral rights of an author are independent of the authors economic rights to his work in the sense that even if the author assigns his work, the moral rights to the work remain with him, being inalienable.19Any violation of an authors moral rights entitles him to the same remedies as a violation of the economic rights to the work,20 whether such economic rights are still with him or have been assigned to another party. Thus, while called "moral rights," these rights are legally enforceable. Two essential elements of an authors moral rights are the right to attribution and the right to integrity. The right to attribution or paternity21 is the right of the author to be recognized as the originator or father of his work, a right expressly recognized in Section 193.1 of the Intellectual Property Code. The right to integrity is the right of the author to prevent any distortion or misrepresentation of his work, a right expressly recognized in Section 193.3 of the Code. The Legislature incorporated the moral rights of an author in the Intellectual Property Code in compliance with the treaty obligations of the Philippines under the Berne Convention, which requires treaty states to enact legislation protecting the moral rights of authors.22 The rationale behind moral rights is explained in a local intellectual property textbook, citing American jurisprudence: The term moral rights has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artists personality, as well as the integrity of the work, should therefore be protected and preserved. Because they are personal to the artist, moral rights exist independently of an artists copyright in his or her work.While the rubric of moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence: attribution and integrity. The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the authors work from being attributed to someone else, and to prevent the use of the authors name on works created by others, including distorted editions of the authors original work. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title of the work has been transferred. In some jurisdictions, the integrity right also protects artwork from destruction. Whether or not a work of art is protected from destruction represents a fundamentally different perception of the purpose of moral rights. If integrity is meant to stress the public interest in preserving a nations culture, destruction is prohibited; if the right is meant to emphasize the authors personality, destruction is seen as less harmful than the continued display of deformed or mutilated work that misrepresents the artist and destruction may proceed.23 (Emphasis supplied) When a judge respects the right to attribution and integrity of an author, then the judge observes intellectual honesty in writing his decisions. Writing decisions is the most important official duty of a

judge, more so of appellate court judges. Conversely, if a judge fails to respect an authors right to attribution and integrity, then the judge fails to observe intellectual honesty in the performance of his official duties, a violation of Canon 3 of the Code of Judicial Conduct. The duty of a judge to respect the moral rights of an author is certainly not burdensome on the performance of his official duties. All the reference materials that a judge needs in writing judicial decisions are either Works of the Government or works in the public domain. A judge must base his decision on the facts and the law,24 and the facts and the law are all in the public domain.There is no need for a judge to refer to copyrighted works. When a judge ventures to refer to copyrighted works by copying passages from such works, he immediately knows he is treading on protected works, and should readily respect the rights of the authors of those works. The judge, whose most important function is to write judicial decisions, must be the first to respect the rights of writers whose lives and passions are dedicated to writing for the education of humankind. Besides, Section 184(k) of the Intellectual Property Code already generously allows the judge unlimited copying of copyrighted works in writing his judicial decisions. The Code, however, does not exempt the judge from recognizing the moral rights of the author. The basic rule of human relations, as embodied in Article 19 of the Civil Code, requires that the judge should give to the author of the copyrighted work what is due him. Thus, Article 19 states: "Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith." d. Difference from the Academe Academic writing, such as writing dissertations or articles in academic journals, is governed by standards different from judicial decision writing. The failure to make the proper attribution for passages copied from Works of the Government is not actionable against a judge when writing a judicial decision. However, the same failure by a student or a faculty member may be deemed plagiarism in the academe, meriting a severe administrative penalty. Nevertheless, the Judiciary and the academe should have the same rule when it comes to copyrighted works. In every case, there is a legal duty to make the proper attribution when copying passages from copyrighted works because the law expressly requires such attribution without exception. The academe requires that passages copied from Works of the Government, works in the public domain, and non-copyrighted works should be properly attributed in the same way as copyrighted works. The rationale is to separate the original work of the writer from the works of other authors in order to determine the original contribution of the writer to the development of a particular art or science. This rationale does not apply to the Judiciary, where adherence to jurisprudential precedence is the rule. However, if a judge writes an article for a law journal, he is bound by the same rules governing academic writing.25 ACCORDINGLY, I vote to RECALL the Resolution of 12 October 2010 subject of the present motion for reconsideration as this Courts jurisdiction extends only to a determination whether the administrative complaint against Justice Mariano C. Del Castillo constitutes contempt of this Court. ANTONIO T. CARPIO Associate Justice

Footnotes

Part IV, Intellectual Property Decree (Republic Act No. 8293).

Volume II, Records of the Constitutional Commission, p. 272. The following exchange took place during the deliberations of the Constitutional Commission: MR. REGALADO: Thank you, Madam President. xxx First, this is with respect to Section 2, on the grounds for impeachment, and I quote: . . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust. Just for the record, what would the Committee envision as a betrayal of the public trust which is not otherwise covered by the other terms antecedent thereto? MR. ROMULO: I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of a public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed that trust. MR. REGALADO: Thank you. MR. MONSOD: Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks. THE PRESIDENT: Commissioner de los Reyes is recognized. MR. DE LOS REYES: The reason I proposed this amendment is that during the Regular Batasang Pambansa when there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President. Thank you. MR. ROMULO: If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think, obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as a betrayal of the public trust. Thank you. (Emphasis supplied)
3

The 1993 Report of the National Commission on Judicial Discipline & Removal of the United States (http://judicial-discipline-

reform.org/judicial_complaints/1993_Report_Removal.pdf, pp. 17-18) concluded thatimpeachment is the exclusive mode of removing federal judges from office, thus: Nevertheless, the Commission concludes that Congress may not provide for removal as a criminal penalty. If removal may lawfully follow on conviction for a federal judge, then it may do so for the Vice President of the United States or perhaps even the President. But if the constitutional grant of a term of office to the Vice President and President prevails against any provision for removal in the criminal law, the same should be true of the tenure the Constitution grants to judges. The Constitution quite explicitly separates impeachment and removal from the ordinary criminal process. The Commission does not believe that Congress's power to punish crimes is an exception to judicial life tenure, or alternatively a way in which good behavior may be inquired into, in the way that the impeachment process clearly is. xxxx The Commission concludes that a statute providing for the removal from office of judges who serve on good behavior under Article III by means other than impeachment and conviction would be unconstitutional. (Emphasis supplied; citations omitted)
4

Section 3(7), Article XI of the Constitution provides: "Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law."
5

There are those who, with good reason, believe that removal from office is the maximum penalty in impeachment and thus there can be lesser penalties like censure. See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale Law & Policy Review 53 (1999).
6

See note 4.

Professor Laurence H. Tribe writes: "The independence of the process of impeachment and criminal prosecution is highlighted by the case of Judge Alcee Hastings, who was acquitted of bribery by a federal jury in 1983, but was subsequently impeached by the House and convicted by the Senate for the same offense and for testifying falsely about it under oath at his federal criminal trial. Similarly, Judge Walter Nixon was impeached by the House and convicted by the Senate in 1989 for falsely testifying under oath before a federal grand jury investigating Judge Nixons improper discussions with a state prosecutor in a case involving a business acquaintances son, despite an earlier acquittal in a federal prosecution for bribery arising out of those very events. And, although this precise sequence is not addressed by Article I, Section 3, clause 7, it should also be possible for an official to be acquitted by the Senate in an impeachment trial but subsequently convicted of the same underlying acts in a federal court. The Senates acquittal, after all, could well represent a determination merely that the charged offenses were not impeachable, or that the nation would be harmed more than protected by pronouncing the official guilty." American Constitutional Law, Volume 1 (3rd edition), pp. 159-160.
8

An author whose moral rights under the Law on Copyright are infringed by a judge in his judicial decision may file a civil case in court against such judge. See discussion on The Judge Must Follow the Law on Copyright,infra.

Quoting Blacks Law Dictionary. Volume I, Records of the Constitutional Commission, pp. 456-457. Approved by the En Banc on 15 November 2005.

10

11

12

Part IV of RA No. 8293, otherwise known as the "Intellectual Property Code of the Philippines."
13

Section 176 of RA No. 8293 provides: "Works of the Government. No copyright shall subsist in any work of the Government of the Philippines. xxx."
14

Canon 3 of the Code of Judicial Conduct provides: "A judge should perform official duties honestly, and with impartiality and diligence."
15

Rule 3.01 of the Code of Judicial Conduct provides: "A judge shall be faithful to the law and maintain professional competence."
16

Rule 3.02 of the Code of Judicial Conduct provides: "In every case, a judge shall endeavour diligently to ascertain the facts and the applicable law, unswayed by partisan interests, public opinion or fear of criticism."
17

Section 184 (k) of RA No. 8293 provides: "Limitations on Copyright. 184.1. Notwithstanding the provisions of Chapter V [on copyright and economic rights], the following acts shall not constitute infringement of copyright: (a) x x x x xxxx (k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner."
18

Section173.1 (b), Intellectual Property Code.

19

Section 198.1 of the Intellectual Property Code provides that the "[moral] rights of an author x x x shall not be assignable or subject to license."
20

Section 119, Intellectual Property Code. Roger E. Schechter and John R. Thomas, Intellectual Property (2003), p. 19. Vicente B. Amador, Copyright under the Intellectual Property Code (1998), p. 570.

21

22

23

Id. p. 569, citing John Carter, John Swing and John Veronis v. Helmsley-Spear, Inc. and Associates, U.S. Court of Appeals for 2nd Circuit, 1 December 1995.
24

Article 8 of the Civil Code provides: "Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines."

25

In the Matter of Hon. Thomas E. Brennan, Jr., Judge, 55th District, Mason, Michigan, 433 Mich. 1204, 447 N.W.2d 712 (6 November 1989) . In this case, Judge Brennan, Jr. submitted an article to a law review for publication. The article failed to acknowledge several passages copied from law journal articles of two other authors. The Michigan Judicial Tenure Commission recommended to the Supreme Court of Michigan that Judge Brennan, Jr. be publicly censured for misconduct. Interestingly, Judge Brennan, Jr. (a state judge) admitted his misconduct and made the following manifestation: Respondent Thomas E. Brennan, Jr., of the 55th District Court, Ingham County, Michigan, acknowledges notice and receipt of the Judicial Tenure Commission's Decision and Recommendation for Order of Discipline dated September 12, 1989, and stipulates to the Judicial Tenure Commission's findings as recited in paragraphs one (1) through six (6) thereof; Respondent further affirmatively acknowledges the impropriety of his conduct as set forth in the Decision and Recommendation for Order of Discipline, and pursuant to MCR 9.221(C), consents to the Commission's recommendation that he be publicly censured. Respondent further concurs in the request of the Judicial Tenure Commission that an order embodying the foregoing disciplinary action be entered immediately by the Michigan Supreme Court. (Emphasis supplied)

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION SERENO, J.: Judges need not strain themselves to meet inapplicable standards of research and attribution of sources in their judicial opinions, nor seek to achieve the scholarly rigidity or thoroughness observed in academic work. They need to answer to only two standards diligence and honesty. By honesty here is meant that good faith attempt to attribute to the author his original words and analysis. Even if a judge has to rely in large part on the drafts of his legal researchers, the work of a diligent and honest judge will never display the severe plagiarism evident in the Vinuya Decision published under the name of Justice Mariano C. del Castillo. A judge will only find himself in the same predicament as Justice del Castillo if two situations coincide: (1) the judge wittingly or unwittingly entrusts a legal researcher with the task of drafting his judicial opinion, and the legal researcher decides to commit severe plagiarism; and (2) the judge: (a) does not read and study the draft decision himself; (b) even if he does read and study the same, the "red flags" that are self-evident in the draft decision completely escape him; or (c) despite having seen the red flags, he ignores them. We use the words "severe plagiarism" here deliberately because not only were three (3) works of the four (4) complaining authors1 plagiarized in Vinuya, text from the following copyrighted works was copied without attribution as well: essays contributed by Robert McCorquodale and Phoebe Okowa to the book International Law, edited by Malcolm Evans; an article written by Mariana Salazar Albornoz, entitled Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary

Challenges; an article written by Elizabeth Prochaska, entitled Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada; a report by Larry Niksch, entitled Japanese Militarys Comfort Women; and an article by James Ladino, entitled Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121. In addition, incorporated into Vinuya were excerpts from a decision of an international tribunal without any signal given to the reader that the words were not those of Justice del Castillo of the Philippine Supreme Court but the words of another tribunal. While there are views that a judge cannot be guilty of plagiarism for failure to recognize foreign decisions as source materials in ones judicial writing as when Justice Antonio C. Carpio opines that a judge cannot be guilty on this score alone it is beyond debate that there is a duty of care to attribute to these foreign and international judicial decisions properly, and that one should never present these materials as if they are ones own. An estimate of the extent of the plagiarism in the Vinuya Decision has been made by my office. The best approximation available to us, using the "word count" feature of Microsoft Word, reveals that 52.9% of the words used in the VinuyaDecisions discussion on international law, which begins in page 24 and continues to the end (2,869 out of 5,419 words), are copied without attribution from other works. The Vinuya Decision, therefore, because of the severity of the plagiarism attending it, is the worst possible context for the Majority to draw, in its Decision dated 12 October 2010 and in its Resolution denying the Motion for Reconsideration, the following conclusions: 1. that plagiarism requires the element of "malicious intent"; 2. that calibrating its ruling in response to the outcry of the academic community after the Majority Decision was issued the rules against plagiarism applicable to the academic community do not apply to judicial decisions; 3. that the standard of attribution applicable to judicial decisions is effectively, no standard at all a judge cannot be guilty of plagiarism as understood by the academic world, and neither is he liable for copying without attribution, even from copyrighted materials; 4. that this lack of liability extends as well to benefit lawyers in the submission of their pleadings before courts; and 5. that on the whole, the Vinuya Decision is the product of hard, honest, original work. In the course of the resolution of the Motion for Reconsideration, I have found myself counteraccused of having copied the works of others without attribution. I have debunked each of these claims and lay them bare in this Dissent. I have even proven that it was one of my co-authored works that was copied without attribution being given to me and to my co-authors. The theory propounded against me is that I cannot conclude that the Vinuya Decision is partly a product of plagiarism unless I am willing to call myself a plagiarist as well. I emphasize, however, my original thesis that a diligent and honest judge or researcher will never find himself to have plagiarized, even unwittingly, to the same extent that plagiarism occurred in the Vinuya Decision. Herein lies the safety of a researcher a habit of trying to give recognition where recognition is due. Should any of my works, wherein I failed to make proper attribution, surface, I will do what I have recommended that the author of the Vinuya Decision do: acknowledge the wrong, apologize to the wronged, and correct the work. See pages 58 to 75 herein for a discussion on the counter-accusations leveled against me.

Irrespective of the outcome of my analysis, let it be stated that this Dissent does not make any pronouncement regarding the jurisdiction of this Court over the complaint for plagiarism against Justice del Castillo. My esteemed colleague Justice Carpio is convinced that Congress is the sole disciplining authority of all impeachable officers, including Justices of the Supreme Court. He characterizes plagiarism as a betrayal of public trust, and thus, "impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no other power that can administratively discipline impeachable officers."2 I. The Flow of the Analysis in This Dissent A. Parameters To allay any concern from members of the judiciary, I have been very careful to underscore the limitations of my analysis of the Vinuya Decision. My Dissent of 12 October 2010 is very clear: In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.3 To be categorical, a judge or legal researcher cannot be guilty for using doctrines that have been incorporated into the mainstream and are standard terms of trade. Neither is a judge required to use quotation marks or blockquotes every time there is a reference to allegations in the pleadings of parties, or when he is discussing legal arguments using already accepted legal doctrines. It is when he ventures into using the original words of others, especially those of legal scholars, that he must be particularly careful. He cannot write to pass off the words of others, especially those of others pioneering works, as his own. To do so is dishonest. It has also been suggested that Justice del Castillo cannot be guilty of plagiarism as he never read the work of Mariana Salazar Albornoz. That argument is neither here nor there. At the very least, the words he copied were those of another in an important original analysis of the state of international law on rape. B. Structure of the Technical Analysis in This Dissent The structure and rigidity of the Technical Analysis in this Dissent is necessary to fulfill two purposes: (1) to enable the reader to examine whether I have scientific and objective basis to conclude that severe plagiarism characterizes theVinuya Decision; and (2) to examine whether I am willing to subject my work to the same standards to which I have subjected the Vinuya Decision. One interesting note. My professional record had been vetted by the Judicial and Bar Council prior to my appointment to this Court. My previous works those of an academic and those of a pleader are presently being, and, I expect will continue to be, thoroughly scrutinized. While those previous works form part of the basis of my appointment, inasmuch as they are proof of my competence and expertise, they cannot serve as a basis to determine whether I am now performing my duties as a judge satisfactorily. One can view the scrutiny as an unwarranted collateral attack on my record. This did not happen until my Dissent of 12 October 2010. The first part of the Technical Analysis consists of new tables of comparison presenting more instances of plagiarism as they occur in the Vinuya Decision. Two of these tables deal with copied works that previously appeared in my earlier Dissent: A Fiduciary Theory of Jus Cogens, by Evan J. Criddle and Evan Fox-Decent, and Breaking the Silence: Rape as an International Crime by Mark

Ellis; however, the entries for these tables present instances of plagiarism not discussed or presented in my Dissent of 12 October 2010. Following the tables are lists of violations of rules against plagiarism, each list item corresponding to one table entry. Following the presentation of the tables, the process whereby plagiarism could have been committed in Vinuya is examined. The severe extent of plagiarism, which is already evident in the tables, is discussed further, followed by an analysis of the systematic commission of plagiarism in Vinuya. This analysis consists of the detailed dissection of specific parts of the Vinuya decision: the text of the body in pages 31-32, and the first paragraph of footnote 65. The research process purportedly used by the legal researcher of Vinuya is then broken down into separate steps that illustrate the decision points at which an honest and diligent researcher would have ensured that proper attribution to sources be given. This is then followed by a closer examination of the deletion of existing citations and the features of Microsoft Word relevant to the deletion of footnotes. II. Technical Analysis of Plagiarism in Vinuya A. More Plagiarism Below are new tables of comparison excluding materials in tables already discussed in my earlier Dissent to the majority Decision in AM 10-7-17-SC of excerpts from the Decision in Vinuya vis-a-vis text from one (1) book on international law, five (5) foreign law journal articles, and a copyrighted report of the United States Congressional Research Service. While the degree of seriousness of the offense of unattributed copying varies with the kind of material copied, the extent of the copying conveys the level of honesty or dishonesty of the work done with respect to the Vinuya Decision. The extent of copying enumerated in these tables also renders incredible the claim of mechanical failure, as well as the alleged lack of intent on the part of the researcher to not give proper attribution. The materials for comparison were first identified in the Motion for Reconsideration and in the letter of Dr. Peter B. Payoyo, a Filipino legal scholar residing in the Netherlands, addressed to the Chief Justice dated 28 October 2010. These excerpts were independently verified, and compared with the corresponding portions from the original works. In the course of independent verification, we came across three more unattributed copied works. TABLES OF COMPARISON To aid an objective analysis of the extent and manner of the plagiarism committed in the Vinuya Decision, below are tables of comparison that will compare three written works: (1) the plagiarized work; (2) the Vinuya Decision; and (3) the purported "original" source analyzed or cited by the concerned authors and by the Vinuya Decision. The left column pertains to the literary works allegedly plagiarized by the legal researcher in the Vinuya Decision. The middle column refers to the pertinent passage in the Vinuya Decision that makes unattributed use of the copied work. According to the Majority Resolution, these citations made to original sources (e.g. to the international law cases being referenced to support a certain point) in the Vinuya Decision are sufficient to refute the charges of non-attribution. To address this claim, I have chosen to add a third column to present the text of the source referred to in the nearest (location-wise and/or context-wise) citation or attribution made in the Vinuya Decision. This will allow us to determine whether the analysis, reference and/or collation of original sources were those of the allegedly plagiarized authors or are Vinuya originals. In addition, this three-column presentation will also allow us to examine the claim being made by Justice del Castillo that at least two of the authors whose works are allegedly plagiarized in the Vinuya Decision themselves violated academic scholarship rules against plagiarism.

TABLE A: Comparison of Evan J. Criddle & Evan Fox-Decents article in the Yale Journal of International Law, entitled A Fiduciary Theory of Jus Cogens (2009) and the Supreme Courts 28 April 2010 Decision in Vinuya v. Executive Secretary. The Allegedly Plagiarized Work Evan J. Criddle & Evan FoxDecent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int'l L. 331 (2009). 1. ...judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.[10] [10] For example, in the 1934 Oscar Chinn Case, Judge Schcking's influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schcking, J., dissenting). (p. 335 of Criddle and FoxDecent)

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.

International Source Being Analyzed by Criddle and Fox-Decent ...It is an essential principle of any court, whether national or international, that the judges may only recognize legal rules which they hold to be valid. There is nothing to show that it was intended to disregard that legal principle when this Court was instituted, or that it was to be obliged to found its decisions on the ideas of the partieswhich may be entirely wrongas to the law to be applied in a given case. The Court would never, for instance, apply a convention the terms of which were contrary to public morality. But, in my view, a tribunal finds itself in the same position if

...Judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions. (For example, in the 1934 Oscar Chinn Case, Judge Schcking's influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schcking, J., dissenting). (p. 31, footnote 71 of Vinuya)

a convention adduced by the parties is in reality null and void, owing to a flaw in its origin. The attitude of the tribunal should, in my opinion, be governed in such a case by considerations of international public policy, even when jurisdiction is conferred on the Court by virtue of a Special Agreement. Source: The Oscar Chinn Case (U.K. v. Belg.), 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (separate opinion of Judge Schcking). 2. While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment on Preliminary Objections in Armed Activities on the Territory of the Congo (Congo v. Rwanda), it declined to clarify jus cogens's legal status or to specify any criteria for identifying peremptory norms.[67] [67] Armed Activities on the Territory of the Congo, Jurisdiction of the Court and Admissibility of the Application While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment on Preliminary Objections in Armed Activities on the territory of the Congo (Congo v. Rwanda), it declined to clarify jus cogenss legal status or to specify any criteria for identifying peremptory norms. (Armed Activities on the Territory of the Congo, Jurisdiction of the Court and Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of February 3, 2006), [64]....The Court observes, however, as it has already had occasion to emphasize, that "the erga omnescharacter of a norm and the rule of consent to jurisdiction are two different things"..., and that the mere

(Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 31-32, available at http://www.icjcij.org/docket/files/126/10435.pdf (last visited Mar. 31, 2009). (p. 346, footnote 67 of Criddle and Fox-Decent)

at 31-32, available at fact that rights http://www.icjand cij.org/docket/files/126/10435.pdf. obligations erga omnes may be at issue in a (p. 32, footnote 77 of Vinuya) dispute would not give the Court jurisdiction to entertain that dispute. The same applies to the relationship between peremptory norms of general international law (jus cogens)and the establishment of the Courts jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Courts Statute that jurisdiction is always based on the consent of the parties.

Source: Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 6, 31-32 (Feb. 3). 3. Similarly, the European Court of Human Rights has addressed jus cogens only once, in AlAdsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.[75] [75] Shelton, supra note 3, at 309 (discussing Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61). (p. 347 of Criddle and FoxDecent) [77] Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61) (p. 32, footnote 77 of Vinuya) [61] While the Court accepts, on the basis of these authorities, that the prohibition of torture has achieved the status of a peremptory norm in international law, it observes that the present case concerns the immunity of a State in a civil suit for damages in respect of acts of torture within the territory of that State. Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that,

as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged. Source: Al-Adsani v United Kingdom, App. No. 35763/97, 34 Eur. H.R. Rep. 11, par. 61 (2002)(21 Nov. 2001). TABLE B: Comparison of Mark Elliss article entitled Breaking the Silence: Rape as an International Crime (2006-2007) and the Supreme Courts 28 April 2010 Decision in Vinuya v. Executive Secretary. The Allegedly Copied Work

The Decision International Source Being Analyzed by Ellis

Mark Elliss article entitled Vinuya v. Executive Breaking the Silence: Rape Secretary, G.R. No. as an International Crime 162230, 28 April 2010. 38 Case W. Res. J. Intl. L. 225(2006-2007). 1. A major step in this legal development came in 1949, when rape and sexual assault were included in the Geneva Conventions.... Rape is included in the following acts committed against persons protected by the 1949 Geneva Conventions: "wilful killing, torture or inhuman treatment, including biological experiments; wilfully causing great suffering or [65] A major step in this legal development came in 1949, when rape and sexual assault were included in the Geneva Conventions. Rape is included in the following acts committed against persons protected by the 1949 Geneva Conventions: "willful killing, torture or inhuman treatment, including biological experiments; willfully causing great suffering or

[Article 50/51/147] Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury

serious injury to body or health." [65] Fourth Geneva Convention, supra note 23, art. 147. (p. 236 of Ellis)

serious injury to body or health." (SeeGeneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c). (p. 28, footnote 65 of Vinuya)

to body or health. Source: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 973; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Article 3 (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; Source: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the

2. Rape as a violation of the laws or customs of war generally consists of violations of Article 3 of the 1949 Geneva Conventions, which, in part, prohibits "violence to life and person, in particular mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment."[66] 66 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75

[65] Rape as a violation of the laws or customs of war generally consists of violations of Article 3 of the 1949 Geneva Conventions, which, in part, prohibits "violence to life and person, in particular mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment." (SeeGeneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention Relative to the

U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c).... (p. 236 of Ellis)

Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c). (p. 28, footnote 65 of Vinuya)

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 973; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Article 27 Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Source: Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Article 76.-Protection of women 1. Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault. Source: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3.

3. Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states that "women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault."[67] [67] Fourth Geneva Convention, supra note 23, art. 27. (pp. 236 of Ellis) 4. Protocol I of the Geneva Conventions continues to expand the protected rights by providing that "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any form of indecent assault."[68]

[65] Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states that "women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." (p. 28, footnote 65 of Vinuya)

[65] Protocol I of the Geneva Conventions continues to expand the protected rights by providing that "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any form of indecent assault." (Protocol Additional to the Geneva [68] Protocol Additional to the Geneva Conventions of Conventions of August 12, 1949, and Relating to the 12 August 1949, and Protection of Victims of Relating to the Protection International Armed of Victims of International Conflicts (Protocol I), Armed Conflicts (Protocol Article 76(1), 1125 I), Article 76(1), 1125 U.N.T.S. 4). U.N.T.S. 4. (pp. 236-237 of Ellis) (p. 28, footnote 65 of

Vinuya) TABLE C: Comparison of Robert McCorquodales work, entitled The Individual and the International Legal System,4and Phoebe Okowas work, entitled Issues of Admissibility and the Law on International Responsibility,5 both of which were published in Malcolm Evanss book (International Law), and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Essays published in Malcolm Evans, International Law (ed., 2006). 1. Traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individuals behalf. Even then, it is not the individuals international rights that are being asserted but the States own rights. (p. 315-16 of Evanss International Law book, essay written by McCorquodale)

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individuals behalf.[55] Even then, it is not the individuals rights that are being asserted, but rather, the states own rights. [55] Appeal from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser. A/B No. 61, p. 208 at 231. (p. 24, Body of Vinuya) International Source Being Analyzed and Used by McCorquodale / Okowa

Note: Page 231 of the Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal case the citation nearest in location and in context to the passage does not contain a discussion on "persuad[ing] a government to bring a claim on the individuals behalf." The reference to Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal case occurs inMcCorquodale as footnote 14, four sentences before the passage copied by Vinuya, and is made following the quote, it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself. In McCorquodale, the citation following the

discussion on how "it is not the individuals international rights that are being asserted but the States own rights" is written thus in footnote 16: [16] PanevezeysSaldutiskis Railway, Judgment, PCIJ, Ser A/B, No 76, p 4. CfLaGrand (Germany v United States of America), Merits, Judgment, ICJ Reports 2001, p 466, para 42. 2. The conceptual understanding that individuals have rights and responsibilities in the international legal system does not automatically mean that they have the ability to bring international claims to assert their rights or are able to claim an immunity to prevent their responsibilities being enforced (Hohfeld, above). Thus the PCIJ declared that it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself.[14] [14] Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser A/B, No 61, p 208 at p 231 (p. 315 of Evanss International Law book, essay written byMcCorquodale) 3. The decisions of national courts on these constitutional provisions Even decisions of national courts support the thesis that general international Note: In Okowas essay, this [55] The conceptual understanding that individuals have rights and responsibilities in the international arena does not automatically mean that they have the ability to bring international claims to assert their rights. Thus, the Permanent Court of International Justice declared that "it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself." Appeal from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser. A/B No. 61, p. 208 at 231. (p. 24, footnote 55 of Vinuya) Again, it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself. No argument against the University's personality in law can therefore be deduced from the fact that it did not enjoy the free disposal of the property in question.... Source: Appeal from a Judgment of the HungaroCzechoslovak Mixed Arbitral Tribunal (Peter Pzmny University v. Czechoslovakia), 1933 P.C.I.J. 208, (ser. A/B) No. 61, at 231 (Dec. 15).

nevertheless support the thesis that general international law as it stands does not mandate an enforceable legal duty of diplomatic protection.[17] [17] Kaunda and others v President of the Republic of South Africa and others, Case CCCT23/04. In the Hess Decision BverfGE, 55, 349, 90 ILR 386, the German Federal Constitutional Court upheld the existence of a federal constitutional right to diplomatic protection but denied that it was required by customary international law. See alsoAbbasi v Sec of Foreign and Commonwealth Affairs and Sec of Home Office [2002] EWCA Civ 1598, 6 November 2002. (p. 484 of Evanss International Law book, essay written byOkowa) 4. This position was been challenged in the UK in a case arising from the clearly internationally unlawful detention by the US of prisoners in Guantanamo Bay from the time of the Afghanistan conflict in 2001. In Abassi v Secretary of State for Foreign and Commonwealth Affairs[19] the applicant (a British national) sought judicial review of the adequacy of the diplomatic actions of the British government with

law as it stands does not mandate an enforceable legal duty of diplomatic protection. (p. 26, footnote 63 of Vinuya)

statement follows a paragraph in which she discusses Kaundain the context of discretionary diplomatic protection. Thus, for the pertinent passages ofKaunda please see entry 5 of this table.

[63] has been challenged in the UK in a case arising from the unlawful detention by the US of prisoners in Guantanamo Bay from the time of the Afghanistan conflict in 2001. In Abbasi v Secretary of State for Foreign and Commonwealth Affairs ([2002] EWCA Civ 1316, 19 September 2002) the applicant (a British national) sought judicial review of the adequacy of the diplomatic actions of the British government with

1. Feroz Ali Abbasi, the first claimant, is a British national.... They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done. ... 107. ...On no view would it be appropriate to order the Secretary of State to

the US government. (p. 316 of Evanss International Law book, essay written byMcCorquodale)

the US government. (p. 26, footnote 63 of Vinuya)

make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy. Source: Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, 42 I.L.M. 358, 359-383 (2003)(Nov. 6)(U.K.).

5.

The South African Constitutional Court in Kaunda and others v President of the Republic of South Africa and others[16] recognized the constitutional basis of the right of diplomatic protection as enshrined in the South African constitution, but went on to hold that the nature and extent of his obligation was an aspect of foreign policy within the discretion of the executive. [16] Kaunda and others v. President of the Republic of South Africa and others, Case CCCT23/04. (p. 484 of Evanss International Law book, essay written by Okowa)

[63] The South African Constitutional Court in Kaunda and others v. President of the Republic of South Africa and others (Case CCCT23/04) recognized the constitutional basis of the right of diplomatic protection as enshrined in the South African Constitution, but went on to hold that the nature and extent of this obligation was an aspect of foreign policy within the discretion of the executive. (p. 27, footnote 63 of Vinuya)

[65] The founding values of our Constitution include human dignity, equality and the advancement of human rights and freedoms. [69] There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms.... [73] A court cannot tell the government how to make diplomatic interventions for the protection of its nationals. [77] A decision as to whether, and if so, what protection should be

given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. Source: Kaunda v. President of the Republic of South Africa, 44 I.L.M. 173, pars. 65-77 (2005) (C. Ct. S. Afr.). TABLE D: Comparison of Mariana Salazar Albornozs article, Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges, and the Supreme Courts Decision in Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Mariana Salazar Albornoz, Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges, 6 Anuario Mexicano de Derecho Internacional 377 (2006) 1. Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case: By taking up the case of one of its subjects and by resorting to diplomatic action or international

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Purported "Original" Source Cited by the Concerned Authors and in the Vinuya Decision

Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case: By taking up the case of one of its subjects and by resorting to diplomatic action or international

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present

judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact, is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.[85] [85] Mavrommatis Palestine Concessions case, supra note 9, p. 12. The emphasis is ours. This traditional view was repeated by the PCIJ in the Panevezys-Saldutiskis Railway Case, the Case Concerning the Payment of Various Serbian Loans issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The ICJ has adopted it in the Reparation for injuries suffered in the service of the United Nations Advisory Opinion: ICJ Reports 1949, p. 174; the Nottebohm Case (second phase) Judgment of April 6th, 1955: ICJ Reports 1955, p. 4 at p. 24; the Interhandel Case (Judgment of March 21st,

judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact, is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.[56] [56] PCIJ, Ser. A, No. 2, p. 11, at 16. This traditional view was repeated by the PCIJ in the PanevezysSaldutiskis Railway Case, the Case Concerning the Payment of Various Serbian Loans issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The ICJ has adopted it in the Reparation for injuries suffered in the service of the United Nations Advisory Opinion: ICJ Reports 1949, p. 174; the Nottebohm Case (second phase) Judgment of April 6th, 1955: ICJ Reports 1955, p. 4 at p. 24; the Interhandel Case (Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27) and the Barcelona Traction Light

dispute originates in an injury to a private interest, which in point of fact, is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant. The fact that Great Britain and Greece are the opposing Parties to the dispute arising out of the Mavrommatis concessions is sufficient to make it a dispute between two States within the meaning of Article 26 of the Palestine Mandate. Source: Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A) No. 2, at 12 (Aug. 30).

1959: ICJ Reports 1959, p. 6 at p. 27) and the Barcelona Traction Light and Power Company, Limited case, supra note 6, at p. 32 par. 33. It has also been recognized by other international tribunals: see, for example, Administrative Decision No. V of the USGerman Claims Commission. (p. 397 of Albornoz) 2. Under this view, the considerations underlying the decision to exercise or not diplomatic protection may vary depending on each case and may rely entirely on policy considerations regardless of the interests of the directly-injured individual, and the State is not required to provide justification for its decision.[90] [90] See in this sense, Borchard E., Diplomatic Protection of Citizens Abroad, New York, The Banks Law Publishing Co., 1915, at VI. Also: G. Berlia, op. cit. (note 86), pp. 63 y 64. (p. 398 of Albornoz)

and Power Company, Limited case, (Belg. V. Spain), 1970 I.C.J. 3, 32 (Feb. 5). (p. 24 Body of Vinuya)

[57] See Borchard, E., Diplomatic Protection of Citizens Abroad at VI (1915). Under this view, the considerations underlying the decision to exercise or not diplomatic protection may vary depending on each case and may rely entirely on policy considerations regardless of the interests of the directly-injured individual, and the State is not required to provide justification for its decision. (p. 25, footnote 57 of Vinuya)

The citizen abroad has no legal right to require the diplomatic protection of his national government. Resort to this remedy of diplomatic protection is solely a right of the government, the justification and expediency of its employment being a matter for the governments unrestricted discretion. This protection is subject in its grant to such rules of municipal administrative law as the state may adopt, and in its exercise internationally to certain rules which custom has recognized. Source: Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims, vi (1914).

3.

The ILCs First Reading Draft Articles on diplomatic protection have fully attached to the traditional view on the legal nature of such institution. In this sense, (i) they expressly

The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support this traditional view. They (i) state that "the right of diplomatic protection

60. The texts of the draft articles on diplomatic protection with commentaries thereto adopted on first reading by the Commission at its fifty-sixth session, are

state that "the right of diplomatic protection belongs to or vests in the State", a statement which "gives recognition to the Vattelian notion that an injury to a national is an indirect injury to the State";[96] (ii) they affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State;[97] and stressing that the state "has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so."[98]

belongs to or vests in the State,"[59] (ii) affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii) stress that the state "has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so."[61]

reproduced below. Article 2 stresses that the right of diplomatic protection belongs to or vests in the State. It gives recognition to the Vattelian notion that an injury to a national is an indirect injury to the State.[25] ... A State has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so. The internal law of a State may oblige a State to extend diplomatic protection to a national,[29] but international law imposes no such obligation.... Source: Text of the Draft Articles on Diplomatic Protection Adopted by the Commission on First Reading, Rep. of the Int'l. Law Comm'n, 56th Sess., 3 May-4 June and 5 July-6 August 2004, U.N. Doc. A/59/10 at 22-28, par. 60; GAOR, 59th Sess., Supp. 10 (2004). 74. The discretionary power of the State to intervene on behalf of its national is considered in the commentary on article 4.

[59] ILC First Reading Draft Articles on Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC Report, A/53/10 (F), par. 60, Commentary to Draft Article 2, par. (1); see also, [96] ILC First Reading Draft Commentary to Draft Articles on Diplomatic Article 1, par. (3), and text Protection, supra note 13, of Draft Article 2. par. 60, Commentary to Draft Article 2, par. (1); see [60] Report of the also, Commentary to Draft International Law Article 1, par. (3), and text Commission on the work of of Draft Article 2. its 50th session, supra note 60, par. 77. [97] Report of the International Law [61] ILC First Reading Draft Commission on the work of Articles on Diplomatic its 50th session, supra note Protection, supra note 60, 13, par. 77. commentary to Draft Article 2, par. (2). [98] ILC First Reading Draft Articles on Diplomatic (p. 25-26 Body of Vinuya) Protection, supra note 2, commentary to Draft Article 2, par. (2). (p. 400 of Albornoz) 4. Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision under which States would be internationally obliged to exercise diplomatic protection in favour of their nationals injured abroad by [62] Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision under which States would be internationally obliged to exercise diplomatic protection in favor of their nationals injured abroad by

grave breaches to their jus cogens norms, if the national so requested and if he/she was not afforded direct access to an international tribunal.[116

1. Unless the injured person is able to bring a claim for such injury before a competent international court or [116] The proposed article tribunal, the State of read as follows: "Article [4] his/her nationality has a 1. Unless the injured Article [4] 1. Unless the legal duty to exercise person is able to bring a injured person is able to diplomatic protection on claim for such injury before bring a claim for such injury behalf of the injured a competent international before a competent person upon request, if court or tribunal, the State international court or the injury results from a of his/her nationality has a tribunal, the State of grave breach of a jus legal duty to exercise his/her nationality has a cogens norm attributable diplomatic protection on legal duty to exercise to another State. behalf of the injured person diplomatic protection on upon request, if the injury behalf of the injured person 2. The State of nationality results from a grave breach upon request, if the injury is relieved of this of a jus cogens norm results from a grave breach obligation if: attributable to another of a jus cogens norm State. 2. The state of attributable to another (a) The exercise of nationality is relieved of this State. 2. The state of diplomatic protection obligation if: (a) The nationality is relieved of this would seriously endanger exercise of diplomatic obligation if: (a) The the overriding interests of protection would seriously exercise of diplomatic the State and/or its endanger the overriding protection would seriously people; interests of the State endanger the overriding and/or its people ; (b) interests of the State (b) Another State Another State exercises and/or its people ; (b) exercises diplomatic diplomatic protection on Another State exercises protection on behalf of the behalf of the injured diplomatic protection on injured person; person; (c) The injured behalf of the injured person does not have the person; (c) The injured (c) The injured person effective and dominant person does not have the does not have the nationality of the State. effective and dominant effective and dominant States are obliged to nationality of the State. nationality of the State. provide in their municipal States are obliged to law for the enforcement of provide in their municipal 3. States are obliged to this right before a law for the enforcement of provide in their municipal competent domestic court this right before a law for the enforcement of or other independent competent domestic court this right before a national authority." Dugard, or other independent J. First report on diplomatic national authority." Special competent domestic court or other independent protection, supra note 13, Rapporteur John Dugard, national authority. par. 74. appointed in 1999, First Report on Diplomatic Source: Protection, par. 74 (UN (p. 404 of Albornoz) Doc A/CN.4/506 (March 7, 2000) and Corr. 1 (June 7, Special Rapporteur on 2000) and Add. 1 (April 20, Diplomatic Protection,

grave breaches to jus cogens norms, if the national so requested and if he/she was not afforded direct access to an international tribunal. The proposed article reads as follows:

Article 4

2000). (p. 26, footnote 62 of Vinuya)

First Rep. on Diplomatic Protection, Intl. Law Commn, UN Doc. A/CN.4/506, at 27, par. 74 (7 March 2000) (by John R. Dugard). 456. The Special Rapporteur recognized that he had introduced article 4 de lege ferenda. As already indicated, the proposal enjoyed the support of certain writers, as well as of some members of the Sixth Committee and of ILA; it even formed part of some constitutions. It was thus an exercise in the progressive development of international law. But the general view was that the issue was not yet ripe for the attention of the Commission and that there was a need for more State practice and, particularly, more opinio juris before it could be considered. Note: p. 131 of the Report does not refer to the topic of diplomatic protection. Rather, the heading of the page reads "Other Decisions and Conclusions of the Commission." Source: Rep. of the Intl. Law Commn, 52nd Sess., 1 May - 9 June and 10 July 18 August 2000, U.N. Doc. A/55/10 at 78-79, par. 456; GAOR, 55th

5.

the proposal was not accepted by the ILC, as "the question was still not ripe for treatment" because "the State practice and their opinio juris still hadnt evolved in such direction."[120] [120] Official Records of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131. (p. 405 of Albornoz)

[62] the proposal was not accepted by the ILC, as "the question was still not ripe for treatment" because "the State practice and their opinio juris still hadnt evolved in such direction." Official Records of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131. (p.26, footnote 62 of Vinuya)

Sess., Supp. 10 (2000). 6. [62] some States have, indeed, incorporated in their municipal law a duty to exercise diplomatic protection in favor of their nationals. (Dugard identifies this "obligation to exist in the Constitutions of Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, [130] Dugard identifies this Russian Federation, Spain, the former Yugoslav "obligation to exist in the Republic of Macedonia, Constitutions of Albania, Turkey, Ukraine, Viet Nam Belarus, Bosnia and and Yugoslavia, albeit with Herzegovina, Bulgaria, Cambodia, China, Croatia, different reaches. J. Estonia, Georgia, Guyana, Dugard, First Report on Hungary, Italy, Kazakhstan, diplomatic protection, supra note 13, par. 80.) Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic (p. 26, footnote 62 of of Korea, Romania, Vinuya) Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet Nam and Yugoslavia, albeit with different reaches. J. Dugard, First Report on diplomatic protection, supra note 13, par. 80. ...some States have, indeed, incorporated in their municipal law a duty to exercise diplomatic protection in favor of their nationals. Various other States have also included such a "duty to exercise diplomatic protection" under their domestic laws,[130 ]but their enforceability is also, to say the least, questionable (in many cases there are not even courts competent to review the decision). (p. 406 of Albornoz) 7. but their enforceability is also, to say the least, questionable (in many cases there are not even courts competent to review the decision). Moreover, their existence in no way implies that international law imposes such an [62] ..., but their enforceability is also, to say the least, questionable (in many cases there are not even courts competent to review the decision). Moreover, their existence in no way implies that international law imposes (2) A State has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so. The internal law of a State may oblige a State to extend diplomatic protection to a 80. Constitutional provisions in a number of States recognize the right of the individual to receive diplomatic protection for injuries suffered abroad. These include: Albania, Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet Nam and Yugoslavia. Source: Special Rapporteur on Diplomatic Protection, First Rep. on Diplomatic Protection, Intl. Law Commn, UN Doc. A/CN.4/506, at 30, par. 80 (7 March 2000) (by John R. Dugard).

obligation,[131] simply suggesting "that certain States consider diplomatic protection for their nationals abroad to be desirable."[132

[131] ILC First Reading Draft Articles on Diplomatic Protection, supra note 2, Commentary to Draft Article 2, par (2). This was (p. 26, footnote 62 of recognized expressly in the Vinuya) Barcelona Traction case, supra note 6. [132] Dugard, J. First report on diplomatic protection, supra note 13, par. 81. (p. 406-407 of Albornoz)

such an obligation, simply suggesting "that certain States consider diplomatic protection for their nationals abroad to be desirable" (ILC First Reading Draft Articles on Diplomatic Protection, supra note 2, Commentary to Draft Article 2, par (2)).

national,[29] but international law imposes no such obligation. The position was clearly stated by the International Court of Justice in the Barcelona Traction case: A proposal that a limited duty of protection be imposed on the State of nationality was rejected by the Commission as going beyond the permissible limits of progressive development of the law.[31] Source: Commentary to the Text of the Draft Articles on Diplomatic Protection Adopted by the Commission on First Reading, Rep. of the Int'l. Law Commn, 56th Sess., 3 May-4 June and 5 July-6 August 2004, U.N. Doc. A/59/10 at 28, par. 60; GAOR, 59th Sess., Supp. 10 (2004).

TABLE E: Comparison of Elizabeth Prochaskas article, Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada,6 and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Elizabeth Prochaska, Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada (2009). Instead, Draft Article 19, entitled Recommended Practice, suggests that

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. International Source Being Analyzed By Prochaska

[62] Official Records of the General Assembly: 55th session, Supplement

Note: The Report of the

states should be encouraged to exercise diplomatic protection especially when significant injury occurred to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. (p. 397 of Prochaska)

No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131. Instead, Draft Article 19, entitled Recommended Practice,' suggests that states should be encouraged to exercise diplomatic protection especially when significant injury occurred to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. (Footnote 62 of Vinuya)

International Law Commission on the Work of its Fifty-Second Session, and the Special Rapporteurs First on Diplomatic Protection, which are the nearest in location and in context to the passage, does not contain a discussion on Draft Article 19. See pp. 72-85 and 27-34 respectively.

TABLE F: Comparison of Larry Nikschs Report, Japanese Militarys Comfort Women, 10 April 2006,7 and the Supreme Courts Decision in Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Larry Niksch, Japanese Militarys Comfort Women, 10 April 2006. 1. The Asian Womens Fund announced three programs for former comfort women who applied for assistance: (1) an atonement fund that paid two million yen (approximately $20,000) to each former comfort woman; (2) medical and welfare support programs for former comfort women, paying 2.5-3 million yen ($25,000- $30,000) for each former comfort woman; and (3) a letter of apology from the Japanese Prime Minister to each

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to each woman. (p. 17, Body of Vinuya) Source Being Used By Niksch

The projects of atonement involved providing former comfort women with 2 million yen per person as atonement money donated by Japanese citizens, delivering a letter of apology from the Japanese Prime Minister, and offering goods and services under medical and welfare support projects financed by the Japanese government. Note: The passage in Vinuya does not contain a footnote. The following source is the nearest citation that may reasonably be taken as within the context of the discussion in Vinuya.

recipient woman.[8] [FN8]. From the Asian Womens Fund website, March 16, 2006. (paragraph 11 of Niksch) 2. ...As of March 2006, the Asian Womens Fund provided 700 million yen (approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380 million yen (approximately $3.8 million) in Indonesia; and 242 million yen (approximately $2.4 million) in the Netherlands. [9] (paragraph 12 of Niksch) ...As of March 2006, the AWF provided 700 million yen (approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380 million yen (approximately $3.8 million) in Indonesia; and 242 million yen (approximately $2.4 million) in the Netherlands. (p. 17, Body of Vinuya)

http://web.archive.org/web/20060 301213211/http://www.awf.or.jp/e nglish/project_atonement.html

In order to fulfill its moral responsibility in all sincerity, the Japanese government decided to disburse about 700 million yen over a five-year period for medical and welfare support projects aiding former comfort women in the Philippines, the Republic of Korea and Taiwan. ... Note: The passage in Vinuya does not contain a footnote. The following source is the nearest citation that may reasonably be taken as within the context of the discussion in Vinuya. http://web.archive.org/web/20060 301213211/http://www.awf.or.jp/e nglish/project_atonement.html

3. On January 15, 1997 the Asian Womens Fund and the Philippine government signed a Memorandum of understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Philippine governments Department of Social Welfare and Development. (paragraph 19 of

On January 15, 1997 the AWF and the Philippine government signed a Memorandum of Understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Department of Social Welfare and Development. (p. 17, Body of Vinuya)

The government of the Philippines and the Asian Womens Fund signed a Memorandum of Understanding on January 15, 1997. The Philippine governments Department of Social Welfare and Development implemented the projects over a period of five years. Note: The passage in Vinuya does not contain a footnote. The following source is the nearest citation that

Niksch)

may reasonably be taken as within the context of the discussion in Vinuya. http://web.archive.org/web/20060 301213211/http://www.awf.or.jp/e nglish/project_atonement.html

TABLE G: Comparison of James Ladinos article, Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121 and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work James Ladino, Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121, 15 Cardozo J.L. & Gender 333 (2009). 1 . In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan ("KCWS"), submitted a petition to the United Nations Human Rights Commission ("UNHRC"), asking for their assistance in investigating crimes committed by Japan against Korean women and pressuring Japan to pay reparations to the women who had filed lawsuits.[96] The UNHRC formally placed the issue on its agenda and appointed Radhika Coomaraswamy as the issues special investigator.[97] Issued in 1996, the UNHRCs report reaffirmed Japans guilt in forcing Korean women to act as sex slaves for the imperial army.[98] [96] Soh, supra note 7 [Chunghee Sarah Soh, The Korean "Comfort Women": Movement for Redress, 36 Asian Survey 1226,], at 1234-

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. Source Being Analyzed and/or Used by Ladino

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed by Japan against Korean women and seeking reparations for former comfort women.[29] The UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women to act as sex slaves for the imperial army, and made the followingrecommendations:

...In her report to the U.N. Human Rights Commission, Radhika Coomaraswamy, the U.N. special investigator into violence against women, concluded that Japan must admit its legal responsibility.... ...

...Lee Hyo-chae, as a co-chair of the KCWS submitted a petition to the U.N. Human Rights Commission, dated March 4, 1992, requesting that the Commission investigate Japanese atrocities committed against Korean women during World War Two, and help pressure the Japanese government to pay reparations to individual women who have filed suit. The UNHRC responded by placing the issue [29] Soh, The Comfort Women on the official agenda for its Project, San Francisco State August 1992 meeting in University (1997-2001), Geneva. http://online.sfsu.edu/~soh/co

35. [97] Id. at 1226. [98] Id. (p. 344 of Ladino) 2 . The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of Asian women, human rights organizations, and supported by an international coalition of non-governmental organizations ("NGOs").[101] First proposed in 1998, the WIWCT convened in Tokyo in 2000 to discuss the issue of comfort women.[102] Specifically, the WIWCT aimed to "adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against women."

mf ortwomen.html, at 1234-35. Source: (p. 9-10, Body of Vinuya) Chunghee Sarah Soh, The Korean "Comfort Women": Movement for Redress, 36 Asian Survey 1226, 1234-35 (1996). From December 8 to 12, 2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was established to consider the criminal liability of leading highranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s. ... The tribunal arose out of the work of various women's nongovernmental organizations (NGOs) across Asia. Source: Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335 (2001).

The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of Asian women and human rights organizations, supported by an international coalition of non-governmental organizations.[31] First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against women." [31] Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335 (2001).

[101] Christine M. Chinkin,Womens International Tribunal on Japanese Sexual (p. 12, Body of Vinuya) Slavery, 95 Am. J. Intl. L. 335 (2001) [102] Violence Against Women in War-Network Japan, What is the Womens Tribunal? http.//www1.jca.apc.org/vawwnet japan/English/womenstribunal 200 0/whatstribunal.html (last visited Oct. 16, 2008). (p. 345 of Ladino) 3 . A large amount of evidence was presented to the tribunal for examination. Sixty-four

[32] A large amount of Prosecution teams from ten evidence was presented to the countries presented tribunal for examination. Sixty- indictments.[6] North and

former comfort women from Korea and other surrounding territories in the Asia-Pacific region testified before the court.[104] Testimony was also presented by historical scholars, international law scholars, and two former Japanese soldiers.[105] Additional evidence was submitted by the prosecution teams of ten different countries, including: North and South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands.[106]

four former comfort women from Korea and other surrounding territories in the Asia-Pacific region testified before the court. Testimony was also presented by historical scholars, international law scholars, and two former Japanese soldiers. Additional evidence was submitted by the prosecution teams of ten different countries, including: North and South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Id. [Chinkin] at 336.

South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Two lead prosecutors (Patricia Viseur Sellers[7] and Ustinia Dolgopol[8]) joined the separate-country prosecutors and presented a common indictment. Source: Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335, 336 (2001).

[104] Id. [Violence Against Women in War-Network (p. 12, footnote 32 of Vinuya) Japan, What is the Women's Tribunal?, http://www1.jca.apc.org/vawwnet japan/english/womenstribunal 200 0/whatstribunal.html (last visited Oct. 16, 2008).] [105] Id. [106] Chinkin, supra note 101, at 336. (p. 345 of Ladino) After examining the evidence for more than a year, the tribunal issued its final verdict on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of women.[107] Although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was organized After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of women.[32] It bears stressing, however, that although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was organized by private citizens. The preliminary judgment indicated that the judges had found Emperor Hirohito guilty of the charges on the basis of command responsibility, that he knew or should have known of the offenses. The judges also indicated that they had determined Japan to be responsible under international law applicable at the time of the events for violation of its treaty obligations and principles of customary international law relating to slavery, trafficking, forced labor, and rape, amounting to

by private citizens. [107] Violence Against Women in War-Network Japan, supra note 102. (p. 345 of Ladino)

[32] Id. [Chinkin] at 336. (p. 12, Body of Vinuya)

crimes against humanity. What was the value of this exercise? Lacking legal authority, was the tribunal no more than a mock trial of little concern to serious international lawyers? Source: Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335 (2001).

4 .

On January 31, 2007, United States Representative Michael Honda of California, along with six co-sponsor representatives, introduced House Resolution 121. The resolution called for Japanese action in light of the ongoing struggle for closure by former comfort women. The House of Representatives formally passed the resolution on July 30, 2007.[110] The resolution also makes four distinct demands: [110] Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II Exploitation of "Comfort Women" (Jan. 31, 2007), available at http://www.house.gov/list/ press/ca15_honda/ COMFORTWOMEN.html. (p. 346 of Ladino)

On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor representatives, introduced House Resolution 121 which called for Japanese action in light of the ongoing struggle for closure by former comfort women. The Resolution was formally passed on July 30, 2007,[33] and made four distinct demands: [33] Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II Exploitation of "Comfort Women" (January 31, 2007). (p. 12, Body of Vinuya)

Today, Representative Michael M. Honda (CA 15) introduced a bipartisan resolution before the U.S. House of Representatives calling on the government of Japan to formally and unambiguously apologize for and acknowledge the tragedy that comfort women endured at the hands of its Imperial Army during World War II. The resolution is cosponsored by: Representatives Edward R. Royce (CA 40), Christopher H. Smith (NJ - 4), Diane E. Watson (CA - 33), David Wu ()R - 1), Phil Hare (IL - 17), and Delegate Madaleine Bordallo (GU). Source: Press Release of Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II Exploitation of "Comfort Women," 31 Jan. 2007, available at http://www.house.gov/list/ press/ca15_honda/

COMFORTWOMEN.html 5 . The resolution also makes four distinct demands: [I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the "comfort women."[111 111] H.R. Res. 121, 110th Cong. (2007) (enacted). (p. 346 of Ladino) The Resolution was formally passed on July 30, 2007,[33] and made four distinct demands: [I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the "comfort women."[34 34] H.R. Res. 121, 110th Cong. (2007) (enacted). (p. 12, Body of Vinuya) Resolved, That it is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) should have this official apology given as a public statement presented by the Prime Minister of Japan in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Armed Forces never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the "comfort women". Source cited: H.R. Res. 121, 110th Cong. (2007) (enacted), available at http://www.gpo.gov/fdsys/pkg/ BILLS110hres121ih/pdf/BILLS110hres121ih.pdf (U.S.)

6 .

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to House Resolution 121.[130] Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3) unabridged education of the past.[132] The resolution also stresses the urgency with which Japan should act on these issues, stating: "the right of individuals to claim reparations against the government should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized, taking into account the age of the survivors."[133]

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to House Resolution 121.[35] Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3) unabridged education of the past. The resolution also stressed the urgency with which Japan should act on these issues, stating: "the right of individuals to claim reparations against the government should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized, taking into account the age of the survivors."

A resolution on the 'comfort women' (sex slaves) used by Japan in World War II calls for a change of official attitudes in modern-day Japan, a right for survivors or families to apply for compensation and measures to educate people about these historical events. Call for formal acknowledgment of responsibility by government Legal obstacles to compensation must be removed Education about the past Source cited: European Parliament, Human rights: Chad, Women's Rights in Saudi Arabia, Japan's Wartime Sex Slaves, (17 Dec. 2007) available at http://www.europarl.europa.eu/ sides/getDoc.do?language= EN&type=IMPRESS&reference= 20071210BRI14639&secondR ef= ITEM-008-EN

[35] European Parliament, [130] European Parliament, Human rights: Chad, Women's Human rights: Chad, Women's Rights in Saudi Arabia, Rights in Saudi Arabia, Japan's Wartime Sex Slaves, Japan's Wartime Sex Slaves, Dec. 17, 2007, Dec. 17, 2007, http://www.europarl.europa.eu http://www.europarl.europa.eu / / sides/getDoc.do?language=E sides/getDoc.do?language=E N& type=IMN& type=IMPRESS&reference= PRESS&reference= 20071210BRI14639&secondR 20071210BRI14639&secondR ef= ITEM-008-EN. ef= ITEM-008-EN. (p. 13, Body of Vinuya) [132] Id. [133] Id. (p. 360 of Ladino) 7 . The Canadian and Dutch parliaments have each The Canadian and Dutch parliaments have each

Note:

followed suit in drafting resolutions against Japan. Canada's resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of thousands of women into sexual slavery, and to restore references in Japanese textbooks to its war crimes.[134] The Dutch parliament's resolution simply calls for the Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.[135] [134] The Comfort Women--A History of Trauma,

followed suit in drafting resolutions against Japan. Canada's resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of thousands of women into sexual slavery, and to restore references in Japanese textbooks to its war crimes.[36] The Dutch parliament's resolution calls for the Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono. [36] The Comfort Women--A History of Trauma,

On the issue of comfort women, the website only refers to the attitude and reaction of the following governments: Taiwan, South Korea, North Korea, Philippines, China, Indonesia, Malaysia, and Japan. Source cited: http://taiwan.yam.org.tw/wome nwe b/conf_women/index_e.html

http://taiwan.yam.org.tw/ http:// taiwan.yam.org.tw/ womenweb/conf_women/ womenweb/conf_women/ index_e.html. (last visited Mar. index_e.html. 26, 2009). (p. 13, Body of Vinuya) [134] Id. (p. 360 of Ladino) Violations of Rules Against Plagiarism in the Vinuya Decision Below are violations of existing rules against plagiarism as can be found in the Vinuya Decision, in addition to violations earlier enumerated in my Dissent: A.1 A passage from the article of Criddle and Fox-Decent was copied verbatim, including the footnote. There are no quotation marks to indicate that this important conclusion from the article and the example to illustrate it, which were discussed in the corresponding footnote, are not the ponentes own. No attribution to Criddle and Fox-Decent was made. A.2 Similar to A.1, Criddle and Fox-Decents conclusion was copied word for word, including the corresponding footnote, which was enclosed by parentheses and placed immediately after the sentence to which it corresponds. No attribution to Criddle and Fox-Decent was made. A.3 Similar to A.1 and A.2, this sentence from the article was copied verbatim, including its corresponding footnote. No attribution to Criddle and Fox-Decent was made. B.1 Save for a few words which were intentionally rearranged, the entire paragraph was lifted verbatim from Elliss discussion on rape as an international crime. Two citations of cases from Ellis were omitted. No attribution to Ellis was made.

B.2 Elliss identification of Article 3 of the 1949 Geneva Conventions as a general authority on rape as a violation of the laws of war, and his summation thereof, was lifted word for word. His footnote was also copied, including the intratext reference "supra note 23," enclosed in parentheses and inserted after the corresponding text. No attribution to Ellis was made. B.3 Elliss summary and analysis of Article 27 of the Fourth Geneva Convention was lifted word for word. No attribution to Ellis was made. B.4 Elliss conclusion regarding Protocol I of the Geneva Convention was appropriated, without any attribution to Ellis. Elliss footnote was again copied. No attribution to Ellis was made. C.1 McCorquodales analysis of individual claims within the international legal system was copied word for word and inserted after the introductory clause "In the international sphere" in Vinuya. The footnote McCorquodale appended to his analysis of individual claims (i.e. the sentences copied in C.1.) is not present. No attribution to McCorquodale was made. C.2 This item refers to the footnote attached to the copied sentence in C.1. It is composed of two instances of copying stitched together: two sentences of McCorquodale, taken from the paragraph directly preceding his analysis of individual claims in the international legal system, and the footnote corresponding to the PCIJ Decision quoted in the second of the said two sentences. No attribution to McCorquodale was made. C.3 The conclusion Okowa reached was copied in footnote 63 of Vinuya, but Okowas reference to the cases she cited in her analysis was omitted and the context of her conclusion (on the current standing of general international law with regard an enforceable legal duty of diplomatic protection) was removed. No attribution to Okowa was made. C.4 McCorquodales discussion of the case Abassi v. Secretary of State was copied without any citation of his essay or the international law book in which it was published. No attribution to McCorquodale was made. C.5 The order of sentences were reversed, but the conclusion in Okowas essay was copied, and as well as her discussion of the case Kaunda v. President of the Republic of South Africa. No attribution to Okowa was made. D.1 Albornozs summary and analysis was copied word for word in the body of the Decision on page 24. No indication was given that this was not the ponentes original analysis, and no attribution to Albornoz was made. D.2 The elucidation of Albornoz regarding what she calls the traditional view on the discretion of states in the exercise of diplomatic protection was copied into footnote 57 of the Vinuya Decision. Albornozs citation of Borchard was used as a reference in the same footnote, but Albornoz was bypassed completely. D.3 Albornozs summation of the ILCs First Reading Draft Articles on diplomatic protection was copied with some modifications: the second half of the first sentence from Albornoz was removed and instead replaced with "fully support this traditional view" in an apparent effort to link this summary to the previous instance of copying (table entry D.2.). Minor edits were made to Albornozs summary to streamline the flow of the second copied sentence. No attribution to Albornoz was made.

D.4 Albornozs summation of Dugards proposal was lifted word for word and used in footnote 62 ofVinuya. The footnote Albornoz attached to this summation, a quotation of Albornozs cited source, was inserted directly after the copied summation. No attribution to Albornoz was made. D.5 The conclusion reached by Albornoz regarding the rejection of Dugards proposal was copied exactly, even with regard to the portions of the Official Records of the General Assembly that Albornoz quoted. No attribution to Albornoz was made. D.6 The major part of a sentence from Albornoz was copied and attached to the transition phrase "In addition" to continue the pastiche of copied sentences in footnote 62 of Vinuya. The footnote of Albornoz regarding Dugard was inserted immediately after and enclosed in parentheses. Note that the inline text citation, "supra note 13, par. 80" in Albornozs footnote 130 was copied as well. No attribution to Albornoz was made. D.7 Continuing from the instance of copying in D.6., the second half of a sentence in Albornoz was used as what is apparently an incomplete sentence (beginning with: ", but their enforceability...") in footnote 62 of Vinuya. The next sentence was also copied, and its corresponding footnote enclosed in parentheses and inserted immediately after it. While the Decision cites one of the same sources Albornoz cited (ILC First Reading Draft Articles on Diplomatic Protection), no attribution is made to Albornoz for the excerpt, or to Dugard, whom Albornoz cited for the quoted portion. E.1 An excerpt from the third paragraph of Prochaska is reproduced verbatim in footnote 62 of page 26 of the Decision. There were no quotation marks or attribution to Prochaska to indicate that such was not theponentes analysis, but Prochaskas. F.1 A sentence from paragraph 11 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made. F.2 An excerpt from paragraph 12 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made. F.3 An excerpt from paragraph 19 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made. G.1 An excerpt from page 344 of Ladino was reproduced without quotation marks in pages 9 to 10 of the body of the Decision. The phrase "women who had filed" was changed to "comfort women." G.2 An excerpt from page 345 of Ladino was reproduced without quotation marks in page 12 of the body of the Decision. The two sentences in the footnote from Ladino were combined, but the words were reproduced verbatim. G.3 An excerpt from page 345 of Ladino is reproduced verbatim in page 12 of the body of the Decision. Part of Ladinos discussion was reproduced verbatim in footnote 32 of the Vinuya Decision, with no attribution to Ladino. G.4 The first part of the paragraph in page 345 of Ladino was reproduced verbatim. However, the latter part of Ladinos explanation, (stating that while the judgment against Japan was not legally binding, it still "cast Japan in the shadow of moral reproach") was omitted. There was no attribution to Ladino.

G.5 An excerpt from page 346 of Ladino, along with two footnotes, was reproduced verbatim in page 12 of the Decision. No attribution to Ladino was made. G.6 Ladinos discussion in page 350 and the corresponding footnotes were reproduced verbatim in page 13 of the Decision. No attribution to Ladino was made. B. The Process of the Commission of Plagiarism in the Vinuya Decision A careful reading of the Vinuya Decision reveals that it is unlike other decisions issued by this Court, except perhaps for the case of Ang Ladlad LGBT Party v. Commission on Elections, which Justice del Castillo likewise penned. The footnotes in Vinuya read like those found in theses of international law scholars, where one discursive footnote can be so extensive as to occupy three-fourths of a page (see footnotes 62, 63, and 65). An honest researcher for a Philippine judge, after painstakingly developing a perspective on an international legal issue by reading the works of scholars who have documented the debate, would deliberately refer to the works of such scholars, and not transform their works into his own. Justice del Castillos researcher not only contends that accidental deletion is the sole reason for the missing footnotes, but also that their office subsequently went over the Decision "sentence by sentence" and concluded that no plagiarism was committed at all. However, the rearrangement of the sentences lifted from the original work, the mimicking of the original works use of footnotes, the subsequent back and forth copying and pasting of such footnotes these acts belie mere negligence. The following analysis shows objective plagiarism viewed through three lenses:extent, deliberateness, and effect. The massiveness and frequency with which instances of unattributed copying occur in Vinuya highlight the extent of the plagiarism. Clever transpositions of excerpts to make them flow according to the researchers transition phrases are clearly devices of a practiced plagiarist, which betray the deliberateness of every single act. The plagiarism inVinuya will also be scrutinized on the basis of its effect, especially in light of its commission in a judicial decision. The rationale for such a thematic presentation will then be discussed in a succeeding section, which deals with evaluating plagiarism. 1. The extent of unattributed copying belies inadvertence. In the tables outlined above, as well as in the analysis in my Dissent dated 12 October 2010, it can be seen that the researcher of Justice del Castillo failed to make the necessary attribution twentythree (23) times in the body of theVinuya Decision; the works whose texts were used without attribution include several copyrighted journal articles, essays from a book on international law, and one congressional report of the United States. There were thirty-six (36) missing citations in the footnotes, including twelve (12) citations missing from footnote 65 alone. This adds up to a total of fifty-nine (59) missing citations. The sheer number of missing citations is related to the length and volume of the footnotes and discussions, some of which Justice del Castillo himself admitted to be unnecessary. The quantity of text copied without attribution is most concentrated in pages 12 to 13, which deal with actions taken in the pursuit of justice for the comfort women, and in pages 24 to 32, which appear under the section heading The Philippines is not under any international obligation to espouse petitioners claims. In the latter section, the discussion and analysis appearing on pages 24 (insofar as the section after the start of the international law discussion is concerned), 28 and 31 in particular would be significantly impaired were the unattributed portions of texts to be removed: there would be no words left in the instance of page 24; the entirety of the discursive footnote on

page 28 would be reduced to one sentence and its attendant citations; three sentence fragments, and no footnotes, would remain on page 31. In pages 24 to 32, out of a total of thirteen (13) discursive footnotes, eleven (11) of these are comprised wholly of material copied without attribution, and yet another one footnote 69 contains text that was copied without attribution as well. The writer of the Vinuya Decision displayed meticulous attention to detail in reproducing the citations to international judicial decisions, publications, and other such references in these footnotes citations that originally appeared in the copied works but completely bypassed the copied works themselves, thereby appropriating the analysis, processing, and synthesizing of information, as well as the words, of the writers whose works were copied. On its face, the sheer volume of portions copied, added to the frequency with which citations to the plagiarized works were omitted while care was taken to retain citations to the sources cited by the plagiarized works, reveal that the plagiarism committed cannot logically be anything other than deliberate. 2. Systematic commission of plagiarism demonstrates deliberateness. In pages twelve (12) to thirteen (13) of Vinuya, sentences from the body of Ladinos article were interspersed with Ladinos footnotes, without a single attribution to Ladino (please refer to Table G). Sentences from Ladinos article were copied into footnote 32 of Vinuya, while the immediately succeeding sentence was again copied to form part of the body of Vinuya. The cutting of sentences from Ladinos work and the patching together of these pieces to form a mishmash of sentences negate the defense of inadvertence, and give the reader the impression that the freshly crafted argument was an original creation. The work of Criddle and Fox-Decent was subjected to a similar process. This process is dissected in the following list of instances ordered according to how they appear in pages 31 to 32 of the body of the Decision: a. Detailed analysis of patchwork plagiarism in the body of Vinuya, pp. 31-32: 1. Page 31, par. 2: Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.[72] [72] Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of international jus cogensencountered skepticism within the legal academy. These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that "about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law"). This sentence, together with footnote 72 in Vinuya, is part of one continuous discussion by Criddle and Fox Decent, and copied verbatim. The two authors rightfully attributed the historical data to Lauri Hannikainen, but the conclusion on established jus cogens principles is wholly their own.

2. Page 31, par. 2: The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that certain international norms had attained the status of jus cogens[74] The first sentence and its subsequent clause are lifted verbatim from the article. Footnotes 73 and 74 are Criddle and Fox-Decents analysis of how international "minimum requirements" form evidence of jus cogens. The paragraph was broken down, then rearranged in Vinuya. 3. Page 31, par. 2: Though there was a consensus that certain international norms had attained the status of jus cogens,[74] the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms. Aside from copying the first clause in the sentence, which forms part of the premise, the conclusion of Criddle and Fox-Decent was likewise copied. 4. Page 32, par. 1: After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens."[75] After copying the sentence and footnote in No. 4 above, three sentences were omitted from the article, then this sentence in No. 5 was also copied. In the body of the work, the two sentences immediately following this statement pertaining to the conclusion of the International Law Commission were again omitted. 5. Page 32, par. 1: In a commentary accompanying the draft convention, the ILC indicated that "the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals."[76] This sentence was conjoined with the sentence above; footnotes 75 and 76 were also copied. The net effect is that this paragraph was spliced together, sentence by sentence, from Criddle and FoxDecents work. A similar method of splicing was used extensively in the footnotes of the Decision as well. It is most evident in footnote 65, the longest discursive footnote in Vinuya. This portion copied heavily from the article of Dr. Mark Ellis entitled "Breaking the Silence: Rape as an International Crime." To illustrate, the first paragraph of footnote 65 is broken down and scrutinized by sentence, following the original sequence in the Decision. b. Detailed analysis of patchwork plagiarism in paragraph 1, footnote 65 of Vinuya: 1. Sentences 1 and 2: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. These are the opening sentences from the second paragraph on page 227 of the journal article. Ellis cites the treaty between the United States and Prussia as his own example, in a footnote. In Vinuya, this particular citation is copied, enclosed in parentheses, and became the sixth and seventh sentences of footnote 65. 2. Sentence 3: But modern-day sensitivity to the crime of rape did not emerge until after World War II.

This is the sixth sentence in the same paragraph in Ellis article as discussed above. It is transposed verbatim, and became the second sentence in Vinuya. 3. Sentences 4 and 5: In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. The clauses "After World War II, when the Allies established the Nuremberg Charter" was deleted. This particular sentence is Ellis own conclusion regarding the "Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis," but there was no attribution to Ellis, only a citation of the agreement, along with Elliss other footnotes, at the end of the paragraph. 4. Sentences 6 and 7: (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children "shall not be molested in their persons." The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l Agreements Of The U.S. 78, 85. This is the citation originally corresponding to the first and second sentences on page 227 of Elliss article. This portion was copied in Vinuya, this time placed at the end of the paragraph and enclosed in parentheses. 5. Sentence 8: The 1863 Lieber Instructions classified rape as a crime of "troop discipline." Originally the second sentence in Elliss paragraph, this was transposed to the eighth. Its corresponding footnote in Ellis was lifted verbatim, enclosed in parentheses, then inserted into the paragraph in Vinuya, as the ninth sentence: "(Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Intl. L. 219, 224)." 6. Sentence 10: It specified rape as a capital crime punishable by the death penalty. Originally the fourth sentence in Ellis article, this was transposed, and its corresponding footnote was copied: "(Id. at 236)." 7. Sentence 11: The 1907 Hague Convention protected women by requiring the protection of their "honour." The sentence was copied, and its corresponding footnote was lifted verbatim, enclosed in parentheses, and placed at the end of the paragraph. Elliss attribution to the Yale Law website where the pertinent law may be found was omitted, leaving only the following: ("Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected." Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, "Affirmation of the Principles of International Law recognized by the Charter of the Nrnberg Tribunal"; General Assembly document A/64/Add.1 of 1946". 8. Sentence 13: See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

This is originally Elliss citation, used to support his observation that there was no express mention of "rape" in the Nuremberg Charter. It was enclosed in parentheses and relegated to the end of the paragraph in Vinuya. 9. Sentence 14: Article 6(c) of the Charter established crimes against humanity as the following: CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. This was lifted from page 227 of Elliss work. Pages 227 to 228 of the said work, pertaining to the discussion on rape were substantially copied. Insertions were made for Elliss own footnotes. The conscious thought required for the act of cutting and pasting the original authors footnotes onto the precise spot where the copied sentences ended contradicts the account of inadvertence. There is consistent correspondence between the sentences copied to the footnote copied. In the example above, the act of encapsulating Ellis footnotes in parentheses show further that in Vinuya there was a conscious appropriation of Elliss sources in a usage that is substantially similar to what appears in his article. This allegedly inadvertent copying of Elliss footnotes occurred no less than twelve (12) times in footnote 65 alone. 3. Research steps purportedly followed in the drafting of Vinuya cast doubt on inadvertence. The following is a recreation of the step-by-step research procedure followed by many offices in the research and crafting of judicial decisions. It is based on the account given by the researcher of the Vinuya Decision of her own experiences while working on the case. This detailed breakdown is made in order to show the exact number of actions which must be made in order to input a citation, if indeed it was intentionally inputted. A recreation of the steps necessary to delete a citation is also made to show that the aggregate number of actions needed to erase each and every citation missing in Vinuya is so high that the underlying cause could not have been mere inadvertence. Step 1: a. First, using an internet-based search engine, which could be a free search service like Googles, or a paid service like Westlaws, the researcher would have typed in key phrases like "erga omnes," "sexual slavery," or other such terms relevant to the subject matter. b. For some researchers, this is just a preliminary step, as they would then pick and choose which articles to read and which to discard. The researcher in Vinuya, however, claimed that she purposely read all the materials available through this search.8 Step 2: a. The search engine would have generated a list of documents containing the search terms and topics relevant to the subject matter. The search engine would also have linked the items on this list to the corresponding online locations where these documents may be accessed.

b. In Vinuya, the researcher used the Westlaw legal research service (which is made available to offices of all the Justices), and perused the generated list.9 A possible item on this list would be the article entitled "Breaking the Silence: Rape as an International Crime," by one of the complaining authors, Dr. Mark Ellis. Step 3: The researcher would read articles from the generated list and identify the portions she planned to incorporate into the draft. For this example, she would have scrolled through the work of Mark Ellis and found the selection she wanted. The level of scrutiny invested into each of the chosen articles would vary; some researchers make cursory readings and incorporate as many portions from different works and authors as they can. Step 4: a. The researcher can either save the articles in their entirety, or save the selections in one document. The researcher in Vinuya claimed that she did the latter and used the Microsoft Word program for this purpose. b. If the researcher chose to save only pertinent selections, then ideally the attributions would have to be made at his point. Now, this step is critical. I know of no software in the world, especially not Microsoft Word, that will generate the citation to the work of Ellis on its own, without the appropriate action of the user. An honest researcher would immediately copy and paste the citation references of Ellis into the copied portions, or type a reference or label in, even if it were only a short form placeholder of the proper citation. If she did neither, she may be sloppy, incompetent or downright dishonest. During the deliberations of the Ethics Committee, the researcher explained this crucial step: "So I would cut and paste relevant portions, at least portions which I find relevant into what turns out to be a large manuscript which I can then whittle and edit and edit further."10 Adhering to this account, there would be an additional step in the process: Step 5 If an existing draft or "manuscript" has already been created, the next step would be to incorporate the selections from the articles into the draft. This is a second opportunity to ensure that the proper attributions are made. If the researcher is diligent, she would already have tried to follow the correct form as prescribed by the Manual of Judicial Writing.11 If a "manuscript" or outline has already been formulated, then incorporating the selections would require her to be conscious that these ideas and arguments are not her own. The process ideally alerts any researcher that extraneous sources are being added. It allows her to make the following considerations: Does this portion sufficiently discuss the historical context of a particular conclusion? Do I need this literature as support for my arguments? Am I including it to support my arguments, or merely to mimic the authors? Corollarily, the researcher would initially assess if such argument made by the author is adequately supported as well. She would check the authors footnotes. In Vinuya, the copying of the footnotes was so extensive, such that it practically used the uncited works as blueprint for the Decisions footnotes.

4. The frequency of instances of missing citations and actions required for deletion betray deliberateness. To purposefully input citations would require many key strokes and movements of the computers "mouse." If the attributions had indeed been made already, then the deletions of such attributions would not simply happen without a specific sequence of key strokes and mouse movements. The researcher testified that the necessary attributions were made in the earlier drafts, but that in the process of cutting and pasting the various paragraphs, they were accidentally dropped. She makes it sound as if something like a long reference citation can just easily fall by the wayside. Not so. The reference required under the Manual of Judicial Writing for the work of Ellis reads like this: "Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int'l L. 225 (2006-2007)." The researcher in Vinuya explained that footnotes were deleted along with headings of certain portions, and with the deletion of the note reference mark in the body of the text, the citations in the documents footers disappeared also. For this scenario to happen with the same frequency as the number of missing citations, the following steps must have been followed: 1. First movement: Using hand and eye coordination, consciously move cursor to the location of target footnote and/or heading, using either the mouse or arrow keys. 2. Second movement: Select the "note reference mark" by highlighting the target footnote number. Note that unlike in normal characters or texts wherein a single press of the "delete" or "backspace" button would suffice, a footnote number must be highlighted before it can be deleted. This means that either the particular footnote and/or heading must have been "double-clicked" or it must have been specifically highlighted by a precise horizontal motion of the cursor while pressing on a mouse button both of which require two movements (either two "clicks", or a "click" and a "swipe"). 3. Third movement: Press "delete" or "backspace" key. Note that in the case wherein the note reference mark was not highlighted by a mouse movement, the "delete" or "backspace" key must have been pressed twice, as pressing it only once will merely highlight the note reference mark without deleting the same. Hence, even accommodating the explanation given by the researcher, at least four movements must have been accomplished to delete one footnote or reference. Multiply this with the number of references that were "dropped" or "missing," and you have a situation wherein the researcher accomplished no less than two hundred thirty-six (236) deliberate steps to be able to drop the fiftynine (59) citations that are missing in Vinuya. If by some chance the cursor happened to be at the precise location of the citations, and the citations were subsequently deleted by an accidental click of the mouse, this would still have necessitated a total of one hundred seventy seven (177) clicks. It is understandable if a researcher accidentally deleted one, two or even five footnotes. That a total of 59 footnotes were erased by mere accident is inconceivable. To make a conservative estimate, we can deduct the number of times that a footnote number in the body of the Decision could simply have been deleted inadvertently. Our analysis indicates that this could have happened a third of the time, or an estimate of twenty times, when short footnotes containing "supra" or "id." could have been easily forgotten or omitted. This would still have yielded sixty deliberate steps or movements, and would alert the researcher either that: 1) too much of the body comprises ideas which are not his own, or 2) too many of the sources in his "main manuscript"

were getting lost. Subsequently, if more than half of the attributions in the International Law discussion went missing, the simple recourse would have been either to review his or her first draft, or simply delete his lengthy discursive footnotes precisely because he cannot remember which articles he might have lifted them from. On Microsoft Word features that alert the user to discrepancies in footnote deletions The researcher took pains to deliberately cut and paste the original sources of the author, thereby making it appear that she was the one who collated and processed this material. What she should have done was simply to cite the author from whom she took the analysis and summarization of the said sources in the first place. The latter would have been the simple, straightforward, not to mention honest path. Instead, the effect is that the Vinuya Decision also appropriated the authors analysis. Actually, it would have been easier to cite the authors copied work considering the availability of short citation forms commonly used as reference tools in legal articles such as "supra" or "id." Microsoft Word may not have an automatic alarm each time a footnote or citation is deleted, but it does contain built-in features to help raise "red flags" to signal that a particular passage was copied, or is attached to a particular citation if indeed such citation exists. For example, the researcher in Vinuya, in describing her own process of drafting the Decision, stated that portions containing footnotes from the first Vinuya draft were lifted and transformed into the contents of a separate footnote. In short, during revisions of the draft, substantial footnoted portions which used to be in the body were relegated to footnotes. This does not result, however, in the automatic erasure of the original footnotes within the new footnote. A simple recreation of this process reveals that this "footnote within a footnote" retains a number symbol in superscript, albeit one altered due to the redundancy in the functionality of "footnotes within footnotes." Any reasonably prudent researcher would thus be alerted to the fact that something was amiss with the citations in that particular selection because the footnote would have abnormal numeric superscripts. This glaring abnormality in itself is a warning. Another notable feature is that when a cursor, as seen on the screen in an open document, is placed over a footnote reference mark, Microsoft Word automatically supplies that footnotes citation in a popup text box. The popup box hovers over the numerical superscript, unmistakably indicating the source.12 In addition, no single action can cause a footnote to be deleted; once the cursor is beside it, either the "delete" or "backspace" key must be pressed twice, or it must be deliberately highlighted and then erased with a stroke of either the "delete" or the "backspace" key. This functionality of footnote deletion in Microsoft Word thus decreases the likelihood of footnotes being deleted without the knowledge or intention of the researcher. As to the claim of the researcher that the footnotes in the headings were accidentally deleted, there was a failure on the part of the Ethics Committee to thoroughly investigate the matter when they relied on a presentation of what, according to the researcher, happened during her research for and drafting of the Vinuya Decision. Instead of asking her to re-create the various situations of "inadvertent dropping," the Ethics Committee satisfied itself with a "before" and "after" Microsoft PowerPoint presentation which could not, by any stretch of the imagination, have recreated the whole process of researching and drafting that happened in Vinuya unless every step were to be frozen through screenshots using the "Print Screen" command in tandem with a common image management program. To simply present the "before" and "after" scenario through PowerPoint has no bearing on the reality of what happened. Had the Ethics Committee required that the presentation made before them be through recreation of the drafting process using Microsoft Word alone, without "priming the audience" through a "before" and "after" PowerPoint presentation, they would have seen the footnotes themselves behaving strangely, alerting the researcher that something was seriously wrong. The Committee would then have found incredible the claim that the accidental

deletion of a footnote mark attached to a heading and the subsequent transposition of text under that heading to another footnote could have occurred without the researcher being reminded that the text itself came from another source. Proof of deliberate action is found in the Vinuya Decision itself the care with which the researcher included citations of the sources to which the authors of the copied works referred, while conveniently neglecting attribution to the copied works themselves. It is therefore impossible to conclude that such gross plagiarism, consisting of failure to attribute to nine (9) copyrighted works, could have been the result of anything other than failure to observe the requirements of the standard of conduct demanded of a legal researcher. There is also no basis to conclude that there was no failure on the part of Justice del Castillo to meet the standard of supervision over his law clerk required of incumbent judges. III. On Evaluating Plagiarism A. Posners Standards for Evaluating the Characterization of Incidents of Plagiarism To be generous to my colleagues in this part of my analysis, I have referred to one of the scholars who hold the most liberal views on plagiarism, Judge Richard A. Posner. The three guideposts by which I structured my technical analysis of the instances of plagiarism in the Vinuya Decision come from his breakdown of certain key issues in his work, The Little Book of Plagiarism. In his "cooks tour" of the key issues surrounding plagiarism, wherein he is more liberal than most academics in speaking of the sanctions the act may merit he is against the criminalization of plagiarism, for instance, and believes it an act more suited to informal sanctions13 Judge Posner characterizes plagiarism thus: Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him and the claim causes the copier's audience to behave otherwise than it would if it knew the truth. This change in behavior, as when it takes the form of readers' buying the copier's book under the misapprehension that it is original, can harm both the person who is copied and the competitors of the copier. But there can be plagiarism without publication, as in the case of student plagiarism. The fraud is directed in the first instance at the teacher (assuming that the student bought rather than stole the paper that he copied). But its principal victims are the plagiarist's student competitors, who are analogous to authors who compete with a plagiarist.14 Posner then goes on to neatly sum up, in the form of three "keys," major considerations that need to be taken into account when evaluating an occurrence of plagiarism. His books last paragraph reads: In the course of my cooks tour of the principal issues that have to be addressed in order to form a thoughtful response to plagiarism in modern America, I have challenged its definition as "literary theft" and in its place emphasized reliance, detectability, and the extent of the market for expressive works as keys to defining plagiarism and calibrating the different types of plagiarism by their gravity. I have emphasized the variety of plagiarisms, argued for the adequacy of the existing, informal sanctions, pointed out that the "fair use" doctrine of copyright law should not protect a plagiarist, noted the analogy between plagiarism and trademark infringement (a clue to the entwinement of the modern concept of plagiarism with market values)and warned would-be plagiarists that the continuing advance of digitization may soon trip them up. (Emphasis supplied.) It is in this spirit that the three questions of extent, an analogue of reliance, as extensive plagiarism correlates to the reliance of the text on the copied work; deliberateness; and effect, an analogue of what Posner called "extent of the market for expressive works", used here in the context of the effect of plagiarism in the Vinuya Decision were put to the text being scrutinized. The first two questions

have been discussed in preceding sections. To examine the effect, one must first make the distinction between the effect of copying a copyrighted work without attribution, and between the effect of copying without attribution a work in the public domain. Using these three guideposts, we can them come to a conclusion whether the plagiarism is relatively harmless and light or something severe and harmful. In the case of the Vinuya Decision, we have come to conclude that the plagiarism is severe; and because judicial decisions are valuable to the Philippine legal system, that the plagiarism harms this institution as well. 1. The distinction between the effect of appropriating copyrighted works and works in the public domain The infringement of copyright necessitates a framework for characterizing the expression of ideas as property. It thus turns on a question of whether there exists resultant harm in a form which is economically quantifiable. Plagiarism, on the other hand, covers a much wider range of acts. In defining copyright infringement, Laurie Stearns points out how it is an offense independent from plagiarism, so that an action for violation of copyright which may take on either a criminal and a civil aspect, or even both does not sufficiently remedy the broader injury inherent in plagiarism. Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily plagiarismIn some ways the concept of plagiarism is broader than infringement, in that it can include the copying of ideas, or of expression not protected by copyright, that would not constitute infringement, and it can include the copying of small amounts of material that copyright law would disregard.15 Plagiarism, with its lack of attribution, severs the connection between the original author's name and the work. A plagiarist, by falsely claiming authorship of someone else's material, directly assaults the author's interest in receiving credit. In contrast, attribution is largely irrelevant to a claim of copyright infringementinfringement can occur even when a work is properly attributed if the copying is not authorizedfor example, a pirated edition of a book produced by someone who does not own the publication rights.16 The recognition of plagiarism as an offense that can stand independently of copyright infringement allows a recognition that acts of plagiarism are subject to reproof irrespective of whether the work is copyrighted or not. In any case, the scenario presented before the Court is an administrative matter and deals with plagiarism, not infringement of copyright. 2. On judicial plagiarism and the sanctions therefor The majority Resolution quotes from the Judicial Opinion Writing Handbook written by Joyce George which I cited in my earlier Dissent thusly: The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook: A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a partys brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear or reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more

importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism. The use of this excerpt to justify the wholesale lifting of others words without attribution as an "implicit right" is a serious misinterpretation of the discussion from which the excerpt was taken. George wrote the above-quoted passage in the context of a nuanced analysis of possible sanctions for judicial plagiarism, not in the context of the existence of plagiarism in judicial opinions. (I had candidly disclosed the existence of this liberal view even in my 12 October 2010 Dissent.) The sections preceding the text from which this passage was taken are, in fact, discussions of the following: ethical issues involving plagiarism in judicial writing, with regard to both the act of copying the work of another and the implications of plagiarism on the act of adjudication; types of judicial plagiarism, the means by which they may be committed, and the venues in and through which they can occur; and recent cases of judicial plagiarism. In no wise does George imply that the judicial function confers upon judges the implicit right to use the writing of others without attribution. Neither does George conflate the possible lack of sanctions for plagiarism with the issue of whether a determination of judicial plagiarism can be made. Rather, George is careful to make the distinction between the issue of whether judicial plagiarism was committed and the issue of whether a sanction can be imposed for an act of judicial plagiarism. In Georges terminology, the latter issue may also be framed as a question of whether judicial plagiarism is "subject to a claim of legal [that is, actionable] plagiarism", and it has no bearing whatsoever on the former issue. Thus, George writes:
1av vphi1

The intentional representation of another persons words, thoughts, or ideas as ones own without giving attribution is plagiarism. "Judicial plagiarism" is the copying of words or ideas first written down by another judge, advocate, legal writer or commentator without giving credit to the originator of that work. It can include such things as a judges copying of anothers judges opinion, the adoption verbatim of an advocates findings of fact and conclusions of law, the wholesale adoption of an advocates brief, or the copying of a portion of a law review article and representing it as the judges own thoughts. The lack of attribution makes this activity "judicial plagiarism," but without legal sanctions.17 Indeed, my previous Dissent stated that inasmuch as sanctions for judicial plagiarism are concerned, "there is no strictly prevailing consensus regarding the need or obligation to impose sanctions on judges who have committed judicial plagiarism." Yet the absence of a definite answer to the question of liability does not grant judges carte blanche to use the work of others without attribution, willy-nilly, in their judicial opinions. As George puts it, "the judge is ethically bound to give proper credit to law review articles, novel thoughts published in legal periodicals, newly handed down decisions, or even a persuasive case from another jurisdiction."18 Plainly, George is of the opinion that though a judge may not be held liable for an act of judicial plagiarism, he should still attribute. A note about "intentional representation." A careful reading of Georges writing on judicial plagiarism will make it clear that she does not consider "inadvertent" or "unintentional" plagiarism not plagiarism; indeed, she makes the distinction between "intentional" and "unintentional" plagiarism several times, treating both as types of plagiarism: Using anothers language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.19 ...

The lack of proper attribution may be unintentional and due to sloppy note taking, either by the law clerk or the judge.20 ... Judicial plagiarism may also arise from the use of law clerks performing research and writing of draft decisions and who may not accurately reflect the source. The plagiarized material may be included within the draft resulting from the law clerks poor research skills.21 ... The commission of unintended judicial plagiarism is unethical, but it is not sanctionable.22 The intentional representation of which George speaks, then, may be considered as the intent to represent a work as ones own already embodied in claiming a work by, for instance, affixing ones name or byline to it in which case the inadvertence, or lack thereof, by which an act of plagiarism was committed is irrelevant to a finding of plagiarism. While George is perhaps not as exacting in her valuation of the penalties for plagiarism as others may be, she still emphasizes that her view on the exemption of judicial plagiarism from sanctions among which she evidently counts social stigma, censure, and ostracism does not negate the judges ethical obligation to attribute. She writes: In conclusion, this author believes that a judicial writer cannot commit legal plagiarism because the purpose of his writing is not to create a literary work but to dispose of a dispute between parties. Even so, a judge is ethically bound to give proper credit to law review articles, novel thoughts published in legal periodicals, newly handed down decisions, or even a persuasive case from another jurisdiction. While the judge may unwittingly use the language of a source without attribution, it is not proper even though he may be relieved of the stigma of plagiarism.23 As I wrote in my previous Dissent: In so fulfilling her obligations, it may become imperative for the judge to use "the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute." Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism "detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy" or that it falls far short of the high ethical standards to which judges must adhere.24 It must not be forgotten, however, that Georges view tends toward the very liberal. There are other writings, and actual instances of the imposition of sanctions, that reveal a more exacting view of the penalties merited by judicial plagiarism.25 B. On the Countercharges Made by Justice Abad In his Concurring Opinion in A.M. No. 10-7-17-SC, Justice Abad alleged that I myself have "lifted from works of others without proper attribution," having written "them as an academician bound by the high standards" that I espouse. Regarding this allegation, let us recall my Dissent promulgated on 12 October 2010. I stated:

Plagiarism thus does not consist solely of using the work of others in ones own work, but of the former in conjunction with the failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as ones own. As the work is anothers and used without attribution, the plagiarist derives the benefit of use form the plagiarized work without expending the requisite effort for the same at a cost (as in the concept of "opportunity cost") to its author who could otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.26 Allow me to analyze the allegations of Justice Robert C. Abad point by point using the same standard I propounded in my 12 October 2010 Dissent. 1. The alleged non-attribution to the Asian Development Banks Country Governance Assessment Report for the Philippines (2005). TABLE H: Comparison of Justice Abads allegations, the 2001 and 2007 versions of the article coauthored with Drs. De Dios and Capuno, and the ADB Country Governance Assessment of 2005. Excerpt from the Article Co-Authored with Drs. De Dios and Capuno: Reproduction of J. Abads Allegations Justice and the Cost of Doing Business: The Philippines, report submitted to the World Bank, 2001. Costs, on the other hand, refer to both the monetary and nonmonetary opportunities that business people forego as a result of making use of the judicial system itself. Direct costs refer not only to the fees paid the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers fees and documentation). Indirect costs also inevitably arise, of which the most important are those arising from delays in the resolution of cases, and the failure to come up with timely decisions. Excerpt from the Article Co-Authored with Drs. De Dios and Capuno: Excerpt from the ADB Country Governance Assessment: Philippines Asian Development Bank Country Governance Assessment: Philippines, 2005. Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers not only to fees paid to the courts but also to out-ofpocket costs arising from litigation itself (e.g., lawyers fees and compensation, transcript fees for stenographic notes, etc.). Indirect costs refer to lost opportunities arising from delays in the resolution of cases and the time spent by a litigant attending and following up a case.

1.

Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers not only to fees paid to the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers fees and compensation, transcript fees for stenographic notes, etc.). Indirect costs refer to lost opportunities arising from delays in the resolution of cases and the time spent by a litigant attending and following up a case. [Asian Development Bank Country Governance Assessment (Philippines)

2005, page 103] Justice and the Cost of Doing Business: The Philippines, UP School of Economics Discussion Paper 0711, October 2007. Costs, on the other hand, refer to both the monetary and nonmonetary opportunities that business people forego as a result of making use of the judicial system itself. Direct costs refer not only to the fees paid the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers fees and documentation). Indirect costs also inevitably arise, of which the most important are those arising from delays in the resolution of cases, and the failure to come up with timely decisions. Justice Abad accuses Dr. Emmanuel S. De Dios, Dr. Joseph J. Capuno, and me of copying, without attribution, three sentences from the Asian Development Banks 2005 Outlook Report for the Philippines, and incorporating them into our 2007 paper entitled "Justice and the Cost of Doing Business." 27 I thank Justice Abad for alerting me to this particular ADB publication; otherwise I would not have noticed ADBs failure to attribute the same to my co-authored work produced in 2001. Were it not for his charges, I would not have learned of such inadvertent error from the ADB. I have thus called the attention of my co-authors, Drs. De Dios and Capuno, to this matter. Below is a reproduction of the contents of my letter to Drs. De Dios and Capuno: Hon. Maria Lourdes P.A. Sereno Associate Justice Supreme Court of the Philippines February 4, 2011 Dr. Emmanuel C. De Dios Dr. Joseph D. Capuno School of Economics University of the Philippines Dear Drs. De Dios and Capuno

Greetings! I have been recently alerted to a possible plagiarism that we are suspected to have committed with respect to the 2005 Asian Development Bank Outlook Report, specifically three sentences in page 103 that reads: ... Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers not only to fees paid to the courts but also to out-of-pocket costs arising from litigation itself (e.g. lawyers fees and compensation, transcript fees for stenographic notes, etc.) Indirect costs refer to lost opportunities arising from delays in the resolution of cases and the time spent by a litigant attending and following up a case. On examination, I discovered that it is the ADB that failed to attribute those sentences to the report we submitted in August 2001 to the World Bank entitled "Justice and the Cost of Doing Business: The Philippines," specifically found in the third paragraph of our 2001 report. May I suggest that perhaps you could alert our friends at the ADB regarding the oversight. It would be nice if our small study, and the World Bank support that made it possible, were appropriately recognized in this ADB publication. Warmest regards always. Sincerely, Maria Lourdes P.A. Sereno A proper reading of the ADB publication will immediately convey the fact that the ADB considers one of my writings as a resource on the topic of Philippine judicial reform. My name is quoted four (4) times in the text. A reading of the references listed one of my 2001 papers, which I wrote singly as the source. Note the following references to my writing: ... It is incumbent upon the courts to harmonize these laws, and often they would find the absence of constitutional standards to guide them (Sereno 2001). at page 98 ... ... Critics pointed out that the Supreme Court should not have made factual declarations on whether a property belongs to the national patrimony in the absence of an operative law by which a factual determination can be made (Sereno 2001). at page 99 ... As Sereno pointed out, if this tension between the three branches is not resolved satisfactorily, it will create a climate of unpredictability as a result of the following: at page 99 ... (iii) a court that will continually have to defend the exercise of its own powers against the criticism of the principal stakeholders in the process of economic policy formulation: the executive and legislative branches and the constituencies consulted on the particular economic issues at hand (Sereno 2001). Had Justice Abad or his researcher taken the time to go through the ADB material, it would have been immediately apparent to either of them that ADB was merely collating the thoughts of several

authors on the subject of Philippine judicial reform, and that I was one of those considered as a resource person. He would not then have presumed that I copied those sentences; rather, it might have struck him that more likely than not, it was the ADB echoing the thoughts of one or some of the authors in the reference list when it used those quoted sentences, and that the pool of authors being echoed by ADB includes me. The reference list of the ADB report with the relevant reference is quoted herein: REFERENCES ... Sereno, Ma. Lourdes. 2001. The Power of Judicial Review and Economic Policies: Achieving Constitutional Objectives. PHILJA-AGILE-USAID Project on Law and Economics." at page 158. What is more unfortunate is that I was immediately accused of having copied my sentences from ADB when a simple turn of the page after the cover page of our 2007 paper would reveal that the 2007 paper is but a re-posting of our 2001 work. The notice on page 2 of the paper that is found in the asterisked footnote of the title reads: This paper was originally submitted in August 2001 as project report to the World Bank. During and since the time this report was written, the Supreme Court was engaged in various projects in judicial reform. The authors are grateful to J. Edgardo Campos and Robert Sherwood for stimulating ideas and encouragement but take responsibility for remaining errors and omissions. The Asian Institute of Journalism and Communication provided excellent support to the study in the actual administration of the survey questionnaire and conduct of focus group discussions. This charge is made even more aggravating by the fact that the Supreme Court itself, through the Project Management Office, has a copy of my 2001 paper. In July 2003, a "Project Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the Philippines for a Judicial Reform Support Project" was officially filed by the World Bank as Report No. 25504.28 The applicant Supreme Courts representative is named as Chief Justice Hilario Davide. The project leader is named as Evelyn Dumdum. The Report lists the technical papers that form the basis for the reform program. Among the papers listed is our 2001 paper. What is worse, from the point of view of research protocols, is that a simple internet search would have revealed that this 2001 co-authored paper of mine has been internationally referred to at least four (4) times in three (3) English language publications and one (1) Japanese- or Chineselanguage publication; two of these are prior to the year 2005 when the relevant ADB Outlook Report came out. The authors of the English-language works are all scholars on judicial reform, and they cite our work as one of the pioneering ones in terms of measuring the relationship between dysfunctions in the judicial system and the cost to doing business of such dysfunctions. It would have then struck any researcher that in all probability, the alleged plagiarized sentences originated from my co-authors and me. The references to my 2001 paper appear in the following international publications: a) Sherwood, Robert. Judicial Performance: Its Economic Impact in Seven Countries; at page 20. (http://www.molaah.com/Economic%20Realities/Judicial%20Performance.pdf) b) Messick, Richard. Judicial Reform and Economic Growth: What a Decade of Experience Teaches; at pages 2 and 16. (2004). http://www.cato.org/events/russianconf2004/papers/messick2.pdf

c) Herro, Alvaro and Henderson, Keith. Inter-American Development Bank. The Cost of Resolving Small-Business Conflicts in Sustainable Development Department Best Practices Series; at page 46. (2004) http://www.ifes.org/~/media/Files/Publications/White%20PaperReport/2003/258/SME_Peru_ Report_final_EN.pdf d) World Development Report 2005 (Japanese language); at page 235 (2005) ("url" in Japanese characters) 2. The purported non-attribution of the "Understanding on the Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the General Agreement on Tariffs and Trade 1994."29 I will spare the reader the tedium of reading twenty pages of treaty rules and working procedures, and thus omit the three-column table I have used in other sections of this Dissent. The rules and procedures may be accessed online at the following locations: 1. Marrakesh Declaration of 15 April 1994 <http://www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.pdf> (Last accessed on 16 February 2011) 2. Understanding on Rules and Procedures Governing the Settlement of Disputes <http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf> (Last accessed on 16 February 2011) 3. Working Procedures for Appellate Review <http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm#20> (Last accessed on 16 February 2011) Justice Abad himself provides evidence of the attribution I made when he says: Justice Sereno said that this section is drawn from Article XX and XXII of the GATT 1994, Understanding on Dispute Settlement and Working Procedures. I think the problem lies in the fact that neither Justice Abad nor his researcher is aware that the phrase "Understanding on Dispute Settlement" is the short title for the "Understanding on the Rules and Procedures Governing the Settlement of Disputes", which is formally known also as Annex 2 of the Marakkesh Agreement Establishing the World Trade Organization (short form of treaty name: WTO Treaty). A quick visit to the WTO website will show that the WTO itself uses any of the terms "DSU," "Dispute Settlement Understanding" or "Understanding on Dispute Settlement" (UDS) as short forms for the said Annex. The WTO webpage30 shows that "Understanding on Dispute Settlement" is the first short way they call the long set of rules covered by Annex 2 of the WTO Treaty. More importantly, the WTO documents that were cited here are public international documents and rules governing the relations of states. In page 6 of my article, "Toward the Formulation of a Philippine Position in Resolving Trade and Investment Dispute in APEC," I explain the modes of resolving trade and investment disputes by APEC countries, and one of these modes is the WTO dispute settlement mechanism governed by the WTO rules themselves. This is therefore a meaningless charge.

Assuming that Justice Abad knows that the above treaty titles are interchangeable, then his charge is akin to complaining of my supposed failure for having simply written thus: "The following are the requirements for filing a complaint under the Rules of Court" and then for having immediately discussed the requirements under the Rules of Court without quotation marks in reference to each specific rule and section. If this is the case, then it appears that in Justice Abads view I should have written: "the following are the requirements provided for under the 1997 Rules of Civil Procedure (Bar Matter No. 803) for filing a complaint" and then used quotation marks every time reference to the law is made. Nothing can be more awkward than requiring such a tedious way of explaining the Rules of Court requirements. I have made no such comparable charge of violation against Justice del Castillo in the Dissent to the main Decision and I am not making any such claim of violation in my Dissent to the Resolution denying the Motion for Reconsideration, because that would be a meaningless point. Regarding the phrase allegedly coming from Professor Oppenheim on good offices and mediation, this is a trite, common, standard statement with nothing original at all about it that can be found in any international dispute settlement reference book, including those that discuss WTO dispute settlement systems. The phrase is a necessary, cut-and-dried statement on the use of good offices and mediation, which take place alongside the formal dispute settlement system in major international dispute settlement systems. The system is provided for expressly in Article 5.5 and 5.6 of the DSU. A quick view of the WTO website makes this point very apparent.31 3. The supposed non-attribution of a phrase from Baker v. Carr. TABLE I: Comparison of Justice Abads allegations, the legal memorandum in Province of North Cotabato v. Peace Panel, and the decision of the U.S. Supreme Court in Baker v. Carr, cited in the legal memorandum. Excerpt from the Legal Memorandum Prepared by J. Sereno: Reproduction of J. Abads Allegations Petitioners-Intervenors Memorandum, Province of North Cotabato v. Peace Panel 3.4 The power to determine whether or not a governmental act is a political question, is solely vested in this Court, and not with the Respondents. This Honorable Court had firmly ruled that Article VIII, Section 1 of the Constitution, as rejected the prudential approach taken by courts as described in Baker v. Carr. Indeed, it is a duty, not discretion, of the Supreme Court, to take cognizance

Excerpt from the SourceCited by J. Sereno: Baker v. Carr, 369 U.S. 186 (1962). Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial

discretion x x x [Baker v. Carr, 169 U.S. 186]

of a case and exercise the power of judicial review whenever a grave abuse of discretion has been prima facie established, as in this instance. 3.5 In this case, Respondents cannot hide under the political question doctrine, for two compelling reasons. 3.6 First, there is no resolute textual commitment in the Constitution that accords the President the power to negotiate with the MILF. 3.13 Second, there is no lack of a judicially discoverable and manageable standard for resolving the question, nor impossibility of deciding the question without an initial policy determination of a kind clearly for non-judicial discretion. On the contrary, the negotiating history with Muslim secessionist groups easily contradict any pretense that this Court cannot set down the standards for what the government cannot do in this case. (pp. 47-50 of the Memorandum)

discretion. Source cited: Baker v. Carr

A simple upward glance nine paragraphs above the phrase that Justice Abad quoted from my posthearing Memorandum in the GRP-MILF MOA-AD case would show that Baker v. Carr was aptly cited. For quick reference, I have reproduced the pertinent parts of my legal memorandum in the middle column of the above table. Baker v. Carr was discussed in the context of my argument that Marcos v. Manglapus has adopted a more liberal approach to the political question jurisdictional defense, and has rejected the prudential

approach taken in Baker v. Carr. The offending paragraph that Justice Abad quoted was meant to demonstrate to the Court then hearing the GRP-MILF MOA-AD case that even if we apply Baker v. Carr, the Petition has demonstrated satisfaction of its requirement: the presence of a judiciallydiscoverable standard for resolving the legal question before the Court. Justice Abads charge bears no similarity to the violations of the rules against plagiarism that I enumerated in pages 16 to 19 of my Dissent dated 12 October 2010. I have made no similar complaint against the work in Vinuya. 4. The alleged plagiarism of the internet-based World Trade Organization factsheet. TABLE J: Comparison of Justice Abads allegations, the article, entitled Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting, and the WTO Factsheet cited in the article. Excerpt from the Work of J. Sereno: Reproduction of J. Abads Allegations Sereno, Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting, 52 U.S.T. L. Rev. 259 (20072008) This reticence, to link investment regulation with the legal disciplines in the WTO, compared to the eagerness with which other issues are linked to trade rules, was evident even in the precursor to the Marakkesh Agreement.[2]

Excerpt from the Source Citedby J. Sereno: http://www.fas.usda.gov/ info/factsheets/wto.html Source cited:

The World Trade Organization (WTO), established on January 1, 1995, is a multilateral institution charged with administering rules for trade among member countries. Currently, there are 145 official member countries. The United States and other countries participating in the Uruguay Round of Multilateral Trade Negotiations (19861994) called for the formation of the WTO to embody the new trade disciplines adopted during those negotiations.

The World Trade Organization (WTO), established on January 1, 1995, is a multilateral institution charged with [2] Marakkesh Agreement established the administering rules for World Trade Organization and replaced trade among member GATT as an international organization. It countries. Currently, was signed by ministers from most of the there are 145 official 123 participating governments at a member countries. The meeting in Marrakesh, Morocco on April United States and other 15, 1994. countries participating in the Uruguay Round of The World Trade Organization (WTO) was Multilateral Trade Negotiations (1986established on January 1, 1995. It is a 1994) called for the multilateral institution charged with formation of the WTO to administering rules for trade among member countries. The WTO functions as embody the new trade the principal international body concerned disciplines adopted during those with multilateral negotiations on the The WTO functions as negotiations. reduction of trade barriers and other the principal measures that distort competition. The international body WTO also serves as a platform for The WTO functions as concerned with countries to raise their concerns regarding the principal multilateral negotiations the trade policies of their trading partners. international body on the reduction of trade The basic aim of the WTO is to liberalize concerned with barriers and other world trade and place it on a secure basis, multilateral negotiations measures that distort thereby contributing to economic growth on the reduction of trade competition. The WTO and barriers and other

also serves as a platform for countries to raise their concerns regarding the trade policies of their trading partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development. [WTO FACTSHEET http://www.fas.usda.gov/ info/factsheets/wto.html, last accessed February 13, 2008.]

development.http://www.fas.usda.gov/info/ measures that distort competition. The WTO also serves as a factsheets/wto.html (last accessed platform for countries to February 13, 2008).(Emphasis supplied.) raise their concerns regarding the trade (p. 260-261, footnote 2 of J. Serenos policies of their trading work) partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development. Source cited: http://www.fas.usda.gov/ info/factsheets/wto.html

Justice Abad has likewise pointed out that I made it appear that the description of the WTO in my article entitled "Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting" was my own original analysis. Again, a cursory reading of the article will show that the paragraph in question was actually the second footnote in page 2 of the article. The footnote was made as a background reference to the Marrakesh Agreement, which, as I explained earlier in the article, established the WTO. The footnote thus further provided background information on the WTO. Contrary, however, to Justice Abads allegation, I clearly attributed the source of the information at the end of the footnote by providing the website source of this information and the date I accessed the information. Thus, should one decide to follow the website that I cited, one would immediately see the information contained in the article was lifted from this direct source. 5. The purported non-attribution to Judge Richard A. Posners seminal work in his book Economic Analysis of Law. TABLE K: Comparison of Justice Abads allegations, the article entitled Lawyers Behavior and Judicial Decision-Making, and Judge Richard A. Posners book Economic Analysis of Law, cited in the article. Excerpt from the Work of J. Sereno: Reproduction of J. Abads Allegations Sereno, Lawyers Behavior and Judicial DecisionMaking, 70(4) Phil. L. J. 476 (1996). Excerpt from the SourceCited by J. Sereno: Richard A. Posner, Economic Analysis of Law, (2nd ed. 1977).

[S]ettlement negotiations ...We could deal with this As with any contract, a will fail and litigation ensue, problem later. What I would necessary (and usually only if the minimum price propose to evaluate at this why not always?

that the plaintiff is willing to accept in compromise of his claim is greater than the maximum price the defendant is willing to pay in satisfaction of the claim. [Posner, p. 434]

point is the preconditions thatJudge Richard Posner theorizes as dictating the likelihood of litigating... Posners model is but a simple mathematical illustration or validation of what we as laymen have always believed to be true, although how to prove it to be true has always remained a problem to us. We have always known that the decision on whether to settle or not is dictated by the size of the stakes in the eyes of the parties, the costs of litigation and the probability which each side gives to his winning or losing. But until now, we have only been intuitively dealing with a formula for arriving at an estimation of the "settlement range" or its existence in any given controversy. Simply, the settlement range is that range of prices in which both parties would be willing to settle because it would increase their welfare. Settlement negotiations will fail, and litigation will ensue, if the minimum price that plaintiff is willing to accept in compromise of his claim is greater than the maximum price that the defendant is willing to pay in satisfaction of that claim. (pp. 481-483 of Lawyers Behavior and Judicial Decision-Making)

sufficient) conditions for negotiations to succeed is that there be a price at which both parties would feel that agreement would increase their welfare. Hence settlement negotiations should fail, and litigation ensue, only if the minimum price that the plaintiff is willing to accept in compromise of his claim is greater than the maximum price that the defendant is willing to pay in satisfaction of that claim; . Source cited: Richard A. Posner, Economic Analysis of Law, 435 (2nd ed. 1977).

Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and nonmonetary elements. [Posner, p. 415] [T]he rules of the judicial process have been carefully designed both to the prevent the judge from receiving a monetary payoff from deciding a particular case one way or the other and to minimize the influence of politically effective interest group in his decisions. [Posner, 415] It is often argued, for example, that the judge who owns land will decide in favor of landowners, the judge who walks to work will be in favour of pedestrians. [Posner, 415] A somewhat more plausible case can be made that judgesmight slant their decisions in favour of powerful interest groups in order to increase the prospects of promotion to higher office, judicial or otherwise. [Posner, p. 416] [J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416]

What the Judge Maximizes 19.7 WHAT DO JUDGES MAXIMIZE? In understanding judicial behavior, we have to This section attempts to assume, that judges, like sketch a theory of judicial all economic actors incentives that will maximize a utility function. reconcile these This function in all assumptions. probability includes material as well as nonPresumably judges, like material factors. In the rest of us, seek to American literature, they maximize a utility function have come up with several that includes both theories on what judges monetary and maximize. nonmonetary elements (the latter including The first is that the leisure, prestige, and American judicial system power). As noted earlier, have rules designed to however, the rules of the minimize the possibilities of judicial process have been a judge maximizing his carefully designed both to financial interest by prevent the judge from receiving a bribe from a receiving a monetary litigant of from acceding to payoff from deciding a a politically powerful particular case one way or interest group by making the other and to minimize the rules work in such a the influence of politically manner as to create effective interest groups disincentives for the judge on his decisions. To be ruling in such a manner. sure, the effectiveness of these insulating rules is sometimes questioned. It The second, proceeding is often argued, for from the first is that the example, that the judge judge maximizes the who owns land will decide interest of the group to in favor of landowners, the which he belongs. If he belongs to the landowning judge who walks to work in favor of pedestrians, the class, he will generally favor landowners, and if he judge who used to be a corporate lawyer in favor walks to work, he will of corporations.... generally favor pedestrians. A somewhat more plausible case can be The third is that the judge maximizes the prospects of made that judges might slant their decisions in his promotion to a higher favor of powerful interest office by slanting his groups in order to decisions in favor of increase the prospects of powerful interest groups. promotion to higher office, judicial or otherwise.... The last is that judges maximize their influence on

society by imposing their values, tastes and preferences thereon.

It would seem, therefore, that the explanation for judicial behavior must lie elsewhere than in pecuniary or political Depending on ones factors. That most judges impressions and experiences (since there is are leisure maximizers is no empirical data on which an assumption that will not a more scientific conclusion survive even casual observation of judicial can be reached on which behavior. A more of the above four theories attractive possibility, yet are correct), we can see still one thoroughly the relation of this utilityconsistent with the maximizing behavior on ordinary assumptions of both our probability economic analysis, is that estimate function judges seek to impose and Posnersprecondition their preferences, tastes, inequality for litigation. Although more research is values etc. on society.... required in this area, if we believe Posnersfunction to Source: be true. Richard A. Posner, (Emphasis supplied.) Economic Analysis of Law, 415-16 (2nd ed. 1977). (pp. 489 of Lawyers Behavior and Judicial Decision-Making) May I invite the reader to read my entire article entitled "Lawyers Behavior and Judicial DecisionMaking," accessible online at <http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20number%2 04%20-02-%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf>, so that the alleged copying of words can be taken in the proper context. It must first be emphasized that the whole article was largely a presentation and discussion of Judge Posners economic models of litigation and settlement, applying what he had written to the context of the Philippines. An examination of the article will show that Posners work was referred to no less than fourteen (14) times throughout the article, excluding the use of pronouns that also refer to Posner, such as "he" and "him." A diligent reading of the full text of the article will reveal that I have intentionally and heavily used Posners opinions, analyses, models, and conclusions while crediting him with the same. Furthermore, the passages cited in the table of counter-charges use what one may call the "terms of the trade" in the field of law and economics, or indeed in the field of economics itself. The maximization of an individuals utility is one of the core principles on which the study of an individuals choices and actions are based. The condition for the success/failure of settlement bargaining is practically a definition, as it is also a fundamental principle in the study of bargaining and negotiation that the minimum price of one of the parties must not exceed the maximum price the other party is willing to pay; that particular passage, indeed, may be regarded as a re-statement, in

words instead of numbers, of a fundamental mathematical condition as it appears in Posners model and in many similar models. To allow industry professionals to have their say on the matter, I have written a letter to Dr. Arsenio M. Balisacan, the Dean of the University of the Philippines School of Economics, requesting that my paper, Lawyers Behavior and Judicial Decision-Making, be examined by experts in the field to determine whether the allegations of plagiarism leveled against me have basis. I am reproducing the contents of the letter below. Hon. Maria Lourdes P.A. Sereno Associate Justice Supreme Court of the Philippines February 11, 2011 Dr. Arsenio M. Balisacan Dean School of Economics University of the Philippines Dear Dr. Balisacan: Greetings! I hope this letter finds you in the best of health. I write because I have a request to make of your highly-respected institution. I have been recently accused of plagiarizing the work of Judge Richard Posner in one of the articles on law and economics that I have written and that was published in the Philippine Law Journal entitled "Lawyers Behavior and Judicial Decision-Making", 70 Phil L. J. 475-492 (June 1996). The work of Posner that I am accused of having plagiarized is the second edition of the book entitled "Economic Analysis of Law", published in 1977 by Little, Brown and Company. May I ask you for help in this respect I wish to submit my work to the evaluation of your esteemed professors in the UP School of Economics. My work as an academic has been attacked and I would wish very much for a statement from a panel of your choosing to give its word on my work. I am attaching a table showing which part of Posners work I am alleged to have plagiarized in my Philippine Law Journal article. Thank you very much. I will be much obliged for this kind favor. Very truly yours, Maria Lourdes P.A. Sereno The problem with the majority approach is that it refuses to face the scale of the plagiarism in the Vinuya Decision. If only that were the starting point for the analysis of the majority, then some of my colleagues would not have formed the impression that I was castigating or moralizing the majority. No court can lightly regard a ponencia, as in Vinuya, where around 53% of the words used for an important section were plagiarized from sources of original scholarship. Judges and their legal researchers are not being asked to be academics; only to be diligent and honest.

IV. The Role of the Judiciary in Society On more than one occasion, this Court has referred to one of its functions as the symbolic or educative function, the competence to formulate guiding principles that may enlighten the bench and the bar, and the public in general.32 It cannot now backpedal from the high standards inherent in the judicial role, or from the standards it has set for itself. The need to cement ethical standards for judges and justices is intertwined with the democratic process. As Lebovits explained: The judiciary's power comes from its words alonejudges command no army and control no purse. In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Opinion writing is public writing of the highest order; people are affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they writeopinions scrutinized by litigants, attorneys, other judges, and the publicare held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion. 33 Justice George Rose Smith once pointed to the democratic process as a reason to write opinions: "Above all else to expose the court's decision to public scrutiny, to nail it up on the wall for all to see. In no other way can it be known whether the law needs revision, whether the court is doing its job, whether a particular judge is competent." Justice Smith recognized that judges are not untouchable beings. Judges serve their audience. With this service comes the need for judges to be trusted. Writing opinions makes obtaining trust easier; it allows an often opaque judicial institution to become transparent.34 Judges cannot evade the provisions in the Code of Judicial Conduct.35 A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The drafters of theModel Code were aware that to be effective, the judiciary must maintain legitimacy and to maintain legitimacy, judges must live up to the Model Code's moral standards when writing opinions. If the public is able to witness or infer from judges' writing that judges resolve disputes morally, the public will likewise be confident of judges' ability to resolve disputes fairly and justly.36 (Citations omitted) Canon 1 of the Code of Judicial Conduct states that a judge should uphold the integrity and independence of the judiciary. Rule 1.01 in particular states that a judge should be the embodiment of competence, integrity, and independence. Canon 3 then focuses on the duty of honesty in the performance of official duties, as well as on the supervision of court personnel: Rule 3.09. A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity. Rule 3.10. A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware. Paragraph 17 of the Code of Judicial Ethics37 focuses on the writing of judicial opinions:

In disposing of controversial cases, judges should indicate the reasons for their action in opinions showing that they have not disregarded or overlooked serious arguments of counsel. They should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. (Emphasis supplied) Paragraph 31, "a summary of judicial obligations," contains a more general statement regarding the behavioral norms required of judges and justices alike, stating: A judges conduct should be above reproach and in the discharge of his judicial duties, he should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, and regardless of private influence should administer justice according to law and should deal with the patronage of the position as a public trust; and he should not allow outside matters or his private interests to interfere with the prompt and proper performance of his office. That judges and justices alike are subject to higher standards by virtue of their office has been repeatedly pronounced by the Supreme Court: Concerned with safeguarding the integrity of the judiciary, this Court has come down hard and wielded the rod of discipline against members of the judiciary who have fallen short of the exacting standards of judicial conduct. This is because a judge is the visible representation of the law and of justice. He must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties but also as to his behavior outside his sala and as a private individual. His character must be able to withstand the most searching public scrutiny because the ethical principles and sense of propriety of a judge are essential to the preservation of the peoples faith in the judicial system.38 Thus, being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen.39 A judge should personify integrity and exemplify honest public service. The personal behavior of a judge, both in the performance of his official duties and in private life should be above suspicion.40 Concerned with safeguarding the integrity of the judiciary, this Court has come down hard on erring judges and imposed the concomitant punishment.41 As held by the Court in Teban Hardware and Auto Supply Co. v. Tapucar:42 The personal and official actuations of every member of the Bench must be beyond reproach and above suspicion. The faith and confidence of the public in the administration of justice cannot be maintained if a Judge who dispenses it is not equipped with the cardinal judicial virtue of moral integrity, and if he obtusely continues to commit an affront to public decency. In fact, moral integrity is more than a virtue; it is a necessity in the Judiciary. The inherent value of judicial decisions goes beyond the resolution of dispute between two parties. From the perspective of the judge, he has fulfilled his minimum burden when he has disposed of the case. Yet from the perspective of the public, it is only through publicized decisions that the public experiences the nearest approximation of a democratic experience from the third branch of Government. Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge. Justice thus requires that all should have free access to the

opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public.43 The clearest manifestation of adherence to these standards is through a Justices written opinions. In the democratic framework, it is the only way by which the public can check the performance of such public officers obligations. Plagiarism in judicial opinions detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy.44 It is objectionable not only because of its inherent capacity to harm, but the overarching damage it wreaks on the dignity of the Court as a whole. The Courts Educative Function The Courts first Decision in this case hinged on the difference between the academic publishing model on the one hand, and the judicial system on the other. It proceeded to conclude that courts are encouraged to cite "historical legal data, precedents, and related studies" in their decisions, so that "the judge is not expected to produce original scholarship in every respect." This argument presents a narrower view of the role of the courts than what this countrys history consistently reveals: the judiciary plays a more creative role than just traditional scholarship. No matter how hesitantly it assumes this duty and burden, the courts have become moral guideposts in the eyes of the public. Easily the most daunting task which confronts a newly appointed judge is how to write decisions. It is truly a formidable challenge considering the impact of a courts judgment reverberates throughout the community in which it is rendered, affecting issues of life, liberty, and property in ways that are more pervasive and penetrating than what usually appears on the surface or under it.45 The impact of judicial decisions has even been codified in paragraph 2 of the Canon of Judicial Ethics: "Every judge should at all times be alert in his rulings and in the conduct of the business of his court, so far as he can, to make it useful to litigants and to the community." The error in the contention of the majority that judicial writing does not put a premium on originality is evident. In the words of Daniel Farber, stare decisis has become an oft-repeated catchphrase to justify an unfounded predisposition to repeating maxims and doctrines devoid of renewed evaluation. In reviewing the Court's work, we saw a fixation on verbal formulas; likewise, race scholarship frequently seems to suffer from a similar fixation on stylized rhetoric. Yet Holmes' adage defines the problem a bit too narrowlysuggesting that we mostly need less abstraction and more concreteness. This deficiency actually is part of the problem; we could surely benefit from more empirical research and sensitivity to concrete factual situations. Yet, the problem goes beyond that.46 The consistent resort to stare decisis fails to take into account that in the exercise of the Courts selfproclaimed symbolic function, its first accountability is to its audience: the public. Its duty of guiding the bench and the bar comes a close second. Consider first the judge. A key weakness of current Supreme Court opinions seems to be that judges have sometimes lost track of whom they are addressing or what they are trying to accomplish. Of course, they have no literal clients, but they seek to advance a set of values and perspectives that might serve as the basis for identifying metaphorical clientsThe purpose, then, is to help the system work as well as possible according to its own norms and goals

Often, the purpose is to guide other courts to advance the client's interests in their own decisions. In this respect, the important part of the opinion is that portion speaking to future casesthough as we have seen, judges sometimes fail to focus their energies there. Additionally, the opinion, if it is to elicit more than the most grudging obedience, must appeal to the values and goals of those judges as well as to the author's.47 The Court seemingly views the issuance of opinions to be an end in itself, as if the text of the opinion had some autonomous value unrelated to its ability to communicate to an audience. At a deeper level, the intellectual flaw in the statutory-interpretation opinions is similar. The Court often treats statutes as free-standing texts, with little attention to their historical and social contexts or what their drafters were trying to achieve.48 Thus, the value of ethical judicial writing vis--vis the role that courts are called upon to play cannot be underestimated. Worrying about the ethical status of judicial opinions seems pointless at first. Complaints about decisions and the opinions that explain them have been around as long as judges have been judging. As technology has lowered the cost of research, and of cutting and pasting earlier work, opinions often seem to be formal exercises that do not suggest deep judicial engagement. Other opinions do show the hand of a deeply engaged judge, though these can be worse than the cut-andpasted kind. What then is to be gained by trying to make an ethical issue of judicial writing? Professor Llewellyn said it is in part because the judicial office acts as "a subduer of self and selfwill, as an engine to promote openness to listen and to understand, to quicken evenhandedness, patience, sustained effort to see and judge for All-of-Us." 49 The lessons taught our country by its singular experience in history has given rise to a more defined place for our courts. With the constitutional mandate that the Supreme Court alone can exercise judicial review, or promulgate rules and guidelines for the bench and the bar, or act as the arbiter between the two branches of government, it is all the more evident that standards for judicial behavior must be formulated. After all, "the most significant aspect of the court's work may lie in just this method and process of decision: by avoiding absolutes, by testing general maxims against concrete particulars, by deciding only in the context of specific controversies, by finding accommodations between polar principles, by holding itself open to the reconsideration of dogma, the court at its best, provides a symbol of reconciliation."50 According to Paul Freund, the great fundamental guarantees of our Constitution are in fact, moral standards wrapped in legal commands. It is only fitting that the Court, in taking on the role of a public conscience, accept the fact that the people expect nothing less from it than the best of faith and effort in adhering to high ethical standards. I affirm my response to the dispositive portion of the majority Decision in this case as stated in my Dissent of 12 October 2010, with the modification that more work of more authors must be appropriately acknowledged, apologies must be extended, and a more extensively corrected Corrigendum must be issued. Again, I make no pronouncement on liability, not only because the process was erroneously cut short by the majority when it refused to proceed to the next step of determining the duty of diligence that a judge has in supervising the work of his legal research, and whether, in this instance, Justice del Castillo discharged such duty, but also because of the view expressed by Justice Carpio that this Court had best leave the matter of clearing Justice del Castillo to Congress, the body designated by the Constitution for such matters. It seems now that the process of determining the degree of care required in this case may never be undertaken by this Court. One thing is certain, however: we cannot allow a heavily plagiarized Decision to remain in our

casebooks it must be corrected. The issues are very clear to the general public. A wrong must be righted, and this Court must move forward in the right direction. MARIA LOURDES P. A. SERENO Associate Justice

Footnotes Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Intl L. 225 (2006-2007); Christian J. Tams, Enforcing Erga Omnes Obligations in International Law (2005); Evan J. Criddle and Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Intl L. 331 (2009)
1 2

Justice Antonio T. Carpio, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, A.M. No. 10-7-17-SC.
3

Justice Maria Lourdes P. A. Sereno, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM 10-7-17-SC, promulgated 12 October 2010, at 31.
4

Robert McCorquodale, The Individual and the International Legal System, in International Law, 307-332 (Malcolm Evans ed., 2006).
5

Phoebe Okowa, Issues of Admissibility and the Law on International Responsibility, in International Law (Malcolm Evans ed., 2006).
6

Published in the blog of the European Journal of International Law, accessed at http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-versus-the-primeminister-of-canada. Last visited 24 January 2011, 1:47 p.m.
7

From the Congressional Report Services Memorandum, by Larry Niksch, Specialist in Asian Affairs, Foreign Affairs, Defense and Trade Division, accessible at http://www.awf.or.jp/pdf/h0076.pdf. This document is covered by a copyright notice from the United States Congressional Research Service posted at the website of the Asian Womens Fund: http://www.awf.or.jp/e4/un-05.html#etc. Last accessed 24 January 2011, 2:35 p.m.
8

"So in the process, my practice, which may not be shared by other researchers, my own practice as to doing research for decisions is to basically review all the material that is available insofar as I can. So I review everything, I take notes, I do my own research and then after one has reviewed as much as I am able to, then one starts writing." TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
9

"So what happens, Your Honors, is basically, one does an initial review, sorry, I do an initial review on thisall of these goes for the most articles, Law Journal articles. So one does initial review on these articles and if there is an article that immediately strikes one as relevant or as important or as useful in the course of writing a decision, you can click on it, the blue portion, you can click on this and the article will actually appear. And then you can

read the whole article, you can skim through the article, if again it seems relevant, its possible to e-mail the article to yourself, which makes it easier becauseso at least I have, for instance, all of the articles available like in my home." TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
10

TSN at 29, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
11

Approved by the court en banc on 15 November 2005.

12

A case in which the popup text box would not appear is that in which a block of text containing the note reference mark is selected; the popup text box will only appear if the cursor is hovered near the note reference mark.
13

Richard A. Posner, The Little Book of Plagiarism, 38 (2007). Id. at 106.

14

15

Laurie Stearns, Copy Wrong: Plagiarism, Property, and the Law, 80 Cal. L. Rev. 513, 518 (1992).
16

Id. at 522.

17

Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook, accessed at <http://books.google.com.ph/books?id=7jBZ4yjmgXUC&lpg=PR1&hl=en&pg=PR1#v=onepa ge&q&f=false> on February 8, 2011, at 715.
18

Id. at 726. Id. at 715. Id. at 718. Id. Id. at 726. Id. Supra note 3 at 29.

19

20

21

22

23

24

25

See: In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865 (as cited in Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253); Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 College English 7 (Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403; Klinge v. Ithaca College, 634 N.Y.S.2d 1000 (Sup. Ct. 1995), Napolitano v. Trustees of Princeton Univ., 453 A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 The Georgetown Journal of Legal Ethics 264, note 190; Apotex Inc. v. Janssen-Ortho Inc. 2009, as cited in Emir Aly

Crowne-Mohammed, 22 No. 4 Intell. Prop. & Tech. L. J. 15, 1 as cited in page 28 and footnotes 24, 25, 27 to 29 of my 12 October 2010 Dissent.
26

Id. at 26. Discussion Paper No. 07011, October 2007, UP School of Economics.

27

28

World Bank, Project Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the Philippines for a Judicial Reform Support Project (Report No: 25504) (2003), available at http://wwwwds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2003/07/31/ 000012009_20030731101244/Rendered/PDF/255040PH0PAD.pdf (accessed on February 5, 2011).
29

A minor correction is in order. The "Understanding on the Rules and Procedures Governing the Settlement of Disputes" is Annex 2 to the Marakkesh Agreement Establishing the World Trade Organization. There is no Annex 2 to the General Agreement on Tariffs and Trade 1994. Please see paragraphs 1 to 4 of said GATT 1994 for a list of all its component parts.
30

Understanding on Dispute Settlement, available at http://www.inquit.com/ iqebooks/WTODC/Webversion/ prov/eigteen.htm (accessed on February 5, 2011). World Trade Organization, Dispute Settlement System Training Module: Chapter 8 Dispute Settlement Without Recourse to Panels and the Appellate Body, available at http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c8s1p2_e.htm (accessed on February 5, 2011).
31 32

Salonga v. Cruz Pao, G.R. No. 59525, 18 February 1985, 134 SCRA 438.

33

Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 264 (2008).
34

Id. at 269. Promulgated 5 September 1989, took effect 20 October 1989. Supra note 33 at 240-241. Administrative Order No. 162. In Re Letter of Judge Augustus C. Diaz, A.M. No. 07-7-17-SC, 19 September 2007. A.M. No. RTJ-90-447, 199 SCRA 75, 12 July 1991, 83-84. Junio v. Rivera, A.M. No. MTJ-91-565. August 30, 1993. Castillo v. Calanog, Jr., A.M. No. RTJ-90-447, 16 December 1994, 239 SCRA 268

35

36

37

38

39

40

41

42

Teban Hardware and Auto Supply Co. v. Tapucar, A.M. No. 1720, 31 January 1981, 102 SCRA 492, 504.
43

Ex Parte Brown, 166 Ind. 593, 78 N.E. 553 (1906). Supra note 33 at 282.

44

45

Foreword of Justice Ameurfina A. Melencio Herrera, "Fundamentals of Decision Writing for Judges," (2009).
46

Daniel Farber, Missing the Play of Intelligence, 6 Wm. & Mary L. Rev. 147, (1994). Id. at 170. Id. at footnote 40.

47

48

49

David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 509. (2001).
50

Paul A. Freund, "The Supreme Court" in Talks on American Law 81-94 (rev. ed., 1972).

The Lawphil Project - Arellano Law Foundation

SEPARATE DISSENTING OPINION CARPIO MORALES, J.: I join Justice Antonio T. Carpios thesis in his Dissenting Opinion on the commission of plagiarism or violation of intellectual property rights in the Vinuya decision. I join him too on his other thesis that this Court has no jurisdiction to decide an administrative case where a sitting Justice of this Court has committed misconduct in office, with qualification. I submit that the Court may wield its administrative power against its incumbent members on grounds other thanculpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust, AND provided the offense or misbehavior does not carry with it a penalty, the service of which would amount to removal from office either on a permanent or temporary basis such as suspension. The President, the Vice President, the members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.1(underscoring supplied) In 1988, the Court dismissed the complaint for disbarment against Justice Marcelo Fernan for lack of merit. Aside from finding the accusations totally baseless, the Court, by per curiam Resolution,2 also stated that to grant a complaint for disbarment of a member of the Court during the members

incumbency would in effect be to circumvent and hence to run afoul of the constitutional mandate that members of the Court may be removed from office only by impeachment. In the subsequent case of In Re Raul M. Gonzales,3 this principle of constitutional law was succinctly formulated in the following terms which lay down a bar to the institution of certain actions against an impeachable officer during his or her incumbency. x x x A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarmentduring the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office.4 (emphasis and underscoring supplied; italics in the original) The Court clarified, however, that it is not saying that its members are entitled to immunity from liability for possible criminal acts or for alleged violations of the canons of judicial ethics or codes of judicial conduct. It stressed that there is a fundamental procedural requirement that must be observed before such liability may be determined and enforced. x x x A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehaviour that may be proven against him in appropriate proceedings.5(underscoring supplied) The Court declared the same principle in Jarque v. Desierto6 by Resolution of December 5, 1995. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts. Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the formers retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 of the Anti-Graft and Corrupt Practices Act.7 (underscoring supplied) The immediately-quoted pronouncement implies that the administrative investigation must be initiated during the incumbency of the respondent. That the Supreme Court has overall administrative power over its members and over all members of the judiciary has been recognized.8 Moreover, the Internal Rules of the Supreme Court (2010)9 expressly included, for the first time, "cases involving the discipline of a Member of the Court"10 as among those en banc matters and cases. Elucidating on the procedure, Section 13, Rule 2 of the Courts Internal Rules provides: SEC. 13. Ethics Committee. In addition to the above, a permanent Committee on Ethics and Ethical Standardsshall be established and chaired by the Chief Justice, with following membership: a) a working Vice-Chair appointed by the Chief Justice;

b) three (3) members chosen among themselves by the en banc by secret vote; and c) a retired Supreme Court Justice chosen by the Chief Justice as a non-voting observerconsultant. The Vice-Chair, the Members and the Retired Supreme Court Justice shall serve for a term of one (1) year, with the election in the case of elected Members to be held at the call of the Chief Justice. The Committee shall have the task of preliminarily investigating all complaints involving graft and corruption and violations of ethical standards, including anonymous complaints, filed against Members of the Court, and ofsubmitting findings and recommendations to the en banc. All proceedings shall be completely confidential. The Committee shall also monitor and report to the Court the progress of the investigation of similar complaints against Supreme Court officials and employees, and handle the annual update of the Courts ethical rules and standards for submission to the en banc. (emphasis and underscoring supplied) The Court acknowledged its power to take cognizance of complaints against its incumbent Members. It is circumscribed, however, by the abovementioned principle of constitutional law11 in terms of grounds and penalties. In at least two recent instances, the Court had conducted administrative proceedings against its incumbent Members. In the controversy surrounding the 1999 Bar Examinations, the Court, by Resolution of March 22, 2000 in Bar Matter No. 979, censured then incumbent Justice Fidel Purisima for his failure to disclose on time his relationship to an examinee and for breach of duty and confidence, and declared forfeited 50% of the fees due him as chairperson of the 1999 Bar Examinations Committee. The impositions did not, however, douse the clamor for stiffer penalties on Justice Purisima in case he were found liable after a full, thorough and formal investigation by an independent and impartial committee, which some quarters urged the Court to form. Meanwhile, Justice Purisima retired from the Court on October 28, 2000. By Resolution of November 28, 2000, the Court ruled that "[h]is retirement makes it untenable for this Court to further impose administrative sanctions on him as he is no longer a member of the Court" and referred the bar matter to the Special Study Group on Bar Examination Reforms for report and recommendation. The implication that the Court could have imposed further administrative sanctions on Justice Purisima had he not retired is a recognition that the Court may discipline one of its sitting members. Further, the Court did not explain why the "further" imposition of administrative sanctions was untenable except for the fact that Justice Purisima was no longer a member of the Court. Could it be that the earlier imposed penalties (i.e., censure and partial forfeiture of fees) were already considered sufficient? Could it be that the proper administrative case (arising from the earlier bar matter) was not instituted before Justice Purisima retired? Or could it be that Justice Purisimas retirement benefits were already released to him, leaving the Court with nothing more to go after to or impose (except, perhaps, disqualification to hold any government office)? I thus submit that the failure to initiate an administrative proceeding prior to Justice Purisimas retirement made it untenable for the Court to further impose administrative sanctions on him. What was confirmed by the Purisima case, nonetheless, for purposes of pertinent discussion, is that the Court has jurisdiction to take cognizance of a complaint against an incumbent Justice.

Then there was the case In re: Undated Letter of Mr. Louis Biraogo12 where Justice Ruben Reyes was, inter alia, "held liable for GRAVE MISCONDUCT for leaking a confidential internal document of the Court" for which he was "FINED P500,000.00, to be charged against his retirement benefits, and disqualified to hold any office or employment in any branch or instrumentality of the government including government-owned or controlled corporations."13 The question in Biraogo was not so much on the Courts jurisdiction over the case but on the effect of Justice Reyes subsequent retirement during the pendency of the case. Unlike the present case, however, impeachment proceedings against Justices Purisima and Reyes did not see the light of day as they eventually retired, which mandatory retirement either foreclosed the initiation of further administrative proceedings or directed the imposable sanctions to the retirement benefits. In view of the impeachment complaint filed with the House of Representatives involving the same subject matter of the case, which denotes that a co-equal branch of government found the same act or omission grievous as to present a ground for impeachment and opted to exercise its constitutional function, I submit that the Court cannot proceed with the administrative complaint against Justice Del Castillo for it will either (i) take cognizance of an impeachable offense which it has no jurisdiction to determine, or (ii) downplay the questioned conduct and preempt the impeachment proceedings. I thus join the call of Justice Carpio to recall the Courts October 15, 2010 Resolution, but only insofar as Justice Del Castillo is concerned. All related administrative concerns and issues involving non-impeachable officers therein should still be considered effectual. In Biraogo, the unauthorized release of the unpromulgated ponencia of Justice Reyes in the consolidated Limkaichongcases spawned an investigation to determine who were responsible for the leakage of the confidential internal document of the Court. The investigation led to the disciplining of not just Justice Reyes but also two members of his staff, who were named without hesitation by the Court, viz., Atty. Rosendo B. Evangelista and Armando Del Rosario, and who were held liable for SIMPLE NEGLECT OF DUTY and ordered to pay FINE in the amount of P10,000.00 andP5,000.00, respectively.14 Why, in the present case, the legal researcher who is hiding behind her credentials appears to be held a sacred cow, I cannot fathom. Hers is a new (or better) specie of initialed personification (e.g., "xxx") under the likes of Cabalquinto15which should apply only to cases involving violence against women and children.16 The unjustified non-disclosure of her identity is unfair to Atty. Evangelista who, aside from having his own credentials to protect, had to be mentioned as a matter of course in the committee report adopted by the Court in In re: Undated Letter of Mr. Louis Biraogo, after similarly cooperating with and explaining his side before the investigating committee. Atty. Evangelista was eventually found by the Court to be wanting in care and diligence in securing the integrity and confidentiality of a document. In the present case, the Courts October 15, 2010 per curiam Decision cleared the name of the unnamed legal researcher. While what was at stake in Biraogo was the "physical integrity" of a ponencia, what is at stake in the present case is the "intellectual integrity" of a ponencia. The Court is committing a disservice to its judicial function if it values the physical form of a decision more than what a decision substantially contains.

Moreover, the liability of Justice Reyes did not save the day for Atty. Evangelista who, as the judicial staff head, was tasked to secure and protect the copies of the Limkaichong Decision. Similarly in the present case, independently of Justice Del Castillos "shortcomings," the legal researcher, who was the lone drafter, proofreader and citechecker, was tasked like any other Court Attorney to secure and ensure the substance and legal reasoning of the Vinuya Decision. Like Justice Reyes, Justice Del Castillo can only do so much in claiming responsibility and full control of his office processes and shielding the staff under the mantle of his impeachable wings. Notably, Rule 10.2 of Canon 10 of the Code of Professional Responsibility states that lawyers shall "not knowinglymisquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved." While the provision presupposes knowledge or willful intent, it does not mean that negligent acts or omissions of the same nature by lawyers serving the government go scot-free. Simple neglect of duty is defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference.17 I submit that the legal researcher was remiss in her duties of re-studying the sources or authorities invoked in theVinuya Decision and checking the therein citations or, at the very least, those whose authors rights to attribution and integrity are protected under Intellectual Property Law. While it is incumbent upon her to devise ways and means of legal research, her admitted method or process as shown in the Vinuya case reflects a disregard of a duty resulting from carelessness or indifference. She failed to exercise the required degree of care to a task expected of a lawyeremployee of the Supreme Court. While the Court recognizes that there were indeed lapses in the editorial work in the drafting of the Vinuya Decision, it easily attributed them to "accidental deletions." It conveniently assigned such human errors to the realm of accidents,without explaining whether it could not have been foreseen or avoided. I, therefore, posit that the legal researcher, who must hitherto be named, is liable for Simple Neglect of Duty and must be ordered to pay a Fine in the amount of, following Biraogo, P10,000.00, with warning of more severe sanctions for future similar conduct. Whether liability attaches to what the October 15, 2010 per curiam Decision finds to be deletion or omission of citation "unquestionably due to inadvertence or pure oversight," the fact remains, nonetheless, that there is a need for a textual correction of the Vinuya Decision. This Court should cause the issuance of a corrected version in the form of, what Justice Ma. Lourdes P. A. Sereno suggests as, a "corrigendum." The matter of making corrections in judicial issuances is neither novel nor something beneath the Court. As early as February 22, 2000, the Court already accepted the reality of human error. In A.M. No. 00-2-05-SC, "In the Matter of Correction of Typographical Errors in Decisions and Signed Resolutions," the Court provided a simple procedure in making proper corrections: Inadvertent typographical errors in decisions and signed resolutions of the Court may occur every now and then. As these decisions and signed resolutions are published and preserved for posterity in the Philippine Reports, the Supreme Court Reports Annotated, and other publications as well as in the Supreme Court website, the need for making them free of typographical errors cannot be overemphasized. Care should, therefore, be taken in proofreading them before they are submitted for promulgation and/or publication.

Nevertheless, should typographical errors be discovered after the promulgation and/or publication of decisions and resolutions, the following procedure should be observed to the end that unauthorized corrections, alterations, or intercalations in what are public and official documents are not made. 1. In case of decisions and signed resolutions with the author[s] names indicated, the Reporter and the Chief of the Management Information Systems Office of the Supreme Court should secure the authority of the author concerned to make the necessary correction of typographical errors. In case of per curiam decisions and unsigned resolutions, authority to make corrections should be secured from the Chief Justice. 2. The correction of typographical errors shall be made by crossing out the incorrect word and inserting by hand the appropriate correction immediately above the cancelled word. Such correction shall be authenticated by the author by signing his initials immediately below the correction. In per curiam decisions and unsigned resolutions, and in cases where the author is no longer a member of the Court, the authentication shall be made by the Chief Justice. 3. The Reporter and the Chief of the Management Information Systems Office shall submit to the Court, through the Clerk of Court, a quarterly report of decisions and resolutions in which corrections have been made. The Clerk of Court must thereafter include the report in the agenda of the Court en banc. This resolution takes effect immediately. Despite the avowals of "slip in attribution," "bad footnoting," and "editorial error" in the Courts October 15, 2010 per curiam Decision, to date no effort has been made to correct the Vinuya Decision in conformity with A.M. No. 00-2-05-SC, which only implies that the lapses are not typographical in nature. The corrections of the Vinuya Decision cannot simply be made by crossing out the incorrect word and inserting by hand the appropriate correction immediately above the cancelled word, with authentication by the ponente or writer. CONCHITA CARPIO MORALES Associate Justice

Footnotes
1

Constitution, Art. XI, Sec. 2.

Cuenco v. Fernan, Adm. Case No. 3135, February 17, 1988, 158 SCRA 29; vide also the Resolution of April 15, 1988 (160 SCRA 778) where the complainant was severely reprimanded and warned.
3

A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771. Id. at 774. Id. at 776-777.

A.C. No. 4509, December 5, 1995, 250 SCRA xi.

Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, March 4, 2005, 452 SCRA 714, 734-735.
8

In discussing the word "incapacitated," Bernas said that the power to determine incapacity is part of the overall administrative power which the Supreme Court has over its members and over all members of the judiciary [Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), p. 988].
9

A.M. No. 10-4-20-SC (May 4, 2010). Id., Rule 2, Sec. 3, par. (h).

10

11

This framework of constitutional law likewise explains why incumbent Justices of the Supreme Court, by virtue of their being impeachable officers, are not included from the operation of A.M. No. 02-9-02-SC on the "Automatic Conversion of Some Administrative Cases Against Justices of the Court of Appeals and the Sandiganbayan, Judges of Regular and Special Courts, and Court Officials Who Are Lawyers as Disciplinary Proceedings Against Them Both as Officials and as Members of the Philippine Bar" (September 17, 2002). The rule provides that when the said administrative case is based on grounds which are likewise grounds for a disciplinary action of members of the Bar, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar [as applied inAvancena v. Liwanag, A.M. No. MTJ-01-1383, March 5, 2003, 398 SCRA 541 and July 17, 2003, 406 SCRA 300 where the judge was dismissed from service and disbarred from the practice of law. See also Juan de la Cruz (Concerned Citizen of Legazpi City) v. Carretas, A.M. No. RTJ-07-2043, September 5, 2007, 532 SCRA 218; Caada v. Suerte, A.M. No. RTJ-04-1884, February 22, 2008, 546 SCRA 414]. Its application to a particular administrative action is not dependent on the date of commission of the offense but on the date of filing of the case. There is no automatic conversion when the administrative case was filed before October 1, 2002 or prior to the date of effectivity of A.M. No. 02-9-02-SC (vide Office of the Court Administrator v. Morante, A.M. No. P-02-1555, April 16, 2004, 428 SCRA 1, 35-36; J. King and Sons Company, Inc., v. Hontanosas, Jr., A.M. No. RTJ-03-1802, February 28, 2006 Resolution) and the respondent has already been required to comment on the complaint (Heck v. Santos, A.M. No. RTJ-011657, 23 February 2004, 423 SCRA 329, 341).
12

A.M. No. 09-2-19-SC, February 24, 2009, 580 SCRA 106. Id. at 164. Id. The Court explained: Liability of Atty. Rosendo B. Evangelista The Committee finds that Atty. Evangelista, Justice Reyes Judicial Staff Head, was remiss in his duties, which includes the supervision of the operations of the office, particularly with respect to the promulgation of decisions. While it is incumbent upon him to devise ways and means to secure the integrity of confidential documents, his actuations reflected above evinced "a disregard of a duty resulting from carelessness or indifference."

13

14

Atty. Evangelista was admittedly unmindful of the responsible safekeeping of draft ponencias in an unlocked drawer of a member of the staff. He failed to make sure that the unused portion of confidential documents like the second signatory page of the ponencia in Gilbert form had been properly disposed of or shredded. He was not on top of things that concerned the promulgation of ponencias, for he failed to ascertain the status and procedural implication of an "on hold" order after having been apprised thereof by his subordinate, Del Rosario, on July 17, 2008. Despite his awareness that the Limkaichong case would eventually be called again, he admitted that he was not privy to the preparation of the copy of the ponencia for the subsequent session on July 29, 2008. With these findings, the Court finds him liable for SIMPLE NEGLECT OF DUTY. Liability of Armando Del Rosario The committee likewise finds Del Rosario administratively liable for failing to exercise the required degree of care in the custody of the Gilbert copy. Del Rosario admittedly kept the Gilbert copy in an unlocked drawer from July 16, 2008 to December 10, 2008 when he should have known that, by the nature of the document in his custody, he should have kept it more securely. His carelessness renders him administratively liable for SIMPLE NEGLECT OF DUTY, defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference. Time and again, the Court has emphasized the heavy burden and responsibility which court officials and employees are mandated to carry. They are constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. The Court will never countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish the peoples faith in the judiciary. Under Section 23, Rule XIV of the Omnibus Civil Service Rules and Regulations, (simple) neglect of duty is punishable by suspension of one month and one day to six months for the first offense. Under Sec. 19, Rule XIV of the same Rules, the penalty of fine (instead of suspension) may also be imposed in the alternative. Following the Court's ruling in several cases involving (simple) neglect of duty, we find the penalty of fine on Atty. Evangelista and Del Rosario in the amount of P10,000 and P5,000, respectively, just and reasonable. (Id. at 161-163; emphasis, italics and underscoring in the original).
15

People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

16

Vide Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004); A.M. No. 04-10-11-SC of November 14, 2004 (Rule on Violence against Women and their Children); and A.M. No. 99-7-06-SC, In Re Internet Web page of the Supreme Court, Resolution of February 14, 2006.
17

In Re: Undated Letter of Mr. Louis Biraogo, supra at 162, citing Rivera v. Buena, A.M. No. P-07-2394, February 19, 2008, 546 SCRA 222.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION BRION, J.: Background Facts The present administrative disciplinary case against Supreme Court Associate Justice Mariano C. del Castillo stemmed from the decision he penned for the Court in G.R. No. 162230, entitled Isabelita C. Vinuya, et al. v. Executive Secretary. The Vinuya Decision was promulgated on April 28, 2010 with 13 justices of this Court concurring with the ruling to dismiss the case. On July 19, 2010, Attys. Harry Roque and Rommel Bagares, counsels for petitioners Vinuya, et al., filed a Supplemental Motion for Reconsideration raising, among others, the plagiarism allegedly committed by Justice del Castillo for using the works of three foreign legal authors in his ponencia. They alleged that the use was without proper attribution and that Justice del Castillo twisted the foreign authors works to support the Decision. They considered it "highly improper for x x x the Court x x x to wholly lift, without proper attribution, from at least three sources an article published in 2009 in the Yale Law Journal of International Law,1 a book published by the Cambridge University Press in 2005,2 and an article published in the Case Western Reserve Journal of International Law3 and to make it appear that these sources support the assailed Judgments arguments for dismissing [their] petition[,] when in truth, the plagiarized sources even make a strong case for the Petitions claims[.]"4 In reply to the accusation, Justice del Castillo wrote and circulated a letter dated July 22, 2010 to the members of this Court. On July 27, 2010, the Court decided to refer the letter to the Ethics and Ethical Standards Committee (the "Ethics Committee" or "committee") which docketed it as an administrative matter. The committee required Attys. Roque and Bagares to comment on Justice del Castillos letter, after which it heard the parties. After the parties memoranda, the committee submitted its findings and recommendations to the Court. The Courts Decision on the Plagiarism Charge against Justice del Castillo In a Decision dated October 12, 2010, the Court resolved to dismiss the plagiarism charges against Justice del Castillo. It recognized that indeed certain passages of the foreign legal article were lifted and used in the Vinuya Decision and that "no attributions were made to the x x x authors in [its] footnotes."5 However, the Court concluded that the failure to attribute did not amount to plagiarism because no malicious intent attended the failure; the attributions (present in Justice del Castillos original drafts) were simply accidentally deleted in the course of the drafting process. Malicious intent was deemed an essential element, as "plagiarism is essentially a form of fraud where intent to deceive is inherent." Citing Blacks Law Dictionarys definition of plagiarism the deliberate and knowing presentation of another persons original ideas or creative expressions as ones own the Court declared that "plagiarism presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own." In fact, the Court found that by citing the foreign authors original sources, Justice del Castillo never created the impression that he was the original author of the passages claimed to have been lifted from the foreign law articles:

The Court also adopts the Committees finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place. As to the charge that Justice del Castillo twisted the meaning of the works of the foreign authors, the Court ruled that it was impossible for him to have done so because: first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo "twisted" their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens. The Court, thus, declared that "only errors [of judges] tainted with fraud, corruption, or malice are subject of disciplinary action" and these were not present in Justice del Castillos case; the failure was not attended by any malicious intent not to attribute the lifted passages to the foreign authors. Justice Maria Lourdes P. A. Sereno dissented from the Courts October 12, 2010 Decision based mainly on her disagreement with the majoritys declaration that malicious intent is required for a charge of plagiarism to prosper. On November 15, 2010, Attys. Roque and Bagares filed a motion for reconsideration of the Courts October 12, 2010 Decision. This motion was the subject of the Report/Resolution submitted to the Court for consideration. Incidentally, the same counsels filed an impeachment complaint for betrayal of public trust against Justice del Castillo with the House of Representatives on December 14, 2010. The Courts Action on the Motion for Reconsideration The Court referred the motion for reconsideration to the Ethics Committee and its Report recommended the dismissal of the motion for reconsideration. The Report differentiated academic writing from judicial writing, declaring that originality of ideas is not required of a judge writing decisions and resolving conflicts because he is bound by the doctrine of stare decisis the legal principle of determining points in litigation according to precedents. The Report likewise declared that the foreign authors, whose works were claimed to have been plagiarized, were not themselves the originators of the ideas cited in the Vinuya Decision. While the Vinuya Decision did not mention their names, it did attribute the passages to the original authors from whom these foreign authors borrowed the ideas. There was, thus, no intent on the part of Justice del Castillo to appropriate the ideas or to claim that these ideas originated from him; in short, he did not pass them off as his own. Justice Antonio T. Carpio dissented from the Report, based on two grounds: a. the Court has no jurisdiction over the administrative case as it involves a sitting Supreme Court Justice, for alleged misconduct committed in office; and

b. the judge, when writing judicial decisions, must comply with the law on copyright and respect the moral right of the author to have the work copied attributed to him. My Position I fully support the conclusions of the Ethics Committee. I likewise take exception to Justice Carpios Dissenting Opinion, specifically on his position that the Court has no jurisdiction to discipline its Members as the only means to discipline them is through impeachment proceedings that the Congress has the sole prerogative to undertake. Impeachment, he declares, functions as the equivalent of administrative disciplinary proceedings. Since the Congress is given the exclusive power to initiate,6 try, and decide7 all cases of impeachment, Justice Carpio posits that the Congress serves as the exclusive disciplining authority over all impeachable officers. He warns that for the Supreme Court to hear the present administrative disciplinary case would be to usurp this exclusive power of Congress. Jurisdiction of the Supreme Court to Discipline its Members A given in the discipline of Members of the Supreme Court is that they can only be "removed from office" through impeachment, as provided under Article XI of the Constitution, on the specified grounds of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of the public trust. The purpose of impeachment and the constitutional interest sought is to protect the people and the State from official delinquencies and other malfeasances.8 The Constitution, however, is not a single-purpose document that focuses on one interest alone to the exclusion of related interests; impeachment was never intended by the Constitution to be the totality of the administrative actions or remedies that the public or the Court may take against an erring Justice of the Court. Other related constitutional interests exist touching on other facets of the Judiciary and public accountability. They are, by themselves, equally compelling and demanding of recognition. Among the compelling interests that the Constitution zealously guards is judicial independence because it is basic to the meaning and purposes of the Judiciary. This interest permeates the provisions of Article VIII of the Constitution.9 Another interest to consider is the need for judicial integrity a term not expressly mentioned in the Article on the Judiciary (Article VIII), but is a basic concept found in Article XI (on Accountability of Public Officers) of the Constitution. It is important as this constitutional interest underlies the independent and responsible Judiciary that Article VIII establishes and protects. To be exact, it complements judicial independence as integrity and independence affect and support one another; only a Judiciary with integrity can be a truly independent Judiciary. Judicial integrity, too, directly relates to public trust and accountability that the Constitution seeks in the strongest terms. The same Article XI contains the impeachment provisions that provide for the removal of Justices of the Supreme Court. Notably, a common thread that runs through all the grounds for impeachment is the lack of integrity of the official impeached on these grounds. Still another unavoidable consideration on impeachment and its limited grounds is that it cannot, by itself, suffice to protect the people and foster the public accountability that the Constitution speaks of. While it is a powerful weapon in the arsenal of public accountability and integrity, it is not a complete weapon that can address and fully achieve its protective purposes. As discussed more fully below, not all complaints and grievances can be subsumed under the defined constitutional grounds for impeachment. Members of the Court can commit other offenses not covered by the impeachable offenses, for which other offenses they should equally be held accountable. These other offenses must of course be administratively addressed elsewhere if they cannot be similarly addressed

through impeachment; the people will not accept an interpretation that these are offenses that fell through the constitutional cracks and can no longer be administratively addressed. These considerations, taken together, dictate against the position of Justice Carpio that the Congress alone, through impeachment and to the exclusion of this Court, can proceed against the Members of the Court. Protection of Judicial Integrity For the purpose of preserving judicial integrity, the Supreme Court has as much (and in fact, should have more) interest as the public or as any other branch of the government in overseeing the conduct of members of the Judiciary, including its own Members. This is precisely the reason for the Judiciarys Code of Judicial Conduct and the lawyers Code of Professional Responsibility. Judicial integrity is not only a necessary element in the orderly and efficient administration of justice; it is almost literally the lifeblood of the Judiciary. A Judiciary, dissociated from integrity and the public trust that integrity brings, loses its rightful place in the constitutional democratic scheme that puts a premium on a reliable and respected third branch of government that would balance the powers of the other two branches. To ensure the maintenance and enhancement of judicial integrity, the Constitution has given the Judiciary, mainly through the Supreme Court, a variety of powers. These powers necessarily begin with the power to admit and to discipline members of the bar10 who are officers of the courts and who have the broadest frontline interaction with the courts and with the public. Courts in general have the power to cite for contempt11 that proceeds, not only from the need to maintain orderly procedures, but also from the need to protect judicial integrity in the course of the courts exercise of judicial power. The Supreme Court has the power to discipline and remove judges of lower courts.12 In this role, the Court hears administrative disciplinary cases against lower court judges for purposes of redress against erring judges and, more importantly, to "[preserve] the integrity of the judicial system and public confidence in the system and x x x [to safeguard] the bench and the public from those who are unfit."13 As concrete legal basis, the Supreme Court is expressly granted the general power of administrative supervision overall courts and the personnel thereof.14 By its plain terms, the power extends not only to the authority to supervise and discipline lower court judges but to exercise the same powers over the Members of the Court itself. This is the unavoidable meaning of this grant of authority if its main rationale i.e., to preserve judicial integrity is to be given full effect. The Supreme Court must ensure that the integrity of the whole Judiciary, its own Members included, is maintained as any taint on any part of the Judiciary necessarily taints the whole. To state the obvious, a taint in or misconduct by any Member of the Supreme Court even if only whispered about for lack of concrete evidence and patriotic whistleblowers carries greater adverse impact than a similar event elsewhere in the Judiciary. Independent of the grant of supervisory authority and at a more basic level, the Supreme Court cannot be expected to play its role in the constitutional democratic scheme solely on the basis of the Constitutions express grant of powers. Implied in these grants are the inherent powers that every entity endowed with life (even artificial life) and burdened with responsibilities can and must exercise if it is to survive. The Court cannot but have the right to defend itself to ensure that its integrity and that of the Judiciary it oversees are kept intact. This is particularly true when its integrity is attacked or placed at risk by its very own Members a situation that is not unknown in the history of the Court. To be sure, judicial integrity cannot be achieved if the Court can police the ranks of the lower court judges but not its own ranks. From this perspective view, it is unthinkable that the Supreme

Court can only watch helplessly for the reason that the power to act is granted only to Congress under the terms of the Constitution as its own Members prostitute its integrity as an institution. Impeachment Grounds are Limited That an impeachment partakes of the nature of an administrative disciplinary proceeding confined to the defined and limited grounds of "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, and betrayal of public trust"15 cannot be disputed. However, it cannot likewise be disputed that these grounds, as defined, refer only to those serious "offenses that strike at the very heart of the life of the nation."16 Thus, for "betrayal of public trust" to be a ground for impeachment, the "manner of commission must be of the same severity as treason and bribery."17 With respect to members of the High Court, impeachment is considered "as a response to serious misuse of judicial power"18 no less equivalent to treason or bribery. Directly implied from these established impeachment principles is that "removal from office (the imposable penalty upon impeachment and conviction) is not the price exacted for every incident of judicial misconduct."19 Otherwise stated, that impeachment administratively addresses only serious offenses committed by impeachable officers cannot imply that the Constitution condones misdemeanors and misconduct that are not of equal gravity. For, side by side with the constitutional provision on impeachment is the constitutional policy that "public office is a public trust" and that "public officers and employees must, at all times, be accountable to the people."20 Even impeachable officials, despite the nature and level of their positions, must be administratively accountable for misconduct and misdemeanors that are of lesser gravity than the defined impeachable offenses. Only this approach and reconciled reading with the provision on impeachment can give full effect to the constitutional policy of accountability. If this were not the case, then the public would be left with no effective administrative recourse against Supreme Court Justices committing less than grave misconduct. One American writer, Brent D. Ward, writes on this point that: It would be a serious weakness in our system to place systematic judicial misconduct beyond the reach of any remedy save impeachment. There are limits beyond which no person even a federal judge should be allowed to go with impunity. The courts themselves have the power and the duty to curtail the effect of repeated contrary and erratic actions of a judge that occur too frequently to permit effective appellate supervision in the run of cases. xxxx [The] Constitution does x x x shield [judges] from corrective action by other judges designed to ensure that the law is effectively administered. The appellate courts have the power to prevent action so obviously improper as to place it beyond established rules of law.21 Adverse Effects of Expansive View of Impeachment Grounds If impeachment were to be the only administrative proceeding to hold Justices of this Court accountable, then the grounds for impeachment may arguably carry a definition beyond the traditionally grave or serious character these offenses have always carried. An expanded definition, however, is no different from the remedy of burning a house to kill a rat. While such definition in the long run may kill more rats or assuredly do away with a particularly obnoxious rat, it will at the same time threaten and adversely affect a more valuable constitutional interest the independence of the Judiciary that allows magistrates to conscientiously undertake their duties, guided only by the dictates of the Constitution and the rule of law.

It needs no elaborate demonstration to show that the threat of impeachment for every perceived misconduct or misdemeanor would open Justices of the Court to harrassment. A naughty effect if administrative redress can only be secured from Congress to the exclusion of this Court under an expanded definition of impeachment grounds is to encourage every litigant with a perceived grievance against a Justice of this Court to run to his congressman for the filing of an impeachment complaint. Undoubtedly, this kind of scenario will be a continuing threat to judges and justices, with consequential adverse effects on the Judiciary, on inter-branch relationship, and on the respect the public may give the Judiciary, the Legislature, and even of the government itself. Worse, this kind of scenario may ultimately trivialize the impeachment process and is thus best avoided. An expansive interpretation of the grounds for impeachment must also affect Congress which acts on impeachment complaints but whose main task under our structure of government is to legislate, not to police the Supreme Court and other impeachable officers. To say the least, a deluge of impeachment complaints may prove to be impractical for Congress because impeachment is both an arduous and a time consumming process that will surely divert congressional time and other resources from the principal function of lawmaking. The US Practice In the United States (US) federal courts, "the impeachment process has not been the only check on federal judges [who are removable through impeachment] who may have abused their independence, or the only assurance of their accountability."22 The US National Commission on Judicial Discipline and Removal has posited that there must be "a power in the judiciary to deal with certain kinds of misconduct [as this will further] both the smooth functioning of the judicial branch and the broad goal judicial independence." Along this line, the US Congress created a system enforcing an internal judicial self-discipline through the judicial councils under their Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (the US 1980 Act). The judicial council (composed of the federal judges within a specific judicial circuit) is considered as a "formal and credible supplement to the impeachment process for resolving complaint of misconduct or disability against federal judges."23The judicial council of a federal circuit, through the chief judge, is authorized to receive and to act on complaints about the conduct of judges who are removable only through impeachment. If there is merit to a complaint, the judicial council can "take appropriate action, which may include censure, reprimand, temporary suspension, and transfer of cases, but not removal from office. If the judicial council believes that it has uncovered grounds for impeachment, the council is empowered to report its findings to the Judicial Conference of the United States, which after an investigation, may report its findings to the House of Representatives."24 Arguably, the existence of a judicial council as an additional or supplemental check on US federal judges is statutory and no equivalent statute has been enacted in our jurisdiction specifically establishing in our Supreme Court a system of internal judicial self-discipline. This argument, however, loses sight of the constitutional authority of our Supreme Court to govern the conduct of its members under its power of general administrative supervision over all courts a power that the Philippine Constitution expressly grants to our Supreme Court to the exclusion of remedies outside of the Judiciary except only for impeachment. Interestingly, even in the US, the view has been taken that the enactment of a statute conferring disciplinary power to the Court over its own members may be unnecessary as the Supreme Court itself may assume this power. This is implied from the following recommendation of the US National Commission on Judicial Discipline and Removal which states:

[I]t may be in the [US Supreme] Courts best interest, as contributing to the publics perception of accountability, to devise and adopt some type of formal procedure for the receipt and disposition of conduct and disability complaints. The Commission recommends that the Supreme Court may wish to consider the adoption of policies and procedures for the filing and disposition fo complaints alleging misconduct against Justices of the Supreme Court.25 Note should be taken in these regards that the Philippine Supreme Court has already put in place various Codes governing ethical rules for the bar and for the Judiciary. The Code of Judicial Conduct applies to all members of the Judiciary, including the Members of the Supreme Court. The Code of Professional Responsibility applies to all lawyers, thus, necessarily to Members of the Court for whom membership in the bar is an essential qualification. The Court as well has codified the Internal Rules of the Supreme Court. A Rule on Whistleblowing is presently under consideration by the Court en banc. What is crucial in the establishment of the judicial council system in the US is the implication that no inherent incompatibility exists between the existence of Congress power to impeach and the Supreme Courts power to discipline its own members; the two powers can co-exist and, in fact, even supplement each other. The constitutionality of recognizing disciplinary power in the courts over their own impeachable members (as provided in the US 1980 Act), vis--vis the Congress power to remove the same officials by impeachment, has been addressed before the US Court of Appeals in the case of McBryde v. Commission to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the US26: Judge McBryde frames his separation of powers claim as whether the Constitution "allocates the power to discipline federal judges and, if so, to which branches of government." Finding that it allocates the power to Congress in the form of impeachment, he concludes that it excludes all other forms of discipline. But Judge McBryde's attempt to fudge the distinction between impeachment and discipline doesn't work. The Constitution limits judgments for impeachment to removal from office and disqualification to hold office. It makes no mention of discipline generally. The Supreme Court recently observed that it accepted the proposition that "[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode." But application of the maxim depends on the "thing to be done." Here the thing to be done by impeachment is removal and disqualification, not "discipline" of any sort. Thus, when the conduct of a member of the Supreme Court is improper but is not of such gravity to be considered as an impeachable offense, the Court to protect its integrity may address the misconduct through an administrative disciplinary case against the erring member. Conclusion: Court can hear the case against Justice del Castillo as an Administrative Matter What the impeachment provisions of the Constitution guarantee is simply the right to be removed from office only through the process of impeachment and not by any other means; it does not preclude the imposition of disciplinary sanctions short of removal on the impeachable official. Impeachment is the sole means of removal, but it is certainly not the sole means of disciplining Members of the Supreme Court or, for that matter, public officials removable by impeachment. Accordingly, I believe that the Court has the authority to hear the present administrative disciplinary case against Associate Justice Mariano del Castillo; in case of a finding of misconduct, it can impose penalties that are not the functional equivalent of removal or dismissal from service. If, in the exercise of its prerogative as interpreter of the Constitution, it determines that an act complained of

falls within the defined grounds for impeachment, then the Court should say so and forthwith forward its recommendations to Congress as the body constitutionally mandated to act in impeachment cases. Courts Interpretation of Plagiarism - limited to its Concept as an Ethical violation of Members of the Judiciary. The dissatisfaction with the Courts October 12, 2010 Decision (resolving the plagiarism charge against Justice del Castillo or the "plagiarism Decision") primarily lies with the Courts declaration that malicious intent is a necessary element in committing plagiarism. In the plagiarism Decision, the Court said: [P]lagiarism presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own. Why we deemed malicious intent as a necessary element for judicial plagiarism can be explained by our repeated pronouncement that: not every error or mistake committed by judges in the performance of their official duties renders them administratively liable. In the absence of fraud, dishonesty or deliberate intent to do an injustice, acts done in their official capacity, even though erroneous, do not always constitute misconduct. Only errors that are tainted with fraud, corruption or malice may be the subject of disciplinary action. For administrative liability to attach, respondent must be shown to have been moved by bad faith, dishonesty, hatred or some other motive. Indeed, judges may not be held administratively liable for any of their official acts, no matter how erroneous, as long as they acted in good faith.27 The term plagiarism does not have a precise statutory definition as it is not a matter covered by present Philippine statutes.28 What the Intellectual Property Code (Republic Act 8283)29 defines and punishes is "copyright infringement." However, these terms are not legally interchangeable. Laurie Stearns, copyright lawyer and author of the article "Copy Wrong: Plagiarism, Process, Property, and the Law" aptly observes the distinctions between the two in this wise: Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily plagiarism. The two concepts diverge with respect to three main aspects of the offense: copying, attribution and intent. In some ways the concept of plagiarism broader than infringement, in that it can include the copying of ideas or of expression not protected by copyright, that would not constitute infringement and it can include copying of small amounts of material that would be disregarded under copyright law. In other ways the concept of infringement is broader, in that it can include both properly attributed copying and unintentional copying that would be excused from being called plagiarism. The divergence between plagiarisms popular definition and copyrights statutory framework suggests an essential contradiction between what is at stake in plagiarism the creative process and what is at stake in copyright infringement the creative result.30 Separately from these distinctions, the matter before the Court is Justice del Castillos alleged plagiarism or failure to make attributions as an ethical violation, not a copyright violation under the Intellectual Property Code. Given these distinctions, I see no reason to quibble over the definition of plagiarism a term that, in the absence of any statutory limitation, the Court can define and interpret for purposes of its administrative authority over all courts and the personnel thereof.

From the point of view of ethical rules, what are important are the intent in undertaking an act and the concepts of integrity, propriety, honesty and impartiality for purposes of dispensing justice by an independent Judiciary. It is in this sense, and in light of the nature of the present case as an administrative disciplinary charge against a Member of this Court, that the pronouncement of this Court on plagiarism and on the merits of the ethical charge should be understood. In this light, I find it misplaced for Justice Sereno to describe the Courts Decision as: [creating] unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision. It has also undermined the protection of copyrighted work by making available to plagiarists "lack of malicious intent" as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. xxxx Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate and that therefore there was no plagiarism lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.31 When the Supreme Court acts on complaints against judges under its supervision and control, it acts as an administrator imposing discipline and not as a court passing upon justiciable controversies.32 It is precisely for this reason that disciplinary cases are docketed as "Administrative Matters" or "A.M."33 Hence, any interpretation by the Court of "plagiarism" is limited to this context and cannot be held to bind the academe in undertaking its educational functions, particularly its own power to define plagiarism in the educational context. It likewise cannot bind Congress in its role as the sole authority to determine what constitutes an impeachable offense, subject to what I stated above on the established scope of impeachable offenses and the power of the Court to act in grave abuse of discretion situations under the Constitution. Specifically, a finding by this Court that plagiarism was or was not committed cannot preclude Congress from determining whether the failure or omission to make an attribution, intentionally or unintentionally, amounts to a "betrayal of public trust." For these reasons, I support the conclusion of the Ethics and Ethical Standards Committee that Justice Mariano C. del Castillos attribution lapses did not involve any ethical violation. I vote for the approval of the Committees Report and for the denial of the petitioners Motion for Reconsideration. ARTURO D. BRION Associate Justice

Footnotes
1

A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent. Enforcing Erga Omnes Obligations in International Law by Christian J. Tams.

Breaking the Silence: On Rape as an International Crime by Mark Ellis.

Petitioners Vinuya, et al.s Supplemental Motion for Reconsideration dated July 18, 2010, p. 2.
4 5

Specifically, the Court referred to the article A Fiduciary Theory of Jus Cogens written by Criddle-Decent and Fox.
6

CONSTITUTION, Article XI, Section 3(1). The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
7

Id., Section 3(6). The Senate shall have the sole power to try and decide all cases of impeachment.
8

See De Leon, Philippine Constitutional Law, Vol. II, 2004 Ed., p. 831.

See, among others, security of tenure at Section 1; fiscal autonomy under Section 2; defined jurisdiction that Congress cannot touch without concurrence from the Supreme Court; administrative supervision over all courts under Section 6; a Judicial and Bar Council that renders recourse to the Commission on Appointments unnecessary; and the guarantee of strict focus on judicial duties under Section 12.
10

CONSTITUTION, Article VIII, Section 5(5); RULES OF COURT, Rules 138 and 139-B. RULES OF COURT, Rule 71. CONSTITUTION, Article VIII, Section 11; RULES OF COURT, Rule 140.

11

12

13

Cynthia Gray, A Study of State Judicial Discipline Sanctions, American Judicature Society (2002), at <www.ajs.org/ethics/pdfs/Sanctions.pdf>, last visited February 9, 2011. The article also cites other reasons: impressing upon the judge the severity and significance of the misconduct; deterring similar conduct by the judge and others; reassuring the public that judicial misconduct is not tolerated or condoned; and fostering public confidence in the selfpolicing system.
14

See Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 ed.), p. 1012, and Hector S. De Leon, Philippine Constitutional Law: Principles and Cases, Volume 2 (2004 ed.), p. 595.
15

CONSTITUTION, Article XI, Section 2. See Bernas, supra, note 14, p. 1113. Ibid.

16

17

18

Robert W. Kastenmeier, Report of the National Commission on Judicial Discipline and Removal (March 1994), 152 F.R.D. 265, at <judicial-discipline-reform.org/judicialcomplaints/1993-Report-Removal.pdf>, last visited on February 9, 2011.
19

Cynthia Gray, supra note 13, citing In re Lowery, 999 S.W.2d 639, 661 (Special Court of Review Appointed by Texas Supreme Court, 1998).

20

CONSTITUTION, Article XI, Section 1.

21

Brent D. Ward, Can the Federal Courts Keep Order in Their Own House? Appellate Supervision through Mandamus and Orders of Judicial Councils, 233 Bringham Young University Law Review 233, 237 and 253 (1980), at <heinonline.org/HOL/LandingPage?collection=journals&handle= hein.journals/byulr1980&div=177ID=&page=>, last visited on February 9, 2011.
22

Robert W. Kastenmeier, supra note 18. Ibid.

23

24

Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Texas Law Review 1, 73-74 (November 1989).
25

Robert W. Kastenmeier, supra note 18. 264 F.3d 52 (2001). Cruz v. Iturralde, A.M. RTJ No. 03-1775, April 30, 2003, 402 SCRA 65.

26

27

28

George, Joyce J. "Judicial Opinion Writing Handbook." 5th edition. William S. Hein & Co., Inc., 2007, page 715, defines plagiarism as "the intentional representation of another persons words, thoughts or ideas as ones own without giving attribution."
29

AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES
30

Stearns, Laurie. "Copy Wrong: Plagiarism, Process, Property and the Law." Perspectives on Plagiarism and Intellectual Property in a Postmodern World. Ed. Lise Buranen and Alice M. Roy. Albany, New York State University of New York Press. 1999. 5-6.
31

Dissenting Opinion of Justice Sereno in the Plagiarism decision. Icasiano v. Sandiganbayan, G.R. No. 95642, May 28, 1992, 209 SCRA 377.

32

33

See: Rule 4, Internal Rules of the Supreme Court, in relation with Section 4, Rule 6 on Docket Number and Entry in Logbook. Administrative cases are not listed as G.R. (General Register) cases as they are not acted upon in the exercise of the Courts judicial function.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION ABAD, J.:

I fully concur in the majority opinion and would like to react to the separate dissenting opinions of Justices Antonio T. Carpio and Maria Lourdes P.A. Sereno. Justice Carpio has again graced the Courts rulings in this case with his typically incisive dissenting opinion. Still, I cannot agree with his views. He asserts that the sole disciplining authority of all impeachable officers, including the Justices of this Court, lies in Congress. This is quite true but only with respect to impeachable offenses that consist in "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust,"1 all offenses that warrant the removal of such officers and disqualification for holding any office in the government.2 The Supreme Court has no intention of exercising the power of impeachment that belongs to Congress alone. Certainly, however, the Supreme Court has the administrative authority to investigate and discipline its members for official infractions that do not constitute impeachable offenses. This is a consequence of the Courts Constitutional power of "administrative supervision over all courts and the personnel thereof."3 When the Court decided earlier the plagiarism charge filed against Justice Mariano Del Castillo by the petitioners in Vinuya, it was under a belief that "plagiarism," which is not even a statutory offense, is an administrative infraction. The petitioners in that case did not themselves object to the proceedings conducted by the Courts Ethics Committee. Subsequently, a complaint for impeachment was filed against Justice Del Castillo before the House of Representatives based on the same charge of plagiarism. The Court cannot do anything about that but it is not the Court, denying the motion for reconsideration filed in the present case, which will provoke a constitutional crisis; if ever, it is the House of Representatives that will do so, seeing that the Court has already acted on such a charge under an honest belief that plagiarism is an administrative rather than an impeachable offense. Whether plagiarism is an administrative or an impeachable offense need not be decided by the Court in this case since no actual dispute has arisen between Congress and the Court regarding it. As for the alleged violation of the copyright law in this case, it should be sufficient to point out that no such charge has been lodged against Justice Del Castillo. What is more, the Court has no original jurisdiction over copyright law violations. I reserve in the appropriate case my view on whether or not lifting from copyrighted articles, without attribution, solely for the purpose of rendering a decision, constitutes violation of the copyright law. Justice Sereno castigates the majority in the Court for lowering the standards for judicial scholarship, negating the educative and moral directional value in the writing and publishing of decisions, bending over backwards to deny the objective existence of gross plagiarism, and condoning dishonesty in the exercise of a function central to the role of the courts. But our courts are in the business, not of "judicial scholarship," but of deciding fairly and honestly the disputes before them, using precedents and legal literature that, according to American scholars, belong to the public domain. If this is not honest work for a judge, I do not know what is. And Justice Sereno has no right to preach at the expense of the majority about "educative and moral directional value" in writing published articles. For one thing, her standards are obviously for work done in the academe, not for the judge plodding at his desk to perform government work. For another, I note that on occasions she has breached those very standards, lifting from works of others without proper attribution.

Take Justice Serenos article, Toward the Formulation of a Philippine Position in Resolving Trade and Investment Disputes in APEC."4 Under the section subtitled "The WTO Dispute Settlement Mechanism," she said in the footnote that "[t]his section is drawn from Article XX and XXIII of the GATT 1994, Understanding on Dispute Settlement, and Working Procedures." To me, this means that in writing the section, she drew ideas from these four GATT issuances. I am reproducing below the beginning portions of Justice Serenos work that are relevant to this discussion. I underline what she copied verbatim from Annex 2 of the General Agreement on Tariffs and Trade (GATT) 1994, entitled "Understanding on Rules and Procedures Governing the Settlement of Disputes," or "Understanding on Dispute Settlement" for short. The WTO Dispute Settlement Mechanism Dispute settlement under the WTO mechanism is the prompt settlement of situations in which a member considers that any benefit accruing to it directly or indirectly under the WTO Agreement is being impaired by measures taken by another member. A dispute settlement mechanism aims to secure a positive solution to a dispute. Thus, a solution mutually acceptable to the parties to a dispute is preferred. However, in the absence of a mutually agreed solution, the first objective is usually to secure the withdrawal of measures concerned. A measure is any internal act, whether a law, an administrative action, or a judicial decision of a member. The DSB is the WTO organ that is mandated to administer the rules and procedures that govern the settlement of disputes. It is made up of the representatives of all the members of the WTO. Each member is entitled to one vote. The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate Body reports, (c) to maintain surveillance of the implementation of rulings and recommendations, and (d) to authorize the suspension of concessions and other obligations. It is understood that requests for conciliation and the use of the dispute settlement procedures should not be viewed as contentious acts. Members engage in this procedure to resolve disputes. [copied] If a measure adopted by a country (A) within its territory impinges on, for example, the exports of another country (B), the first step in dispute settlement is the filing of a request for consultation by the complainant. In this case, B is the complainant. If B requests consultation with A, then A must consider the complaint of B. A must reply to the request within 10 days after its receipt and enter into consultations with B in good faith within a period of 30 days from the date of the request, with a view to reaching a mutually satisfactory solution. If A does not respond within 10 days, does not enter into consultations within a period of 30 days from the filing of the request, and if the consultation fails to settle a dispute within 60 days after the request for consultation, then B may proceed to request the establishment of a panel. Good offices, conciliation, and mediation may be requested at any time by any party to a dispute. They may begin and be terminated at any time. Once they are terminated, the complaining party can then request the establishment of a panel. If the complaining party so requests, a panel may be established by the DSB. The function of the panel is to assist the DSB in discharging its responsibilities. Accordingly, a panel should make an objective assessment of the matter before it, including the facts of the case and the applicability and conformity of the measure with the relevant agreements. It should also make other findings that will assist the DSB in making the recommendations or in giving the rulings provided for in the covered

agreements, besides consulting regularly with the parties to the dispute and giving them adequate opportunity to develop a mutually satisfactory solution. [Copied] The request for the establishment of a panel should be made in writing, indicate whether consultations were held, identify the specific measures at issue, and provide a brief summary of the legal basis of the complaint. [Copied] xxxx Notably, Justice Sereno began her above discussion with ideas presumably from her four sources, which she put together and fashioned into her own sentences and paragraphs. The ideas were from GATT but the presentation was original Sereno. Down the line, however, without introduction or preamble, she copied verbatim into her work portions from Understanding on Dispute Settlement, without citing this specific source. More, she did not use quotation marks to identify the copied portions. She thus made ordinary readers like me believe that she also crafted those portions. To borrow a word from the civil code, she "co-mingled" the work of others with hers, erasing the identity of the lifted work. Justice Serenos explanation is that, since she was drawing from the rules embodied in GATTs Understanding on Dispute Settlement, she did not have to make attributions to those rules at each turn of her writing. She may be correct if she in fact properly cited those rules the first time she copied from it and, further, indicated a clear intent to do further copying down the line. But she did not. Properly, she could have written: xxxx The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate Body reports, (c) to maintain surveillance of the implementation of rulings and recommendations, and (d) to authorize the suspension of concessions and other obligations. GATTs Understanding on Dispute Settlement has a lot to say about the subject and some are mentioned here. For one it says, "It is understood that requests for conciliation and the use of the dispute settlement procedures should not be as contentious acts. Members engage in procedure to resolve disputes." xxxx Further, she did not identify the portions she copied verbatim in order to set them apart from her own writing. Under the rule that she foists on Justice Del Castillo, quotation marks must be used whenever verbatim quotes are made.5This requirement is all the more important since, unlike domestic rules, the rules of GATT are unfamiliar terrain to most readers. Thus, at the next turn, she could have at least enclosed in quotation marks the other portions she copied verbatim from her source like this: If the complaining party so requests, a panel may be established by the DSB. "The function of the panel is to assist the DSB in discharging its responsibilities. Accordingly, a panel should make an objective assessment of the matter before it, including the facts of the case and the applicability and conformity of the measure with the relevant agreements. It should also make other findings that will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements consul regularly with the parties to the dispute and giving them adequate opportunity to develop a mutually satisfactory solution."

"The request for the establishment of a panel should be made in writing, indicate whether consultations were held, identify the specific measures at issue, and provide a brief summary of the legal basis of the complaint." What is more, learned lawyers would always set apart the laws or rules that they cite or invoke in their work since these are expressions of a higher grade than their comments or opinions. A lawyers opinion can persuade but a rule or a law is binding. I have yet to see a Supreme Court decision that copies verbatim a specific rule or law, which it invokes to support such decision, without distinctly calling it what it is or citing its source. Below is the rest of the verbatim copying that she made from Understanding on Dispute Settlement in the section she wrote without attribution or quotation marks. Original work - GATT Annex 2, Understanding on Dispute Settlement Following the expiration of the set period of time for receipt of comments from the parties to the dispute, the panel shall issue an interim report to the parties, including both the descriptive sections and the panels findings and conclusions. Within a period of time set by the panel, a party may submit a written request for the panel to review precise aspects of the interim report prior to circulation of the final report to the Members. At the request of a party, the panel shall hold a further meeting with the parties on the issues identified in the written comments. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the Members. [Article 15.2, GATT Annex 2] When a panel or the AB concludes that a measure is inconsistent with a covered agreement, it shall recommend that the member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or AB may suggest ways by which the member concerned could implement the recommendations. (page 8) Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations. [Article 19.1, GATT Annex 2] The DSB shall adopt the report within 60 Within 60 days after the date of circulation days of the issuance of a panel report to the of a panel report to the Members, the report

Sereno, J. After receipt of comments from the parties, the panel shall issue an interim report to them, including both the descriptive sections and the panels findings and conclusions. The parties may submit written requests for the panel to review precise aspects of the interim report for which the panel shall meet with the parties. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the members. (page 7)

members, unless one of the parties to the dispute formally notifies the DSB of its decision to appeal, or the DSB decides by consensus not to adopt the report. If the panel report is on appeal, the panel report shall not be considered for adoption by the DSB until the completion of the appeal. (page 7-8)

shall be adopted at a DSB meeting unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal. [Article 16.4, GATT Annex 2]

It may uphold, modify, or reverse the legal findings and conclusions of the panel. ( page 8)

The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel. [Article 17.13, GATT Annex 2]

Note that the AB reviews only issues of law An appeal shall be limited to issues of law covered in the panel report and legal covered in the panel report and legal interpretation developed by the panel. (page interpretations developed by the panel. 8) [Article 17.6, GATT Annex 2] The DSB shall keep under surveillance the implementation of adopted recommendation or rulings. Any member may raise the issue of implementation of the recommendations or rulings at the DSB anytime following their adoption. (page 8) The DSB shall keep under surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the recommendations or rulings may be raised at the DSB by any Member at any time following their adoption. [Article 21.6, GATT Annex 2] Going to another item in the same article, Justice Sereno copies significant lines from Oppenheims Treatise without making an attribution to that work. Sereno, J. In mediation, the third party facilitates the negotiations between the parties concerned. It involves direct conduct of negotiations between the parties at issue on the basis of proposals made by the mediator. On the other hand, good offices are a friendly offer by a third party, which tries to induce disputants to negotiate among themselves. Such efforts mayconsist of various kinds of actions tending to call negotiations between conflicting states into Original work Oppenheims Treatise The difference between [good offices and mediation] is that, whereas good offices consist in various kinds of action tending to call negotiations between the conflicting States into existence, mediation consists in a direct conduct of negotiations between the differing parties on the basis of proposals made by the mediator. [Oppenheim, International Law, A Treatise volume 2 page 11 (1920)]

existence. (page 11) Justice Sereno explains that "trite, common, standard statement[s]" like the ones she copied from Oppenheim has "nothing original at all about [them]" and need no citation or quotation marks. This is true. Indeed, the Court acknowledged in its October 12, 2010 decision that no plagiarism could be committed respecting "common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm." But I cite the above because Justice Sereno would not grant to Justice Del Castillo the liberty to use common definitions and terms in his ponencia without the correct attribution. In the original draft of this concurring opinion that I circulated among the members of the Court, I mentioned an article published in 2007 that Justice Sereno wrote with two others entitled Justice and the Cost of Doing Business.6 I found that a portion of this article appeared to have been reproduced without attribution from a 2005 publication, the Asian Development Bank Country Governance Assessment (Philippines) 2005.7 Justice Sereno has since explained to my satisfaction that such portion came from the three co-authors earlier 2001 report submitted to the World Bank (WB). I am dropping it as a case of omission of attribution. Parenthetically, however, in the academic model, "dual and overlapping submissions" is a thesis writers sin. It simply means that the same academic work is submitted to gain credit for more than one academic course.8 In the publishing world, while not prohibited across the board, law journals and reviews frown upon authors who submit manuscripts which have been previously published elsewhere, since the purpose of publication is the circulation and distribution of original scholarship and the practice would permit the author to be credited twice for the same work. Notably, from the papers she furnished the members of the Court, it would seem that the WB Danish Trust Fund commissioned and paid for the 2001 study that Justice Sereno and her co-authors undertook. Indeed, the cover page of the WB paper she also provided shows that it was part of the "Document of the World Bank." I would assume, however, that Justice Sereno obtained WB authorization for the subsequent publication of the report in 2007. Next, in her memorandum for petitioners-intervenors Franklin M. Drilon and Adel A. Tamano in Province of North Cotabato, et al. v. Government of the Republic of the Philippines Peace and Panel on Ancestral Domain, et al.,9Justice Sereno lifted a famous phrase from the United States case of Baker v. Carr, 169 U.S. 180, without making attribution to her source. J. Sereno Second, there is no lack of a judicially discoverable and manageable standard for resolving the question, nor impossibility of deciding the question without an initial policy determination of a kind clearly for non-judicial discretion. Original Work Baker v. Carr Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion x x x [Baker v. Carr, 169 U.S. 186]

Justice Sereno explains that, since she earlier cited Baker v. Carr in her memorandum, it would be utterly pointless to require her to repeat her citation as often as excerpts from the case appear down the line. It is not quite pointless because one who copies from the work of another has an obligation, she insists in her dissent, to make an attribution to his source. Otherwise, a writer can simply say at the start of his article that he is copying from a list of named cases and it would be up to the reader to guess where the copied portions are located in that article. An explanation like this from an academician is disheartening. In another article, Uncertainties Beyond The Horizon: The Metamorphosis of the WTO Investment Framework In The Philippine Setting,10 Justice Sereno also copied from the World Trade Organization fact sheet on line (prepared by the United States Department of Agriculture) without using quotation marks, and made the material appear to be her own original analysis. Thus: J. Sereno The World Trade Organization (WTO) was established on January 1, 1995. It is a multilateral institution charged with administering rules for trade among member countries. The WTO functions as the principal international body concerned with multilateral negotiations on the reduction of trade barriers and other measures that distort competition. The WTO also serves as a platform for countries to raise their concerns regarding the trade policies of their trading partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development. Original Work WTO Factsheet The World Trade Organization (WTO), established on January 1, 1995, is a multilateral institution charged with administering rules for trade among member countries. x x x The WTO functions as the principal international body concerned with multilateral negotiations on the reduction of trade barriers and other measures that distort competition. The WTO also serves as a platform for countries to raise their concerns regarding the trade policies of their trading partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development. [WTO FACTSHEET http://www.fas.usda. gov/info/factsheets/wto.html (last accessed February 13, 2008)]

Here again, Justice Sereno ignores her unbendable rule that one commits plagiarism by his "[f]ailure to use quotation marks to indicate that the entire paragraph in the body of the decisionwas not the ponentes original paragraph, but was lifted verbatim from [anothers] work." In his book entitled Economic Analysis of Law (2nd edition, 1977), Judge Richard A. Posner wrote: xxx Hence, settlement negotiations will fail, and litigation ensue, only if the minimum price that the plaintiff is willing to accept in compromise of his claim is greater than the maximum price the defendant is willing to pay in satisfaction of that claim. (At p. 435) Justice Sereno copied the above verbatim in her article entitled Lawyers Behavior and Judicial Decision-Making11published in the Philippine Law Journal, without quotation marks or attribution to Judge Posner. Thus, she wrote: xxx [S]ettlement negotiations will fail and litigation will ensue if the minimum price that plaintiff is willing to accept in compromise of his claim is greater than the maximum price that the defendant is willing to pay in satisfaction of that claim. (At page 483)

In other sections of the same article that Justice Sereno wrote, she either copied verbatim from Judge Posner or mimicked his ideas without attributing these to him. Thus: Judge Posner wrote -A somewhat more plausible case can be made that judges might slant their decisions in favour of powerful interest groups in order to increase the prospects of promotion to higher office, judicial or otherwise. xxx (At p. 416) Justice Sereno mimicked -The third is that the judge maximizes the prospects of his promotion to a higher office by slanting his decisions in favor of powerful interest groups. (page 489) Judge Posner wrote -Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and non-monetary elements xxx. (At p. 415) Justice Sereno mimicked -In understanding judicial behaviour we have to assume that judges like all economic actors maximize a utility function. This function in all probability includes material as well as non-material factors. xxx (At page 489) Judge Posner wrote -[T]he rules of the judicial process have been carefully designed both to prevent the judge from receiving a monetary payoff from deciding a particular case one way or the other and to minimize the influence of politically effective interest groups in his decisions. [At p. 415] Justice Sereno mimicked -The first is that the American judicial system have rules designed to minimize the possibilities of a judge maximizing his financial interest by receiving a bribe from a litigant or from acceding to a politically powerful interest group by making the rules work in such a manner as to create disincentives for the judge ruling in such a manner (page 489) Judge Posner wrote -It is often argued, for example, that the judge who owns land will decide in favor of landowners, the judge who walks to work will be in favour of pedestrians. Posner, 415] Justice Sereno mimicked -The second proceeding from the first is that the judge maximizes the interest of the group to which he belongs. If he belongs to the landowning class he will generally favor landowners and if he walks to work, he will generally favor pedestrians. (page 489) Judge Posner wrote --

[J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416] Justice Sereno mimicked-The last is that judges maximize their influence on society by imposing their values, tastes and preferences thereon. (page 489) Using the severe standards she sets for Justice Del Castillo in Vinuya, i.e., "objective existence of plagiarism," I am afraid that any explanation of good faith or lack of malicious intent on Justice Serenos part in copying without proper attribution from the work of Judge Posner would not be acceptable. Still I can concede that Justice Sereno may not have intended to plagiarize the work of others even if she copied verbatim from them without proper attribution or quotation marks. Her above articles were, taken as whole, essentially hers. I regret, however, that since she wrote them as an academician bound by the high standards that she and the University of the Philippines where she taught espouse, she may have failed, borrowing her own phrase, to set the correct "educative and moral directional value" for the young. Justice Del Castillo, who did not write as an academician but as a judge, is at least entitled to the liberties granted judges in writing decisions. I vote to DENY the motion for reconsideration filed in this case. ROBERTO A. ABAD Associate Justice

Footnotes
1

Section 2, Article XI, 1987 Constitution of the Philippines. Section 3 (7), id. Section 6, Article VIII, 1987 Constitution of the Philippines.

Sereno, Toward the Formulation of a Philippine Position in Resolving Trade and Investment Disputes in APEC, Philippine APEC Study Center Network (PASCN) Discussion Paper No. 2001-15 (2001). [available online athttp://pascn.pids.gov.ph/DiscList/d01/s01-15.pdf]
5

Harvey writes that "[w]ords you use verbatim from a source must be put in quotation marks, even if you use only two or three words; its not enough simply to cite." Harvey, Writing with Sources: A Guide for Harvard Students 10 (2008).
6

Ma Lourdes A. Sereno, Emmanuel S. De Dios, and Joseph J. Capuno, Justice and the Cost of Doing Business: The Philippines (2007) published by the Philippine Institute for Development Studies.

online at http://www.econ.upd.ude.ph/respub/dp/pdf/DP2007-11.pdf or http://publications.pids.gov.ph/details.phtml?pid=4180

7

At p. 103. The Harvard Plagiarism Policy states: It is the expectation of every course that all work submitted to it will have been done solely for that course. If the same or similar work is to be submitted to any other course, the prior written permission of the instructor must be obtained. If the same or similar work is to be submitted to more than one course during the same term, the prior written permission of all instructors involved must be obtained. A student submits the same or similar work to more than one course without such prior permission is subject to disciplinary action, and ordinarily will be required to withdraw from the College. (available online at http://isites.harvard.edu/icb/icb.do?keyword=k70847&pageid=icb.page355322)

G.R. Nos. 183591, 183752, 183893, 183951, September 18, 2008.

10

Sereno, Uncertainties Beyond The Horizon: The Metamorphosis Of The WTO Investment Framework In The Philippine Setting, 52 UST LAW REVIEW 259 (2007-2008). Available online at http:// ustlawreview.com/pdf/vol.LII/Uncertainties_ Beyond_the_Horizon.pdf Sereno, Lawyers Behavior and Judicial Decision-Making, 70 Phil. L. J. 472-492 (vol 4, June 1996) [available online at http://law.upd.edu.ph/plj/ images/files/PLJ%20volume% 2070/PLJ%20 volume%2070%20number %204%20-02-%20Ma.%20Lourdes%20A. %20Sereno%20-%20Lawyers%20 Behavior.pdf]
11

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 10-7-17-SC February 8, 2011

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO. RESOLUTION PER CURIAM: Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano Del Castillo in connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo.1 Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. This claim is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term. Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is "to steal and pass off as ones own" the ideas or words of another. Stealing implies malicious taking. Blacks Law Dictionary, the worlds leading English law dictionary quoted by the Court in its decision, defines plagiarism as the "deliberate and knowing presentation of another person's original ideas or creative expressions as ones own."2 The presentation of another persons ideas as ones own must be deliberate or premeditateda taking with ill intent. There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident or in good faith. Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of Academic Integrity ordains that "plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to ones self what is not ones work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Students who plead ignorance or appeal to lack of malice are not excused."3

But the Courts decision in the present case does not set aside such norm. The decision makes this clear, thus: To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writers thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.4 Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodying results of original research, substantiating a specific view.5 This must be so since the writing is intended to earn for the student an academic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations, and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy. But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism. Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certain schools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its face the students work shows as a whole that he has but committed an obvious mistake or a clerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his diploma. In contrast, decisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes is a service rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of flesh and blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interest of society in written decisions is not that they are originally crafted but that they are fair and correct in the context of the particular disputes involved. Justice, not originality, form, and style, is the object of every decision of a court of law. There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are "to stand by precedent and not to disturb settled point." Once the Court has "laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same."6 And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators. Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include judges) write about the law, they effectively place their

ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability. Thus: The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone.7 The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook: A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a partys brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism.8 If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciarys more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism. This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the judges creativity. It is hereactually the substance of their decisionsthat their genius, originality, and honest labor can be found, of which they should be proud. In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. He identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the law relevant to their resolution. It was here that he drew materials from various sources, including the three foreign authors cited in the charges against him. He compared the divergent views these present as they developed in history. He then explained why the Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was original. He had but done an honest work.

The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done. This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice. As Duncan Webb said: In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole sections of a judges words to lend weight to a particular point either with or without attribution. The words of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this place is given to Halsburys Laws of England which is widely considered authoritative. A lawyer can do little better than to frame an argument or claim to fit with the articulation of the law in Halsburys. While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution. xxxx The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy.9 The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losing party. But it is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school of law, have unfairly maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to attribute lifted passages from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism as the world in general knows it. True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law.
1aw phi 1

Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The authors concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in the Vinuya decision

still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his own. With our ruling, the Court need not dwell long on petitioners allegations that Justice Del Castillo had also committed plagiarism in writing for the Court his decision in another case, Ang Ladlad v. Commission on Elections.10 Petitioners are nit-picking. Upon close examination and as Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact made attributions to passages in such decision that he borrowed from his sources although they at times suffered in formatting lapses. Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines for leave to file and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyos claim of other instances of alleged plagiarism in the Vinuya decision. ACCORDINGLY, the Court DENIES petitioners motion for reconsideration for lack of merit. SO ORDERED. RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice MARIANO C. DEL CASTILLO Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice LUCAS P. BERSAMIN Associate Justice ROBERTO A. ABAD Associate Justice JOSE PORTUGAL PEREZ Associate Justice MARIA LOURDES P. A. SERENO Associate Justice

Footnotes
1

April 28, 2010.

Blacks Law Dictionary (8th Edition, 2004). Available at http://www.admu.edu.ph/index.php?p=120&type=2&sec=25&aid=9149.

In the Matter of the Charges of Plagiarism, etc., Against Associate Justice Mariano C. Del Castillo, A.M. No. 10-7-17-SC, October 12, 2010.
5

Websters Third New International Dictionary, p. 2374. Blacks Law Dictionary (6th Edition, 1990), p. 1406.

Duncan Webb, Plagiarism: A Threat to Lawyers Integrity? Published by the International Bar Association, available online at http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc2ef7cd-3207-43d6-9e8716c3bc2be595.
7 8

Joyce C. George, Judicial Opinion Writing Handbook (2007), p. 725, cited by Justice Maria Lourdes Sereno in her dissenting opinion.
9

Supra note 7. G.R. No. 190582, April 8, 2010.

10

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DISSENTING OPINION CARPIO, J.: I dissent on two grounds. First, this Court has no jurisdiction to decide in an administrative case whether a sitting Justice of this Court has committed misconduct in office as this power belongs exclusively to Congress. Second, in writing judicial decisions a judge must comply with the Law on Copyright1 as the judge has no power to exempt himself from the mandatory requirements of the law. I. Disciplining Authority of Impeachable Officers Under the Constitution, the sole disciplining authority of all impeachable officers, including Justices of this Court, is Congress. Section 3(1), Article XI of the Constitution provides that, "The House of Representatives shall have the exclusive power to initiate all cases of impeachment." Likewise, Section 3(6) of the same Article provides that, "The Senate shall have the sole power to try and decide cases of impeachment." These provisions constitute Congress as the exclusive authority to discipline all impeachable officers for any impeachable offense, including "betrayal of public trust," a "catchall phrase"2 to cover any misconduct involving breach of public trust by an impeachable officer.

While impeachment is often described as a political process, it also functions as the equivalent of administrative disciplinary proceedings against impeachable officers. Impeachable officers are not subject to administrative disciplinary proceedings either by the Executive or Judicial branch, in the same manner that non-impeachable officers are subject. Thus, impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no other authority that can administratively discipline impeachable officers.3 Removal from office and disqualification to hold public office,4 which is the penalty for an impeachable offense,5 is also the most severe penalty that can be imposed in administrative disciplinary proceedings. Impeachment is not a criminal proceeding because conviction in an impeachment complaint is not a bar to criminal prosecution for the same act.6 An impeachable offense, like betrayal of public trust, may not even constitute a criminal act. Like in an administrative proceeding, proof beyond reasonable doubt is not required for conviction in impeachment. If an impeachable officer is charged of a crime, as distinguished from an administrative charge, the proper court has jurisdiction to try such impeachable officer because the proceeding is criminal, not administrative. However, neither the conviction nor acquittal of such impeachable officer in the criminal case constitutes a bar to his subsequent impeachment by Congress. There is no double jeopardy because impeachment is not a criminal proceeding.7 Only Congress, as the exclusive disciplining authority of all impeachable officers, can decide in a non-criminal, non-civil proceeding8 whether a sitting Justice of this Court has committed plagiarism. Plagiarism is a betrayal of public trust because, as the majority puts it, to plagiarize is "to steal and pass off as ones own the ideas of another."9 However, in writing judicial decisions a judge is liable for plagiarism only if the copying violates the moral rights of the author under the Law on Copyright. This Court may conduct an investigation of an administrative complaint against a sitting Justice to determine if there is basis in recommending to the House of Representatives the initiation of an impeachment complaint against the sitting Justice. This Court may also conduct an investigation of an administrative complaint against a sitting Justice to determine if the complaint constitutes contempt of this Court. However, this Court has no power to decide on the guilt or innocence of a sitting Justice in the administrative complaint because such act is a usurpation of the exclusive disciplinary power of Congress over impeachable officers under the Constitution. Any decision by this Court in an administrative case clearing a sitting Justice of an impeachable offense is void for want of jurisdiction and for violation of an express provision of the Constitution. Such a decision will put this Court on a collision course with Congress if subsequently an impeachment complaint for plagiarism is filed with Congress against the sitting Justice. Incidentally, an impeachment complaint has already been filed in the House of Representatives involving the same complaint subject of this administrative case. If the House of Representatives decides to take cognizance of the complaint and initiates an impeachment based on the same administrative complaint that this Court had already dismissed as baseless, then this Court would have created a constitutional crisis that could only weaken the publics faith in the primacy of the Constitution. The Supreme Court cannot assume jurisdiction over an administrative complaint against a sitting Justice of this Court by invoking Section 6, Article VIII of the Constitution. This provision states that the "Supreme Court shall have administrative supervision over all courts and the personnel thereof." This provision refers to the administrative supervision that the Department of Justice used to exercise over the courts and their personnel, as shown by the folowing exchange during the deliberations of the Constitutional Commission: MR. GUINGONA: xxx.

The second question has reference to Section 9, about the administrative supervision over all courts to be retained in the Supreme Court. I was wondering if the Committee had taken into consideration the proposed resolution for the transfer of the administrative supervision from the Supreme Court to the Ministry of Justice. But as far as I know, none of the proponents had been invited to explain or defend the proposed resolution. Also, I wonder if the Committee also took into consideration the fact that the UP Law Constitution Project in its Volume I, entitled: Annotated Provision had, in fact, made this an alternative proposal, the transfer of administrative supervision from the Supreme Court to the Ministry of Justice. Thank you. MR. CONCEPCION: May I refer the question to Commissioner Regalado? THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is recognized. MR. REGALADO: Thank you, Mr. Presiding Officer. We did invite Minister Neptali Gonzales, who was the proponent for the transfer of supervision of the lower courts to the Ministry of Justice. I even personally called up and sent a letter or a short note inviting him, but the good Minister unfortunately was enmeshed in a lot of official commitments. We wanted to hear him because the Solicitor General of his office, Sedfrey Ordoez, appeared before us, and asked for the maintenance of the present arrangement wherein the supervision over lower courts is with the Supreme Court. But aside from that, although there were no resource persons, we did further studies on the feasibility of transferring the supervision over the lower courts to the Ministry of Justice. All those things were taken into consideration motu proprio.10 For sure, the disciplinary authority of the Supreme Court over judges is expressly govened by another provision, that is, Section 11, Article VIII of the Constitution. Section 11 provides: Section 11. xxx The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Emphasis supplied) Clearly, the disciplinary authority of the Supreme Court over judges is found in Section 11 of Article VIII. However, this disciplinary authority is expressly limited to lower court judges, and does not incude Supreme Court Justices, precisely because the Constitution expressly vests exclusively on Congress the power to discipline Supreme Court Justices. By excluding Supreme Court Justices, Section 11 withholdsfrom the Supreme Court en banc the power to discipline its own members. The Judicial Conduct and Disability Act of 1980 of the United States, which gives judicial councilscomposed of federal judges the power to discipline federal judges short of removal from office, doesnot apply to Justices of the United States Supreme Court who are subject to discipline only by the United States Congress. Morever, a similar law cannot be enacted in the Philippines bacause all lower court judges are subject to discipline by the Supreme Court en banc under Section 11, Article VIII of the Constitution. Thus, reference to the Judicial Conduct and Disability Act of 1980 is inappropriate in this jurisdiction. I submit that this Court recall the Resolution of 12 October 2010 subject of the present motion for reconsideration for lack of jurisdiction to decide the administrative complaint against Justice Mariano C. Del Castillo.

II. The Judge Must Follow the Law on Copyright a. Copying from Works of the Government In writing judicial decisions, a judge should make the proper attribution in copying passages from anyjudicial decision, statute, regulation, or other Works of the Government. The Manual of Judicial Writing adopted11 by this Court provides how such attribution should be made. However, the failure to make such attribution does not violate the Law on Copyright.12 The law expressly provides that Works of the Government are not subject to copyright.13 This means that there is neither a legal right by anyone to demand attribution, nor any legal obligation from anyone to make an attribution, when Works of the Government are copied. The failure to make the proper attribution of a Work of the Government is not actionable but is merely a case of sloppy writing. Clearly, there is no legal obligation, by a judge or by any person, to make an attribution when copying Works of the Government. However, misquoting or twisting, with or without attribution, any judicial decision, statute, regulation or other Works of the Government in judicial writing, if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge "should perform official duties honestly."14 Rule 3.01]15 and Rule 3.0216 of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the applicable law. The foregoing applies to any non-copyrightable work, and any work in the public domain, whether local or foreign. b. Copying from Pleadings of Parties In writing judicial decisions, the judge may copy passages from the pleadings of the parties with proper attribution to the author of the pleading. However, the failure to make the proper attribution is not actionable. Pleadings are submitted to the court precisely so that the pleas, or the arguments written on the pleadings, are accepted by the judge. There is an implied offer by the pleader that the judge may make any use of the pleadings in resolving the case. If the judge accepts the pleaders arguments, he may copy such arguments to expedite the resolution of the case. In writing his decision, the judge does not claim as his own the arguments he adopts from the pleadings of the parties. Besides, the legal arguments in the pleadings are in most cases merely reiterations of judicial precedents, which are Works of the Government. However, misquoting or twisting, with or without attribution, any passage from the pleadings of the parties,if done to mislead the parties or the public, is actionable. Under Canon 3 of the Code of Judicial Conduct, a judge "should perform official duties honestly." Rule 3.01 and Rule 3.02 of the Code provide that a judge must be faithful to the law, maintain professional competence, and strive diligently to ascertain the facts and the applicable law. c. Copying from Textbooks, Journals and other Non-Government Works In writing judicial decisions, the judge may copy passages from textbooks, journals and other nongovernment works with proper attribution. However, whether the failure to make the proper attribution is actionable or not depends on the nature of the passages copied.

If the work copied without proper attribution is copyrighted, the failure to make such attribution violates Section 193 of the Intellectual Property Code, which provides: Section 193. Scope of Moral Rights. The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right: 193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work; xxxx 193.3 To object to any distortion, mutilation or other modification of, or other derogatory action in relation to his work which would be prejudicial to his honor or reputation; x x x x. (Emphasis supplied) Section 184(k) of the Intellectual Property Code expressly allows, as a limitation on the copyright or economic rights of the author, "any use made of a work for the purpose of any judicial proceedings x x x."17 Section 184(k) clearly authorizes a judge to copy copyrighted works for "any use" in judicial proceedings, which means the judge, in writing his decision, can copy passages beyond the quantitative limitations of "fair-use" under Section 184(b). This is the significance of Section 184(k), allowing the judge to copy lengthy passages of copyrighted work even beyond what is required by fair-use. Section 184(k) is silent on the obligation of the judge to make the proper attribution, unlike Section 184(b) on fair-use by the public which expressly requires a proper attribution. However, Section 193 nevertheless requires anyone, including a judge writing a judicial decision, to make the proper attribution to show respect for the moral rights of the author. Thus, while the author has no right to demand economic compensation from the judge or the government for the unlimited and public use of his work in a judicial decision, the law requires that "the authorship of the works be attributed to him x x x in connection with the public use of his work." In short, the judge is legally obligated to make the proper attribution because Section 193 protects the moral rights of the author. The moral rights under Section 193 of the Intellectual Property Code arise only if the work of an author is copyrighted. If the work is not copyrighted, then there are no moral rights to the work. If the passages in a textbook, journal article, or other non-work of the government are merely quotations from Works of the Government, like sentences or paragraphs taken from judicial decisions, then such passages if copied by a judge do not require attribution because such passages, by themselves, are Works of the Government. The same is true for works in the public domain. However, the arrangement or presentation of passages copied from Works of the Government may be subject to copyright,18 and a judge copying such arrangement or presentation, together with the passages, may have to make the proper attribution. If the passages are those of the author himself, and not copied from Works of the Government or from works in the public domain, then clearly there is a legal obligation on the part of the judge to make the proper attribution. Failure by the judge to make such attribution violates not only Section 193 of the Intellectual Property Code, but also Canon 3 of the Code of Judicial Conduct.

The moral rights of an author are independent of the authors economic rights to his work in the sense that even if the author assigns his work, the moral rights to the work remain with him, being inalienable.19Any violation of an authors moral rights entitles him to the same remedies as a violation of the economic rights to the work,20 whether such economic rights are still with him or have been assigned to another party. Thus, while called "moral rights," these rights are legally enforceable. Two essential elements of an authors moral rights are the right to attribution and the right to integrity. The right to attribution or paternity21 is the right of the author to be recognized as the originator or father of his work, a right expressly recognized in Section 193.1 of the Intellectual Property Code. The right to integrity is the right of the author to prevent any distortion or misrepresentation of his work, a right expressly recognized in Section 193.3 of the Code. The Legislature incorporated the moral rights of an author in the Intellectual Property Code in compliance with the treaty obligations of the Philippines under the Berne Convention, which requires treaty states to enact legislation protecting the moral rights of authors.22 The rationale behind moral rights is explained in a local intellectual property textbook, citing American jurisprudence: The term moral rights has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artists personality, as well as the integrity of the work, should therefore be protected and preserved. Because they are personal to the artist, moral rights exist independently of an artists copyright in his or her work.While the rubric of moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence: attribution and integrity. The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the authors work from being attributed to someone else, and to prevent the use of the authors name on works created by others, including distorted editions of the authors original work. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title of the work has been transferred. In some jurisdictions, the integrity right also protects artwork from destruction. Whether or not a work of art is protected from destruction represents a fundamentally different perception of the purpose of moral rights. If integrity is meant to stress the public interest in preserving a nations culture, destruction is prohibited; if the right is meant to emphasize the authors personality, destruction is seen as less harmful than the continued display of deformed or mutilated work that misrepresents the artist and destruction may proceed.23 (Emphasis supplied) When a judge respects the right to attribution and integrity of an author, then the judge observes intellectual honesty in writing his decisions. Writing decisions is the most important official duty of a judge, more so of appellate court judges. Conversely, if a judge fails to respect an authors right to attribution and integrity, then the judge fails to observe intellectual honesty in the performance of his official duties, a violation of Canon 3 of the Code of Judicial Conduct. The duty of a judge to respect the moral rights of an author is certainly not burdensome on the performance of his official duties. All the reference materials that a judge needs in writing judicial decisions are either Works of the Government or works in the public domain. A judge must base his decision on the facts and the law,24 and the facts and the law are all in the public domain.There is no need for a judge to refer to copyrighted works. When a judge ventures to refer to copyrighted works by copying passages from such works, he immediately knows he is treading on protected works, and should readily respect the rights of the authors of those works. The

judge, whose most important function is to write judicial decisions, must be the first to respect the rights of writers whose lives and passions are dedicated to writing for the education of humankind. Besides, Section 184(k) of the Intellectual Property Code already generously allows the judge unlimited copying of copyrighted works in writing his judicial decisions. The Code, however, does not exempt the judge from recognizing the moral rights of the author. The basic rule of human relations, as embodied in Article 19 of the Civil Code, requires that the judge should give to the author of the copyrighted work what is due him. Thus, Article 19 states: "Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith." d. Difference from the Academe Academic writing, such as writing dissertations or articles in academic journals, is governed by standards different from judicial decision writing. The failure to make the proper attribution for passages copied from Works of the Government is not actionable against a judge when writing a judicial decision. However, the same failure by a student or a faculty member may be deemed plagiarism in the academe, meriting a severe administrative penalty. Nevertheless, the Judiciary and the academe should have the same rule when it comes to copyrighted works. In every case, there is a legal duty to make the proper attribution when copying passages from copyrighted works because the law expressly requires such attribution without exception. The academe requires that passages copied from Works of the Government, works in the public domain, and non-copyrighted works should be properly attributed in the same way as copyrighted works. The rationale is to separate the original work of the writer from the works of other authors in order to determine the original contribution of the writer to the development of a particular art or science. This rationale does not apply to the Judiciary, where adherence to jurisprudential precedence is the rule. However, if a judge writes an article for a law journal, he is bound by the same rules governing academic writing.25 ACCORDINGLY, I vote to RECALL the Resolution of 12 October 2010 subject of the present motion for reconsideration as this Courts jurisdiction extends only to a determination whether the administrative complaint against Justice Mariano C. Del Castillo constitutes contempt of this Court. ANTONIO T. CARPIO Associate Justice

Footnotes
1

Part IV, Intellectual Property Decree (Republic Act No. 8293).

Volume II, Records of the Constitutional Commission, p. 272. The following exchange took place during the deliberations of the Constitutional Commission: MR. REGALADO: Thank you, Madam President. xxx

First, this is with respect to Section 2, on the grounds for impeachment, and I quote: . . . culpable violation of the Constitution, treason, bribery, other high crimes, graft and corruption or betrayal of public trust. Just for the record, what would the Committee envision as a betrayal of the public trust which is not otherwise covered by the other terms antecedent thereto? MR. ROMULO: I think, if I may speak for the Committee and subject to further comments of Commissioner de los Reyes, the concept is that this is a catchall phrase. Really, it refers to his oath of office, in the end that the idea of a public trust is connected with the oath of office of the officer, and if he violates that oath of office, then he has betrayed that trust. MR. REGALADO: Thank you. MR. MONSOD: Madam President, may I ask Commissioner de los Reyes to perhaps add to those remarks. THE PRESIDENT: Commissioner de los Reyes is recognized. MR. DE LOS REYES: The reason I proposed this amendment is that during the Regular Batasang Pambansa when there was a move to impeach then President Marcos, there were arguments to the effect that there is no ground for impeachment because there is no proof that President Marcos committed criminal acts which are punishable, or considered penal offenses. And so the term "betrayal of public trust," as explained by Commissioner Romulo, is a catchall phrase to include all acts which are not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in office. It includes betrayal of public interest, inexcusable negligence of duty, tyrannical abuse of power, breach of official duty by malfeasance or misfeasance cronyism, favoritism, etc. to the prejudice of public interest and which tend to bring the office into disrepute. That is the purpose, Madam President. Thank you. MR. ROMULO: If I may add another example, because Commissioner Regalado asked a very good question. This concept would include, I think, obstruction of justice since in his oath he swears to do justice to every man; so if he does anything that obstructs justice, it could be construed as a betrayal of the public trust. Thank you. (Emphasis supplied)
3

The 1993 Report of the National Commission on Judicial Discipline & Removal of the United States (http://judicial-disciplinereform.org/judicial_complaints/1993_Report_Removal.pdf, pp. 17-18) concluded thatimpeachment is the exclusive mode of removing federal judges from office, thus: Nevertheless, the Commission concludes that Congress may not provide for removal as a criminal penalty. If removal may lawfully follow on conviction for a federal judge, then it may do so for the Vice President of the United States or perhaps even the President. But if the constitutional grant of a term of office to the Vice President and President prevails against any provision for removal in the criminal law, the same should be true of the tenure the Constitution grants to judges. The Constitution quite explicitly separates impeachment and removal from the ordinary criminal process.

The Commission does not believe that Congress's power to punish crimes is an exception to judicial life tenure, or alternatively a way in which good behavior may be inquired into, in the way that the impeachment process clearly is. xxxx The Commission concludes that a statute providing for the removal from office of judges who serve on good behavior under Article III by means other than impeachment and conviction would be unconstitutional. (Emphasis supplied; citations omitted)
4

Section 3(7), Article XI of the Constitution provides: "Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law."
5

There are those who, with good reason, believe that removal from office is the maximum penalty in impeachment and thus there can be lesser penalties like censure. See Joseph Isenbergh, Impeachment and Presidential Immunity from Judicial Process, 18 Yale Law & Policy Review 53 (1999).
6

See note 4.

Professor Laurence H. Tribe writes: "The independence of the process of impeachment and criminal prosecution is highlighted by the case of Judge Alcee Hastings, who was acquitted of bribery by a federal jury in 1983, but was subsequently impeached by the House and convicted by the Senate for the same offense and for testifying falsely about it under oath at his federal criminal trial. Similarly, Judge Walter Nixon was impeached by the House and convicted by the Senate in 1989 for falsely testifying under oath before a federal grand jury investigating Judge Nixons improper discussions with a state prosecutor in a case involving a business acquaintances son, despite an earlier acquittal in a federal prosecution for bribery arising out of those very events. And, although this precise sequence is not addressed by Article I, Section 3, clause 7, it should also be possible for an official to be acquitted by the Senate in an impeachment trial but subsequently convicted of the same underlying acts in a federal court. The Senates acquittal, after all, could well represent a determination merely that the charged offenses were not impeachable, or that the nation would be harmed more than protected by pronouncing the official guilty." American Constitutional Law, Volume 1 (3rd edition), pp. 159-160.
8

An author whose moral rights under the Law on Copyright are infringed by a judge in his judicial decision may file a civil case in court against such judge. See discussion on The Judge Must Follow the Law on Copyright,infra.
9

Quoting Blacks Law Dictionary. Volume I, Records of the Constitutional Commission, pp. 456-457. Approved by the En Banc on 15 November 2005.

10

11

12

Part IV of RA No. 8293, otherwise known as the "Intellectual Property Code of the Philippines."

13

Section 176 of RA No. 8293 provides: "Works of the Government. No copyright shall subsist in any work of the Government of the Philippines. xxx."
14

Canon 3 of the Code of Judicial Conduct provides: "A judge should perform official duties honestly, and with impartiality and diligence."
15

Rule 3.01 of the Code of Judicial Conduct provides: "A judge shall be faithful to the law and maintain professional competence."
16

Rule 3.02 of the Code of Judicial Conduct provides: "In every case, a judge shall endeavour diligently to ascertain the facts and the applicable law, unswayed by partisan interests, public opinion or fear of criticism."
17

Section 184 (k) of RA No. 8293 provides: "Limitations on Copyright. 184.1. Notwithstanding the provisions of Chapter V [on copyright and economic rights], the following acts shall not constitute infringement of copyright: (a) x x x x xxxx (k) Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner."
18

Section173.1 (b), Intellectual Property Code.

19

Section 198.1 of the Intellectual Property Code provides that the "[moral] rights of an author x x x shall not be assignable or subject to license."
20

Section 119, Intellectual Property Code. Roger E. Schechter and John R. Thomas, Intellectual Property (2003), p. 19. Vicente B. Amador, Copyright under the Intellectual Property Code (1998), p. 570.

21

22

23

Id. p. 569, citing John Carter, John Swing and John Veronis v. Helmsley-Spear, Inc. and Associates, U.S. Court of Appeals for 2nd Circuit, 1 December 1995.
24

Article 8 of the Civil Code provides: "Judicial decisions applying or interpreting the laws or the Constitution shall form part of the legal system of the Philippines."
25

In the Matter of Hon. Thomas E. Brennan, Jr., Judge, 55th District, Mason, Michigan, 433 Mich. 1204, 447 N.W.2d 712 (6 November 1989) . In this case, Judge Brennan, Jr. submitted an article to a law review for publication. The article failed to acknowledge several passages copied from law journal articles of two other authors. The Michigan Judicial Tenure Commission recommended to the Supreme Court of Michigan that Judge Brennan, Jr. be publicly censured for misconduct. Interestingly, Judge Brennan, Jr. (a state judge) admitted his misconduct and made the following manifestation: Respondent Thomas E. Brennan, Jr., of the 55th District Court, Ingham County, Michigan, acknowledges notice and receipt of the Judicial Tenure Commission's

Decision and Recommendation for Order of Discipline dated September 12, 1989, and stipulates to the Judicial Tenure Commission's findings as recited in paragraphs one (1) through six (6) thereof; Respondent further affirmatively acknowledges the impropriety of his conduct as set forth in the Decision and Recommendation for Order of Discipline, and pursuant to MCR 9.221(C), consents to the Commission's recommendation that he be publicly censured. Respondent further concurs in the request of the Judicial Tenure Commission that an order embodying the foregoing disciplinary action be entered immediately by the Michigan Supreme Court. (Emphasis supplied)

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DISSENTING OPINION SERENO, J.: Judges need not strain themselves to meet inapplicable standards of research and attribution of sources in their judicial opinions, nor seek to achieve the scholarly rigidity or thoroughness observed in academic work. They need to answer to only two standards diligence and honesty. By honesty here is meant that good faith attempt to attribute to the author his original words and analysis. Even if a judge has to rely in large part on the drafts of his legal researchers, the work of a diligent and honest judge will never display the severe plagiarism evident in the Vinuya Decision published under the name of Justice Mariano C. del Castillo. A judge will only find himself in the same predicament as Justice del Castillo if two situations coincide: (1) the judge wittingly or unwittingly entrusts a legal researcher with the task of drafting his judicial opinion, and the legal researcher decides to commit severe plagiarism; and (2) the judge: (a) does not read and study the draft decision himself; (b) even if he does read and study the same, the "red flags" that are self-evident in the draft decision completely escape him; or (c) despite having seen the red flags, he ignores them. We use the words "severe plagiarism" here deliberately because not only were three (3) works of the four (4) complaining authors1 plagiarized in Vinuya, text from the following copyrighted works was copied without attribution as well: essays contributed by Robert McCorquodale and Phoebe Okowa to the book International Law, edited by Malcolm Evans; an article written by Mariana Salazar Albornoz, entitled Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges; an article written by Elizabeth Prochaska, entitled Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada; a report by Larry Niksch, entitled Japanese Militarys Comfort Women; and an article by James Ladino, entitled Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121. In addition, incorporated into Vinuya were excerpts from a decision of an international tribunal without any signal given to the reader that the words were not those of Justice del Castillo of the Philippine Supreme Court but the words of another tribunal. While there are views that a judge cannot be guilty of plagiarism for failure to recognize foreign decisions as source materials in ones judicial writing as when Justice Antonio C. Carpio opines that a judge cannot be guilty on this score alone it is beyond debate that there is a

duty of care to attribute to these foreign and international judicial decisions properly, and that one should never present these materials as if they are ones own. An estimate of the extent of the plagiarism in the Vinuya Decision has been made by my office. The best approximation available to us, using the "word count" feature of Microsoft Word, reveals that 52.9% of the words used in the VinuyaDecisions discussion on international law, which begins in page 24 and continues to the end (2,869 out of 5,419 words), are copied without attribution from other works. The Vinuya Decision, therefore, because of the severity of the plagiarism attending it, is the worst possible context for the Majority to draw, in its Decision dated 12 October 2010 and in its Resolution denying the Motion for Reconsideration, the following conclusions: 1. that plagiarism requires the element of "malicious intent"; 2. that calibrating its ruling in response to the outcry of the academic community after the Majority Decision was issued the rules against plagiarism applicable to the academic community do not apply to judicial decisions; 3. that the standard of attribution applicable to judicial decisions is effectively, no standard at all a judge cannot be guilty of plagiarism as understood by the academic world, and neither is he liable for copying without attribution, even from copyrighted materials; 4. that this lack of liability extends as well to benefit lawyers in the submission of their pleadings before courts; and 5. that on the whole, the Vinuya Decision is the product of hard, honest, original work. In the course of the resolution of the Motion for Reconsideration, I have found myself counteraccused of having copied the works of others without attribution. I have debunked each of these claims and lay them bare in this Dissent. I have even proven that it was one of my co-authored works that was copied without attribution being given to me and to my co-authors. The theory propounded against me is that I cannot conclude that the Vinuya Decision is partly a product of plagiarism unless I am willing to call myself a plagiarist as well. I emphasize, however, my original thesis that a diligent and honest judge or researcher will never find himself to have plagiarized, even unwittingly, to the same extent that plagiarism occurred in the Vinuya Decision. Herein lies the safety of a researcher a habit of trying to give recognition where recognition is due. Should any of my works, wherein I failed to make proper attribution, surface, I will do what I have recommended that the author of the Vinuya Decision do: acknowledge the wrong, apologize to the wronged, and correct the work. See pages 58 to 75 herein for a discussion on the counter-accusations leveled against me. Irrespective of the outcome of my analysis, let it be stated that this Dissent does not make any pronouncement regarding the jurisdiction of this Court over the complaint for plagiarism against Justice del Castillo. My esteemed colleague Justice Carpio is convinced that Congress is the sole disciplining authority of all impeachable officers, including Justices of the Supreme Court. He characterizes plagiarism as a betrayal of public trust, and thus, "impeachment by Congress takes the place of administrative disciplinary proceedings against impeachable officers as there is no other power that can administratively discipline impeachable officers."2 I. The Flow of the Analysis in This Dissent

A. Parameters To allay any concern from members of the judiciary, I have been very careful to underscore the limitations of my analysis of the Vinuya Decision. My Dissent of 12 October 2010 is very clear: In a certain sense, there should have been less incentive to plagiarize law review articles because the currency of judges is stare decisis. One wonders how the issue should have been treated had what was plagiarized been a court ruling, but that is not at issue here. The analysis in this opinion is therefore confined to the peculiar situation of a judge who issues a decision that plagiarizes law review articles, not to his copying of precedents or parts of the pleadings of the parties to a case.3 To be categorical, a judge or legal researcher cannot be guilty for using doctrines that have been incorporated into the mainstream and are standard terms of trade. Neither is a judge required to use quotation marks or blockquotes every time there is a reference to allegations in the pleadings of parties, or when he is discussing legal arguments using already accepted legal doctrines. It is when he ventures into using the original words of others, especially those of legal scholars, that he must be particularly careful. He cannot write to pass off the words of others, especially those of others pioneering works, as his own. To do so is dishonest. It has also been suggested that Justice del Castillo cannot be guilty of plagiarism as he never read the work of Mariana Salazar Albornoz. That argument is neither here nor there. At the very least, the words he copied were those of another in an important original analysis of the state of international law on rape. B. Structure of the Technical Analysis in This Dissent The structure and rigidity of the Technical Analysis in this Dissent is necessary to fulfill two purposes: (1) to enable the reader to examine whether I have scientific and objective basis to conclude that severe plagiarism characterizes theVinuya Decision; and (2) to examine whether I am willing to subject my work to the same standards to which I have subjected the Vinuya Decision. One interesting note. My professional record had been vetted by the Judicial and Bar Council prior to my appointment to this Court. My previous works those of an academic and those of a pleader are presently being, and, I expect will continue to be, thoroughly scrutinized. While those previous works form part of the basis of my appointment, inasmuch as they are proof of my competence and expertise, they cannot serve as a basis to determine whether I am now performing my duties as a judge satisfactorily. One can view the scrutiny as an unwarranted collateral attack on my record. This did not happen until my Dissent of 12 October 2010. The first part of the Technical Analysis consists of new tables of comparison presenting more instances of plagiarism as they occur in the Vinuya Decision. Two of these tables deal with copied works that previously appeared in my earlier Dissent: A Fiduciary Theory of Jus Cogens, by Evan J. Criddle and Evan Fox-Decent, and Breaking the Silence: Rape as an International Crime by Mark Ellis; however, the entries for these tables present instances of plagiarism not discussed or presented in my Dissent of 12 October 2010. Following the tables are lists of violations of rules against plagiarism, each list item corresponding to one table entry. Following the presentation of the tables, the process whereby plagiarism could have been committed in Vinuya is examined. The severe extent of plagiarism, which is already evident in the tables, is discussed further, followed by an analysis of the systematic commission of plagiarism in Vinuya. This analysis consists of the detailed dissection of specific parts of the Vinuya decision: the text of the body in pages 31-32, and the first paragraph of footnote 65. The research process purportedly used by the legal researcher of Vinuya is then broken down into separate steps that illustrate the

decision points at which an honest and diligent researcher would have ensured that proper attribution to sources be given. This is then followed by a closer examination of the deletion of existing citations and the features of Microsoft Word relevant to the deletion of footnotes. II. Technical Analysis of Plagiarism in Vinuya A. More Plagiarism Below are new tables of comparison excluding materials in tables already discussed in my earlier Dissent to the majority Decision in AM 10-7-17-SC of excerpts from the Decision in Vinuya vis-a-vis text from one (1) book on international law, five (5) foreign law journal articles, and a copyrighted report of the United States Congressional Research Service. While the degree of seriousness of the offense of unattributed copying varies with the kind of material copied, the extent of the copying conveys the level of honesty or dishonesty of the work done with respect to the Vinuya Decision. The extent of copying enumerated in these tables also renders incredible the claim of mechanical failure, as well as the alleged lack of intent on the part of the researcher to not give proper attribution. The materials for comparison were first identified in the Motion for Reconsideration and in the letter of Dr. Peter B. Payoyo, a Filipino legal scholar residing in the Netherlands, addressed to the Chief Justice dated 28 October 2010. These excerpts were independently verified, and compared with the corresponding portions from the original works. In the course of independent verification, we came across three more unattributed copied works. TABLES OF COMPARISON To aid an objective analysis of the extent and manner of the plagiarism committed in the Vinuya Decision, below are tables of comparison that will compare three written works: (1) the plagiarized work; (2) the Vinuya Decision; and (3) the purported "original" source analyzed or cited by the concerned authors and by the Vinuya Decision. The left column pertains to the literary works allegedly plagiarized by the legal researcher in the Vinuya Decision. The middle column refers to the pertinent passage in the Vinuya Decision that makes unattributed use of the copied work. According to the Majority Resolution, these citations made to original sources (e.g. to the international law cases being referenced to support a certain point) in the Vinuya Decision are sufficient to refute the charges of non-attribution. To address this claim, I have chosen to add a third column to present the text of the source referred to in the nearest (location-wise and/or context-wise) citation or attribution made in the Vinuya Decision. This will allow us to determine whether the analysis, reference and/or collation of original sources were those of the allegedly plagiarized authors or are Vinuya originals. In addition, this three-column presentation will also allow us to examine the claim being made by Justice del Castillo that at least two of the authors whose works are allegedly plagiarized in the Vinuya Decision themselves violated academic scholarship rules against plagiarism. TABLE A: Comparison of Evan J. Criddle & Evan Fox-Decents article in the Yale Journal of International Law, entitled A Fiduciary Theory of Jus Cogens (2009) and the Supreme Courts 28 April 2010 Decision in Vinuya v. Executive Secretary. The Allegedly Plagiarized Work Evan J. Criddle & Evan FoxDecent, A Fiduciary Theory of International Source Being Analyzed by Criddle and Fox-Decent

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.

Jus Cogens, 34 Yale J. Int'l L. 331 (2009). 1. ...judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions.[10] [10] For example, in the 1934 Oscar Chinn Case, Judge Schcking's influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schcking, J., dissenting). (p. 335 of Criddle and FoxDecent) ...Judges on the Permanent Court of International Justice affirmed the existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary to public policy) in a series of individual concurring and dissenting opinions. (For example, in the 1934 Oscar Chinn Case, Judge Schcking's influential dissent stated that neither an international court nor an arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schcking, J., dissenting). (p. 31, footnote 71 of Vinuya) ...It is an essential principle of any court, whether national or international, that the judges may only recognize legal rules which they hold to be valid. There is nothing to show that it was intended to disregard that legal principle when this Court was instituted, or that it was to be obliged to found its decisions on the ideas of the partieswhich may be entirely wrongas to the law to be applied in a given case. The Court would never, for instance, apply a convention the terms of which were contrary to public morality. But, in my view, a tribunal finds itself in the same position if a convention adduced by the parties is in reality null and void, owing to a flaw in its origin. The attitude of the tribunal should, in my

opinion, be governed in such a case by considerations of international public policy, even when jurisdiction is conferred on the Court by virtue of a Special Agreement. Source: The Oscar Chinn Case (U.K. v. Belg.), 1934 P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (separate opinion of Judge Schcking). 2. While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment on Preliminary Objections in Armed Activities on the Territory of the Congo (Congo v. Rwanda), it declined to clarify jus cogens's legal status or to specify any criteria for identifying peremptory norms.[67] While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment on Preliminary Objections in Armed Activities on the territory of the Congo (Congo v. Rwanda), it declined to clarify jus cogenss legal status or to specify any criteria for identifying peremptory norms. (Armed Activities on the Territory of the Congo, Jurisdiction of the Court and Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of February 3, 2006), at 31-32, available at http://www.icjcij.org/docket/files/126/10435.pdf. [64]....The Court observes, however, as it has already had occasion to emphasize, that "the erga omnescharacter of a norm and the rule of consent to jurisdiction are two different things"..., and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to

[67] Armed Activities on the Territory of the Congo, Jurisdiction of the Court and Admissibility of the Application (Dem. Rep. Congo v. Rwanda) (Judgment of Feb. 3, 2006), at 31-32, available at http://www.icjcij.org/docket/files/126/10435.pdf (p. 32, footnote 77 of Vinuya) (last visited Mar. 31, 2009). (p. 346, footnote 67 of Criddle and Fox-Decent)

entertain that dispute. The same applies to the relationship between peremptory norms of general international law (jus cogens)and the establishment of the Courts jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Courts Statute that jurisdiction is always based on the consent of the parties. Source: Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 6, 31-32 (Feb. 3).

3. Similarly, the European Court of Human Rights has addressed jus cogens only once, in AlAdsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity.[75] [75] Shelton, supra note 3, at 309 (discussing Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61). (p. 347 of Criddle and FoxDecent)

[77] Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of sovereign immunity. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, 61) (p. 32, footnote 77 of Vinuya)

[61] While the Court accepts, on the basis of these authorities, that the prohibition of torture has achieved the status of a peremptory norm in international law, it observes that the present case concerns the immunity of a State in a civil suit for damages in respect of acts of torture within the territory of that State. Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are

alleged. Source: Al-Adsani v United Kingdom, App. No. 35763/97, 34 Eur. H.R. Rep. 11, par. 61 (2002)(21 Nov. 2001). TABLE B: Comparison of Mark Elliss article entitled Breaking the Silence: Rape as an International Crime (2006-2007) and the Supreme Courts 28 April 2010 Decision in Vinuya v. Executive Secretary. The Allegedly Copied Work

The Decision International Source Being Analyzed by Ellis

Mark Elliss article entitled Vinuya v. Executive Breaking the Silence: Rape Secretary, G.R. No. as an International Crime 162230, 28 April 2010. 38 Case W. Res. J. Intl. L. 225(2006-2007). 1. A major step in this legal development came in 1949, when rape and sexual assault were included in the Geneva Conventions.... Rape is included in the following acts committed against persons protected by the 1949 Geneva Conventions: "wilful killing, torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health." [65] Fourth Geneva Convention, supra note 23, art. 147. (p. 236 of Ellis) [65] A major step in this legal development came in 1949, when rape and sexual assault were included in the Geneva Conventions. Rape is included in the following acts committed against persons protected by the 1949 Geneva Conventions: "willful killing, torture or inhuman treatment, including biological experiments; willfully causing great suffering or serious injury to body or health." (SeeGeneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the

[Article 50/51/147] Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health. Source: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31; Geneva Convention (II)

Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c). (p. 28, footnote 65 of Vinuya) 2. Rape as a violation of the laws or customs of war generally consists of violations of Article 3 of the 1949 Geneva Conventions, which, in part, prohibits "violence to life and person, in particular mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment."[66] 66 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c).... (p. 236 of Ellis) [65] Rape as a violation of the laws or customs of war generally consists of violations of Article 3 of the 1949 Geneva Conventions, which, in part, prohibits "violence to life and person, in particular mutilation, cruel treatment and torture; outrages upon personal dignity, in particular humiliating and degrading treatment." (SeeGeneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention, supra note 23, art. 3(1)(c). (p. 28, footnote 65 of Vinuya)

for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 973; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287. Article 3 (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; Source: Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 973; Geneva Convention (IV) Relative to the Protection of Civilian

Persons in Time of War, 75 U.N.T.S. 287. 3. Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states that "women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault."[67] [67] Fourth Geneva Convention, supra note 23, art. 27. (pp. 236 of Ellis) 4. Protocol I of the Geneva Conventions continues to expand the protected rights by providing that "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any form of indecent assault."[68] [65] Protocol I of the Geneva Conventions continues to expand the protected rights by providing that "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any form of indecent assault." (Protocol Additional to the Geneva [68] Protocol Additional to the Geneva Conventions of Conventions of August 12, 1949, and Relating to the 12 August 1949, and Protection of Victims of Relating to the Protection International Armed of Victims of International Conflicts (Protocol I), Armed Conflicts (Protocol Article 76(1), 1125 I), Article 76(1), 1125 U.N.T.S. 4). U.N.T.S. 4. (pp. 236-237 of Ellis) (p. 28, footnote 65 of Vinuya) Article 76.-Protection of women 1. Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault. Source: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3. [65] Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states that "women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault." (p. 28, footnote 65 of Vinuya) Article 27 Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Source: Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287.

TABLE C: Comparison of Robert McCorquodales work, entitled The Individual and the International Legal System,4and Phoebe Okowas work, entitled Issues of Admissibility and the Law on International Responsibility,5 both of which were published in Malcolm Evanss book (International Law), and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly The Decision International Source

Copied Work Essays published in Malcolm Evans, International Law (ed., 2006). 1. Traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individuals behalf. Even then, it is not the individuals international rights that are being asserted but the States own rights. (p. 315-16 of Evanss International Law book, essay written by McCorquodale) Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individuals behalf.[55] Even then, it is not the individuals rights that are being asserted, but rather, the states own rights. [55] Appeal from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser. A/B No. 61, p. 208 at 231. (p. 24, Body of Vinuya)

Being Analyzed and Used by McCorquodale / Okowa

Note: Page 231 of the Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal case the citation nearest in location and in context to the passage does not contain a discussion on "persuad[ing] a government to bring a claim on the individuals behalf." The reference to Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal case occurs inMcCorquodale as footnote 14, four sentences before the passage copied by Vinuya, and is made following the quote, it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself. In McCorquodale, the citation following the discussion on how "it is not the individuals international rights that are being asserted but the States own rights" is written thus in footnote 16: [16] PanevezeysSaldutiskis Railway, Judgment, PCIJ, Ser A/B, No 76, p 4. CfLaGrand

(Germany v United States of America), Merits, Judgment, ICJ Reports 2001, p 466, para 42. 2. The conceptual understanding that individuals have rights and responsibilities in the international legal system does not automatically mean that they have the ability to bring international claims to assert their rights or are able to claim an immunity to prevent their responsibilities being enforced (Hohfeld, above). Thus the PCIJ declared that it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself.[14] [14] Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser A/B, No 61, p 208 at p 231 (p. 315 of Evanss International Law book, essay written byMcCorquodale) 3. The decisions of national courts on these constitutional provisions nevertheless support the thesis that general international law as it stands does not mandate an enforceable legal duty of diplomatic protection.[17] [17] Kaunda and others v President of the Republic Even decisions of national courts support the thesis that general international law as it stands does not mandate an enforceable legal duty of diplomatic protection. (p. 26, footnote 63 of Vinuya) Note: In Okowas essay, this statement follows a paragraph in which she discusses Kaundain the context of discretionary diplomatic protection. Thus, for the pertinent passages ofKaunda please see entry 5 of this table. [55] The conceptual understanding that individuals have rights and responsibilities in the international arena does not automatically mean that they have the ability to bring international claims to assert their rights. Thus, the Permanent Court of International Justice declared that "it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself." Appeal from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment, 1933, PCIJ, Ser. A/B No. 61, p. 208 at 231. (p. 24, footnote 55 of Vinuya) Again, it is scarcely necessary to point out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights oneself. No argument against the University's personality in law can therefore be deduced from the fact that it did not enjoy the free disposal of the property in question.... Source: Appeal from a Judgment of the HungaroCzechoslovak Mixed Arbitral Tribunal (Peter Pzmny University v. Czechoslovakia), 1933 P.C.I.J. 208, (ser. A/B) No. 61, at 231 (Dec. 15).

of South Africa and others, Case CCCT23/04. In the Hess Decision BverfGE, 55, 349, 90 ILR 386, the German Federal Constitutional Court upheld the existence of a federal constitutional right to diplomatic protection but denied that it was required by customary international law. See alsoAbbasi v Sec of Foreign and Commonwealth Affairs and Sec of Home Office [2002] EWCA Civ 1598, 6 November 2002. (p. 484 of Evanss International Law book, essay written byOkowa) 4. This position was been challenged in the UK in a case arising from the clearly internationally unlawful detention by the US of prisoners in Guantanamo Bay from the time of the Afghanistan conflict in 2001. In Abassi v Secretary of State for Foreign and Commonwealth Affairs[19] the applicant (a British national) sought judicial review of the adequacy of the diplomatic actions of the British government with the US government. (p. 316 of Evanss International Law book, essay written byMcCorquodale) [63] has been challenged in the UK in a case arising from the unlawful detention by the US of prisoners in Guantanamo Bay from the time of the Afghanistan conflict in 2001. In Abbasi v Secretary of State for Foreign and Commonwealth Affairs ([2002] EWCA Civ 1316, 19 September 2002) the applicant (a British national) sought judicial review of the adequacy of the diplomatic actions of the British government with the US government. (p. 26, footnote 63 of Vinuya) 1. Feroz Ali Abbasi, the first claimant, is a British national.... They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done. ... 107. ...On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign

policy. Source: Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, 42 I.L.M. 358, 359-383 (2003)(Nov. 6)(U.K.). 5. The South African Constitutional Court in Kaunda and others v President of the Republic of South Africa and others[16] recognized the constitutional basis of the right of diplomatic protection as enshrined in the South African constitution, but went on to hold that the nature and extent of his obligation was an aspect of foreign policy within the discretion of the executive. [16] Kaunda and others v. President of the Republic of South Africa and others, Case CCCT23/04. (p. 484 of Evanss International Law book, essay written by Okowa) [63] The South African Constitutional Court in Kaunda and others v. President of the Republic of South Africa and others (Case CCCT23/04) recognized the constitutional basis of the right of diplomatic protection as enshrined in the South African Constitution, but went on to hold that the nature and extent of this obligation was an aspect of foreign policy within the discretion of the executive. (p. 27, footnote 63 of Vinuya) [65] The founding values of our Constitution include human dignity, equality and the advancement of human rights and freedoms. [69] There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms.... [73] A court cannot tell the government how to make diplomatic interventions for the protection of its nationals. [77] A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any)

which should follow if such representations are rejected are matters with which courts are ill equipped to deal. Source: Kaunda v. President of the Republic of South Africa, 44 I.L.M. 173, pars. 65-77 (2005) (C. Ct. S. Afr.). TABLE D: Comparison of Mariana Salazar Albornozs article, Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges, and the Supreme Courts Decision in Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Mariana Salazar Albornoz, Legal Nature and Legal Consequences of Diplomatic Protection: Contemporary Challenges, 6 Anuario Mexicano de Derecho Internacional 377 (2006) 1. Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Purported "Original" Source Cited by the Concerned Authors and in the Vinuya Decision

Nowhere is this position more clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case: By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact, is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its

injury to a private interest, which in point of fact, is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.[85] [85] Mavrommatis Palestine Concessions case, supra note 9, p. 12. The emphasis is ours. This traditional view was repeated by the PCIJ in the Panevezys-Saldutiskis Railway Case, the Case Concerning the Payment of Various Serbian Loans issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The ICJ has adopted it in the Reparation for injuries suffered in the service of the United Nations Advisory Opinion: ICJ Reports 1949, p. 174; the Nottebohm Case (second phase) Judgment of April 6th, 1955: ICJ Reports 1955, p. 4 at p. 24; the Interhandel Case (Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27) and the Barcelona Traction Light and Power Company, Limited case, supra note 6, at p. 32 par. 33. It has also been recognized by other international tribunals: see, for example, Administrative

injury to a private interest, which in point of fact, is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.[56] [56] PCIJ, Ser. A, No. 2, p. 11, at 16. This traditional view was repeated by the PCIJ in the PanevezysSaldutiskis Railway Case, the Case Concerning the Payment of Various Serbian Loans issued in France, Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The ICJ has adopted it in the Reparation for injuries suffered in the service of the United Nations Advisory Opinion: ICJ Reports 1949, p. 174; the Nottebohm Case (second phase) Judgment of April 6th, 1955: ICJ Reports 1955, p. 4 at p. 24; the Interhandel Case (Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27) and the Barcelona Traction Light and Power Company, Limited case, (Belg. V. Spain), 1970 I.C.J. 3, 32 (Feb. 5). (p. 24 Body of Vinuya)

subjects before an international tribunal, in the eyes of the latter the State is sole claimant. The fact that Great Britain and Greece are the opposing Parties to the dispute arising out of the Mavrommatis concessions is sufficient to make it a dispute between two States within the meaning of Article 26 of the Palestine Mandate. Source: Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), 1924 P.C.I.J. (ser. A) No. 2, at 12 (Aug. 30).

Decision No. V of the USGerman Claims Commission. (p. 397 of Albornoz) 2. Under this view, the considerations underlying the decision to exercise or not diplomatic protection may vary depending on each case and may rely entirely on policy considerations regardless of the interests of the directly-injured individual, and the State is not required to provide justification for its decision.[90] [90] See in this sense, Borchard E., Diplomatic Protection of Citizens Abroad, New York, The Banks Law Publishing Co., 1915, at VI. Also: G. Berlia, op. cit. (note 86), pp. 63 y 64. (p. 398 of Albornoz) [57] See Borchard, E., Diplomatic Protection of Citizens Abroad at VI (1915). Under this view, the considerations underlying the decision to exercise or not diplomatic protection may vary depending on each case and may rely entirely on policy considerations regardless of the interests of the directly-injured individual, and the State is not required to provide justification for its decision. (p. 25, footnote 57 of Vinuya) The citizen abroad has no legal right to require the diplomatic protection of his national government. Resort to this remedy of diplomatic protection is solely a right of the government, the justification and expediency of its employment being a matter for the governments unrestricted discretion. This protection is subject in its grant to such rules of municipal administrative law as the state may adopt, and in its exercise internationally to certain rules which custom has recognized. Source: Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims, vi (1914). The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support this traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in the State,"[59] (ii) affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii) stress that the state "has the right to exercise diplomatic 60. The texts of the draft articles on diplomatic protection with commentaries thereto adopted on first reading by the Commission at its fifty-sixth session, are reproduced below. Article 2 stresses that the right of diplomatic protection belongs to or vests in the State. It gives recognition to the

3.

The ILCs First Reading Draft Articles on diplomatic protection have fully attached to the traditional view on the legal nature of such institution. In this sense, (i) they expressly state that "the right of diplomatic protection belongs to or vests in the State", a statement which "gives recognition to the Vattelian notion that an injury to a national is an indirect injury to the State";[96] (ii) they affirm

its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the State;[97] and stressing that the state "has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so."[98]

protection on behalf of a national. It is under no duty or obligation to do so."[61]

Vattelian notion that an injury to a national is an indirect injury to the State.[25] ... A State has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so. The internal law of a State may oblige a State to extend diplomatic protection to a national,[29] but international law imposes no such obligation.... Source: Text of the Draft Articles on Diplomatic Protection Adopted by the Commission on First Reading, Rep. of the Int'l. Law Comm'n, 56th Sess., 3 May-4 June and 5 July-6 August 2004, U.N. Doc. A/59/10 at 22-28, par. 60; GAOR, 59th Sess., Supp. 10 (2004). 74. The discretionary power of the State to intervene on behalf of its national is considered in the commentary on article 4. Article 4 1. Unless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on

[59] ILC First Reading Draft Articles on Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC Report, A/53/10 (F), par. 60, Commentary to Draft Article 2, par. (1); see also, [96] ILC First Reading Draft Commentary to Draft Articles on Diplomatic Article 1, par. (3), and text Protection, supra note 13, of Draft Article 2. par. 60, Commentary to Draft Article 2, par. (1); see [60] Report of the also, Commentary to Draft International Law Article 1, par. (3), and text Commission on the work of of Draft Article 2. its 50th session, supra note 60, par. 77. [97] Report of the International Law [61] ILC First Reading Draft Commission on the work of Articles on Diplomatic its 50th session, supra note Protection, supra note 60, 13, par. 77. commentary to Draft Article 2, par. (2). [98] ILC First Reading Draft Articles on Diplomatic (p. 25-26 Body of Vinuya) Protection, supra note 2, commentary to Draft Article 2, par. (2). (p. 400 of Albornoz) 4. Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision under which States would be internationally obliged to exercise diplomatic protection in favour of their nationals injured abroad by grave breaches to their jus cogens norms, if the national so requested and if he/she was not afforded direct access to an international tribunal.[116 [116] The proposed article read as follows: "Article [4] [62] Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision under which States would be internationally obliged to exercise diplomatic protection in favor of their nationals injured abroad by grave breaches to jus cogens norms, if the national so requested and if he/she was not afforded direct access to an international tribunal. The proposed article reads as follows:

1. Unless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State. 2. The state of nationality is relieved of this obligation if: (a) The exercise of diplomatic protection would seriously endanger the overriding interests of the State and/or its people ; (b) Another State exercises diplomatic protection on behalf of the injured person; (c) The injured person does not have the effective and dominant nationality of the State. States are obliged to provide in their municipal law for the enforcement of this right before a competent domestic court or other independent national authority." Dugard, J. First report on diplomatic protection, supra note 13, par. 74. (p. 404 of Albornoz)

Article [4] 1. Unless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State. 2. The state of nationality is relieved of this obligation if: (a) The exercise of diplomatic protection would seriously endanger the overriding interests of the State and/or its people ; (b) Another State exercises diplomatic protection on behalf of the injured person; (c) The injured person does not have the effective and dominant nationality of the State. States are obliged to provide in their municipal law for the enforcement of this right before a competent domestic court or other independent national authority." Special Rapporteur John Dugard, appointed in 1999, First Report on Diplomatic Protection, par. 74 (UN Doc A/CN.4/506 (March 7, 2000) and Corr. 1 (June 7, 2000) and Add. 1 (April 20, 2000). (p. 26, footnote 62 of Vinuya)

behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State. 2. The State of nationality is relieved of this obligation if: (a) The exercise of diplomatic protection would seriously endanger the overriding interests of the State and/or its people; (b) Another State exercises diplomatic protection on behalf of the injured person; (c) The injured person does not have the effective and dominant nationality of the State. 3. States are obliged to provide in their municipal law for the enforcement of this right before a competent domestic court or other independent national authority. Source: Special Rapporteur on Diplomatic Protection, First Rep. on Diplomatic Protection, Intl. Law Commn, UN Doc. A/CN.4/506, at 27, par. 74 (7 March 2000) (by John R. Dugard). 456. The Special Rapporteur recognized that he had introduced article 4 de lege ferenda.

5.

the proposal was not accepted by the ILC, as "the question was still not ripe for treatment" because

[62] the proposal was not accepted by the ILC, as "the question was still not ripe for treatment" because

"the State practice and their opinio juris still hadnt evolved in such direction."[120] [120] Official Records of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131. (p. 405 of Albornoz)

"the State practice and their opinio juris still hadnt evolved in such direction." Official Records of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131. (p.26, footnote 62 of Vinuya)

As already indicated, the proposal enjoyed the support of certain writers, as well as of some members of the Sixth Committee and of ILA; it even formed part of some constitutions. It was thus an exercise in the progressive development of international law. But the general view was that the issue was not yet ripe for the attention of the Commission and that there was a need for more State practice and, particularly, more opinio juris before it could be considered. Note: p. 131 of the Report does not refer to the topic of diplomatic protection. Rather, the heading of the page reads "Other Decisions and Conclusions of the Commission." Source: Rep. of the Intl. Law Commn, 52nd Sess., 1 May - 9 June and 10 July 18 August 2000, U.N. Doc. A/55/10 at 78-79, par. 456; GAOR, 55th Sess., Supp. 10 (2000).

6.

...some States have, indeed, incorporated in their municipal law a duty to exercise diplomatic protection in favor of their nationals. Various other States have also included such a "duty to exercise diplomatic protection"

[62] some States have, indeed, incorporated in their municipal law a duty to exercise diplomatic protection in favor of their nationals. (Dugard identifies this "obligation to exist in the Constitutions of Albania, Belarus, Bosnia

80. Constitutional provisions in a number of States recognize the right of the individual to receive diplomatic protection for injuries suffered abroad. These include: Albania, Belarus, Bosnia and Herzegovina,

under their domestic laws,[130 ]but their enforceability is also, to say the least, questionable (in many cases there are not even courts competent to review the decision).

and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, [130] Dugard identifies this Russian Federation, Spain, the former Yugoslav "obligation to exist in the Republic of Macedonia, Constitutions of Albania, Turkey, Ukraine, Viet Nam Belarus, Bosnia and and Yugoslavia, albeit with Herzegovina, Bulgaria, Cambodia, China, Croatia, different reaches. J. Estonia, Georgia, Guyana, Dugard, First Report on Hungary, Italy, Kazakhstan, diplomatic protection, supra note 13, par. 80.) Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic (p. 26, footnote 62 of of Korea, Romania, Vinuya) Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet Nam and Yugoslavia, albeit with different reaches. J. Dugard, First Report on diplomatic protection, supra note 13, par. 80. (p. 406 of Albornoz) 7. but their enforceability is also, to say the least, questionable (in many cases there are not even courts competent to review the decision). Moreover, their existence in no way implies that international law imposes such an obligation,[131] simply suggesting "that certain States consider diplomatic protection for their nationals abroad to be desirable."[132 [131] ILC First Reading Draft Articles on Diplomatic Protection, supra note 2, Commentary to Draft [62] ..., but their enforceability is also, to say the least, questionable (in many cases there are not even courts competent to review the decision). Moreover, their existence in no way implies that international law imposes such an obligation, simply suggesting "that certain States consider diplomatic protection for their nationals abroad to be desirable" (ILC First Reading Draft Articles on Diplomatic Protection, supra note 2, Commentary to Draft Article 2, par (2)).

Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary, Italy, Kazakhstan, Lao Peoples Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet Nam and Yugoslavia. Source: Special Rapporteur on Diplomatic Protection, First Rep. on Diplomatic Protection, Intl. Law Commn, UN Doc. A/CN.4/506, at 30, par. 80 (7 March 2000) (by John R. Dugard).

(2) A State has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so. The internal law of a State may oblige a State to extend diplomatic protection to a national,[29] but international law imposes no such obligation. The position was clearly stated by the International Court of Justice in the Barcelona Traction case: A proposal that a limited

Article 2, par (2). This was (p. 26, footnote 62 of recognized expressly in the Vinuya) Barcelona Traction case, supra note 6. [132] Dugard, J. First report on diplomatic protection, supra note 13, par. 81. (p. 406-407 of Albornoz)

duty of protection be imposed on the State of nationality was rejected by the Commission as going beyond the permissible limits of progressive development of the law.[31] Source: Commentary to the Text of the Draft Articles on Diplomatic Protection Adopted by the Commission on First Reading, Rep. of the Int'l. Law Commn, 56th Sess., 3 May-4 June and 5 July-6 August 2004, U.N. Doc. A/59/10 at 28, par. 60; GAOR, 59th Sess., Supp. 10 (2004).

TABLE E: Comparison of Elizabeth Prochaskas article, Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada,6 and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Elizabeth Prochaska, Testing the Limits of Diplomatic Protection: Khadr v. The Prime Minister of Canada (2009). Instead, Draft Article 19, entitled Recommended Practice, suggests that states should be encouraged to exercise diplomatic protection especially when significant injury occurred to the national. Drafted in soft language, the Article does not purport to create any binding obligations on the state.

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. International Source Being Analyzed By Prochaska

[62] Official Records of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the work of its 52nd session, p. 131. Instead, Draft Article 19, entitled Recommended Practice,' suggests that states should be encouraged to exercise diplomatic protection especially when significant injury occurred to the

Note: The Report of the International Law Commission on the Work of its Fifty-Second Session, and the Special Rapporteurs First on Diplomatic Protection, which are the nearest in location and in context to the passage, does not contain a discussion on Draft Article 19. See pp.

(p. 397 of Prochaska)

national. Drafted in soft language, the Article does not purport to create any binding obligations on the state. (Footnote 62 of Vinuya)

72-85 and 27-34 respectively.

TABLE F: Comparison of Larry Nikschs Report, Japanese Militarys Comfort Women, 10 April 2006,7 and the Supreme Courts Decision in Vinuya et. al. v. Executive Secretary, G.R. No. 162230, 28 April 2010. The Allegedly Copied Work Larry Niksch, Japanese Militarys Comfort Women, 10 April 2006. 1. The Asian Womens Fund announced three programs for former comfort women who applied for assistance: (1) an atonement fund that paid two million yen (approximately $20,000) to each former comfort woman; (2) medical and welfare support programs for former comfort women, paying 2.5-3 million yen ($25,000- $30,000) for each former comfort woman; and (3) a letter of apology from the Japanese Prime Minister to each recipient woman.[8] [FN8]. From the Asian Womens Fund website, March 16, 2006. (paragraph 11 of Niksch) 2. ...As of March 2006, the ...As of March 2006, the Asian Womens Fund AWF provided 700 provided 700 million yen million yen In order to fulfill its moral responsibility in all sincerity, the Japanese government decided to

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical and welfare support programs, paying 2.5-3 million ($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to each woman. (p. 17, Body of Vinuya) Source Being Used By Niksch

The projects of atonement involved providing former comfort women with 2 million yen per person as atonement money donated by Japanese citizens, delivering a letter of apology from the Japanese Prime Minister, and offering goods and services under medical and welfare support projects financed by the Japanese government. Note: The passage in Vinuya does not contain a footnote. The following source is the nearest citation that may reasonably be taken as within the context of the discussion in Vinuya. http://web.archive.org/web/20060 301213211/http://www.awf.or.jp/e nglish/project_atonement.html

(approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380 million yen (approximately $3.8 million) in Indonesia; and 242 million yen (approximately $2.4 million) in the Netherlands. [9] (paragraph 12 of Niksch)

(approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; 380 million yen (approximately $3.8 million) in Indonesia; and 242 million yen (approximately $2.4 million) in the Netherlands. (p. 17, Body of Vinuya)

disburse about 700 million yen over a five-year period for medical and welfare support projects aiding former comfort women in the Philippines, the Republic of Korea and Taiwan. ... Note: The passage in Vinuya does not contain a footnote. The following source is the nearest citation that may reasonably be taken as within the context of the discussion in Vinuya. http://web.archive.org/web/20060 301213211/http://www.awf.or.jp/e nglish/project_atonement.html

3. On January 15, 1997 the Asian Womens Fund and the Philippine government signed a Memorandum of understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Philippine governments Department of Social Welfare and Development. (paragraph 19 of Niksch)

On January 15, 1997 the AWF and the Philippine government signed a Memorandum of Understanding for medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the Department of Social Welfare and Development. (p. 17, Body of Vinuya)

The government of the Philippines and the Asian Womens Fund signed a Memorandum of Understanding on January 15, 1997. The Philippine governments Department of Social Welfare and Development implemented the projects over a period of five years. Note: The passage in Vinuya does not contain a footnote. The following source is the nearest citation that may reasonably be taken as within the context of the discussion in Vinuya. http://web.archive.org/web/20060 301213211/http://www.awf.or.jp/e nglish/project_atonement.html

TABLE G: Comparison of James Ladinos article, Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121 and the Supreme Courts Decision in Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010.

The Allegedly Copied Work James Ladino, Ianfu: No Comfort Yet for Korean Comfort Women and the Impact of House Resolution 121, 15 Cardozo J.L. & Gender 333 (2009). 1 . In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan ("KCWS"), submitted a petition to the United Nations Human Rights Commission ("UNHRC"), asking for their assistance in investigating crimes committed by Japan against Korean women and pressuring Japan to pay reparations to the women who had filed lawsuits.[96] The UNHRC formally placed the issue on its agenda and appointed Radhika Coomaraswamy as the issues special investigator.[97] Issued in 1996, the UNHRCs report reaffirmed Japans guilt in forcing Korean women to act as sex slaves for the imperial army.[98] [96] Soh, supra note 7 [Chunghee Sarah Soh, The Korean "Comfort Women": Movement for Redress, 36 Asian Survey 1226,], at 123435. [97] Id. at 1226. [98] Id. (p. 344 of Ladino) 2 . The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of Asian women, human rights

The Decision Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010. Source Being Analyzed and/or Used by Ladino

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed by Japan against Korean women and seeking reparations for former comfort women.[29] The UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women to act as sex slaves for the imperial army, and made the followingrecommendations:

...In her report to the U.N. Human Rights Commission, Radhika Coomaraswamy, the U.N. special investigator into violence against women, concluded that Japan must admit its legal responsibility.... ...

...Lee Hyo-chae, as a co-chair of the KCWS submitted a petition to the U.N. Human Rights Commission, dated March 4, 1992, requesting that the Commission investigate Japanese atrocities committed against Korean women during World War Two, and help pressure the Japanese government to pay reparations to individual women who have filed suit. The UNHRC responded by placing the issue [29] Soh, The Comfort Women on the official agenda for its Project, San Francisco State August 1992 meeting in University (1997-2001), Geneva. http://online.sfsu.edu/~soh/co mf ortwomen.html, at 1234-35. Source: (p. 9-10, Body of Vinuya) Chunghee Sarah Soh, The Korean "Comfort Women": Movement for Redress, 36 Asian Survey 1226, 1234-35 (1996). From December 8 to 12, 2000, a peoples' tribunal, the Women's International War Crimes Tribunal 2000, sat in Tokyo, Japan. It was

The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of Asian women and human

organizations, and supported by an international coalition of non-governmental organizations ("NGOs").[101] First proposed in 1998, the WIWCT convened in Tokyo in 2000 to discuss the issue of comfort women.[102] Specifically, the WIWCT aimed to "adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against women."

rights organizations, supported by an international coalition of non-governmental organizations.[31] First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against women." [31] Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335 (2001).

established to consider the criminal liability of leading highranking Japanese military and political officials and the separate responsibility of the state of Japan for rape and sexual slavery as crimes against humanity arising out of Japanese military activity in the Asia Pacific region in the 1930s and 1940s. ... The tribunal arose out of the work of various women's nongovernmental organizations (NGOs) across Asia. Source: Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335 (2001).

[101] Christine M. Chinkin,Womens International Tribunal on Japanese Sexual (p. 12, Body of Vinuya) Slavery, 95 Am. J. Intl. L. 335 (2001) [102] Violence Against Women in War-Network Japan, What is the Womens Tribunal? http.//www1.jca.apc.org/vawwnet japan/English/womenstribunal 200 0/whatstribunal.html (last visited Oct. 16, 2008). (p. 345 of Ladino) 3 . A large amount of evidence was presented to the tribunal for examination. Sixty-four former comfort women from Korea and other surrounding territories in the Asia-Pacific region testified before the court.[104] Testimony was also presented by historical scholars, international law scholars, and two former Japanese soldiers.[105] Additional evidence was submitted by the prosecution teams of ten different countries, including: North and

[32] A large amount of evidence was presented to the tribunal for examination. Sixtyfour former comfort women from Korea and other surrounding territories in the Asia-Pacific region testified before the court. Testimony was also presented by historical scholars, international law scholars, and two former Japanese soldiers. Additional evidence was submitted by the prosecution teams of ten different countries, including: North and

Prosecution teams from ten countries presented indictments.[6] North and South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Two lead prosecutors (Patricia Viseur Sellers[7] and Ustinia Dolgopol[8]) joined the separate-country prosecutors and presented a common indictment. Source:

South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands.[106]

South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Id. [Chinkin] at 336.

Chinkin, Womens International Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335, 336 (2001).

[104] Id. [Violence Against Women in War-Network (p. 12, footnote 32 of Vinuya) Japan, What is the Women's Tribunal?, http://www1.jca.apc.org/vawwnet japan/english/womenstribunal 200 0/whatstribunal.html (last visited Oct. 16, 2008).] [105] Id. [106] Chinkin, supra note 101, at 336. (p. 345 of Ladino) The preliminary judgment indicated that the judges had found Emperor Hirohito guilty of the charges on the basis of command responsibility, that he knew or should have known of the offenses. The judges also indicated that they had determined Japan to be responsible under international law applicable at the time of the events for violation of its treaty obligations and principles of customary international law relating to slavery, trafficking, forced labor, and rape, amounting to crimes against humanity. What was the value of this exercise? Lacking legal authority, was the tribunal no more than a mock trial of little concern to serious international lawyers? Source: Chinkin, Womens International

After examining the evidence for more than a year, the tribunal issued its final verdict on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of women.[107] Although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was organized by private citizens. [107] Violence Against Women in War-Network Japan, supra note 102. (p. 345 of Ladino)

After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of women.[32] It bears stressing, however, that although the tribunal included prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was organized by private citizens. [32] Id. [Chinkin] at 336. (p. 12, Body of Vinuya)

Tribunal on Japanese Sexual Slavery, 95 Am. J. Intl. L. 335 (2001). 4 . On January 31, 2007, United States Representative Michael Honda of California, along with six co-sponsor representatives, introduced House Resolution 121. The resolution called for Japanese action in light of the ongoing struggle for closure by former comfort women. The House of Representatives formally passed the resolution on July 30, 2007.[110] The resolution also makes four distinct demands: [110] Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II Exploitation of "Comfort Women" (Jan. 31, 2007), available at http://www.house.gov/list/ press/ca15_honda/ COMFORTWOMEN.html. (p. 346 of Ladino) On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor representatives, introduced House Resolution 121 which called for Japanese action in light of the ongoing struggle for closure by former comfort women. The Resolution was formally passed on July 30, 2007,[33] and made four distinct demands: [33] Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II Exploitation of "Comfort Women" (January 31, 2007). (p. 12, Body of Vinuya) Today, Representative Michael M. Honda (CA 15) introduced a bipartisan resolution before the U.S. House of Representatives calling on the government of Japan to formally and unambiguously apologize for and acknowledge the tragedy that comfort women endured at the hands of its Imperial Army during World War II. The resolution is cosponsored by: Representatives Edward R. Royce (CA 40), Christopher H. Smith (NJ - 4), Diane E. Watson (CA - 33), David Wu ()R - 1), Phil Hare (IL - 17), and Delegate Madaleine Bordallo (GU). Source: Press Release of Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II Exploitation of "Comfort Women," 31 Jan. 2007, available at http://www.house.gov/list/ press/ca15_honda/ COMFORTWOMEN.html The Resolution was formally passed on July 30, 2007,[33] and made four distinct demands: [I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a Resolved, That it is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces coercion of young

5 .

The resolution also makes four distinct demands: [I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces'

coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the "comfort women."[111 111] H.R. Res. 121, 110th Cong. (2007) (enacted). (p. 346 of Ladino)

clear and unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the "comfort women."[34 34] H.R. Res. 121, 110th Cong. (2007) (enacted). (p. 12, Body of Vinuya)

women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) should have this official apology given as a public statement presented by the Prime Minister of Japan in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial Armed Forces never occurred; and (4) should educate current and future generations about this horrible crime while following the recommendations of the international community with respect to the "comfort women". Source cited: H.R. Res. 121, 110th Cong. (2007) (enacted), available at http://www.gpo.gov/fdsys/pkg/ BILLS110hres121ih/pdf/BILLS110hres121ih.pdf (U.S.) A resolution on the 'comfort women' (sex slaves) used by Japan in World War II calls for a change of official attitudes in modern-day Japan, a right for survivors or families to apply for compensation and measures to educate people about these historical events.

6 .

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to House Resolution 121.[130] Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to House Resolution 121.[35] Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3)

compensation; and (3) unabridged education of the past.[132] The resolution also stresses the urgency with which Japan should act on these issues, stating: "the right of individuals to claim reparations against the government should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized, taking into account the age of the survivors."[133]

unabridged education of the past. The resolution also stressed the urgency with which Japan should act on these issues, stating: "the right of individuals to claim reparations against the government should be expressly recognized in national law, and cases for reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized, taking into account the age of the survivors."

Call for formal acknowledgment of responsibility by government Legal obstacles to compensation must be removed Education about the past Source cited: European Parliament, Human rights: Chad, Women's Rights in Saudi Arabia, Japan's Wartime Sex Slaves, (17 Dec. 2007) available at http://www.europarl.europa.eu/ sides/getDoc.do?language= EN&type=IMPRESS&reference= 20071210BRI14639&secondR ef= ITEM-008-EN

[35] European Parliament, [130] European Parliament, Human rights: Chad, Women's Human rights: Chad, Women's Rights in Saudi Arabia, Rights in Saudi Arabia, Japan's Wartime Sex Slaves, Japan's Wartime Sex Slaves, Dec. 17, 2007, Dec. 17, 2007, http://www.europarl.europa.eu http://www.europarl.europa.eu / / sides/getDoc.do?language=E sides/getDoc.do?language=E N& type=IMN& type=IMPRESS&reference= PRESS&reference= 20071210BRI14639&secondR 20071210BRI14639&secondR ef= ITEM-008-EN. ef= ITEM-008-EN. (p. 13, Body of Vinuya) [132] Id. [133] Id. (p. 360 of Ladino) 7 . The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of thousands of women into sexual slavery, and to restore references in Japanese textbooks to its war crimes.[134] The Dutch parliament's resolution simply The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's resolution demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced hundreds of thousands of women into sexual slavery, and to restore references in Japanese textbooks to its war crimes.[36] The Dutch parliament's resolution calls

Note: On the issue of comfort women, the website only refers to the attitude and reaction of the following governments: Taiwan, South Korea, North Korea, Philippines, China, Indonesia, Malaysia, and Japan. Source cited: http://taiwan.yam.org.tw/wome

calls for the Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.[135] [134] The Comfort Women--A History of Trauma,

for the Japanese government nwe to uphold the 1993 declaration b/conf_women/index_e.html of remorse made by Chief Cabinet Secretary Yohei Kono. [36] The Comfort Women--A History of Trauma,

http://taiwan.yam.org.tw/ http:// taiwan.yam.org.tw/ womenweb/conf_women/ womenweb/conf_women/ index_e.html. (last visited Mar. index_e.html. 26, 2009). (p. 13, Body of Vinuya) [134] Id. (p. 360 of Ladino) Violations of Rules Against Plagiarism in the Vinuya Decision Below are violations of existing rules against plagiarism as can be found in the Vinuya Decision, in addition to violations earlier enumerated in my Dissent: A.1 A passage from the article of Criddle and Fox-Decent was copied verbatim, including the footnote. There are no quotation marks to indicate that this important conclusion from the article and the example to illustrate it, which were discussed in the corresponding footnote, are not the ponentes own. No attribution to Criddle and Fox-Decent was made. A.2 Similar to A.1, Criddle and Fox-Decents conclusion was copied word for word, including the corresponding footnote, which was enclosed by parentheses and placed immediately after the sentence to which it corresponds. No attribution to Criddle and Fox-Decent was made. A.3 Similar to A.1 and A.2, this sentence from the article was copied verbatim, including its corresponding footnote. No attribution to Criddle and Fox-Decent was made. B.1 Save for a few words which were intentionally rearranged, the entire paragraph was lifted verbatim from Elliss discussion on rape as an international crime. Two citations of cases from Ellis were omitted. No attribution to Ellis was made. B.2 Elliss identification of Article 3 of the 1949 Geneva Conventions as a general authority on rape as a violation of the laws of war, and his summation thereof, was lifted word for word. His footnote was also copied, including the intratext reference "supra note 23," enclosed in parentheses and inserted after the corresponding text. No attribution to Ellis was made. B.3 Elliss summary and analysis of Article 27 of the Fourth Geneva Convention was lifted word for word. No attribution to Ellis was made. B.4 Elliss conclusion regarding Protocol I of the Geneva Convention was appropriated, without any attribution to Ellis. Elliss footnote was again copied. No attribution to Ellis was made.

C.1 McCorquodales analysis of individual claims within the international legal system was copied word for word and inserted after the introductory clause "In the international sphere" in Vinuya. The footnote McCorquodale appended to his analysis of individual claims (i.e. the sentences copied in C.1.) is not present. No attribution to McCorquodale was made. C.2 This item refers to the footnote attached to the copied sentence in C.1. It is composed of two instances of copying stitched together: two sentences of McCorquodale, taken from the paragraph directly preceding his analysis of individual claims in the international legal system, and the footnote corresponding to the PCIJ Decision quoted in the second of the said two sentences. No attribution to McCorquodale was made. C.3 The conclusion Okowa reached was copied in footnote 63 of Vinuya, but Okowas reference to the cases she cited in her analysis was omitted and the context of her conclusion (on the current standing of general international law with regard an enforceable legal duty of diplomatic protection) was removed. No attribution to Okowa was made. C.4 McCorquodales discussion of the case Abassi v. Secretary of State was copied without any citation of his essay or the international law book in which it was published. No attribution to McCorquodale was made. C.5 The order of sentences were reversed, but the conclusion in Okowas essay was copied, and as well as her discussion of the case Kaunda v. President of the Republic of South Africa. No attribution to Okowa was made. D.1 Albornozs summary and analysis was copied word for word in the body of the Decision on page 24. No indication was given that this was not the ponentes original analysis, and no attribution to Albornoz was made. D.2 The elucidation of Albornoz regarding what she calls the traditional view on the discretion of states in the exercise of diplomatic protection was copied into footnote 57 of the Vinuya Decision. Albornozs citation of Borchard was used as a reference in the same footnote, but Albornoz was bypassed completely. D.3 Albornozs summation of the ILCs First Reading Draft Articles on diplomatic protection was copied with some modifications: the second half of the first sentence from Albornoz was removed and instead replaced with "fully support this traditional view" in an apparent effort to link this summary to the previous instance of copying (table entry D.2.). Minor edits were made to Albornozs summary to streamline the flow of the second copied sentence. No attribution to Albornoz was made. D.4 Albornozs summation of Dugards proposal was lifted word for word and used in footnote 62 ofVinuya. The footnote Albornoz attached to this summation, a quotation of Albornozs cited source, was inserted directly after the copied summation. No attribution to Albornoz was made. D.5 The conclusion reached by Albornoz regarding the rejection of Dugards proposal was copied exactly, even with regard to the portions of the Official Records of the General Assembly that Albornoz quoted. No attribution to Albornoz was made. D.6 The major part of a sentence from Albornoz was copied and attached to the transition phrase "In addition" to continue the pastiche of copied sentences in footnote 62 of Vinuya. The footnote of Albornoz regarding Dugard was inserted immediately after and enclosed in parentheses. Note that

the inline text citation, "supra note 13, par. 80" in Albornozs footnote 130 was copied as well. No attribution to Albornoz was made. D.7 Continuing from the instance of copying in D.6., the second half of a sentence in Albornoz was used as what is apparently an incomplete sentence (beginning with: ", but their enforceability...") in footnote 62 of Vinuya. The next sentence was also copied, and its corresponding footnote enclosed in parentheses and inserted immediately after it. While the Decision cites one of the same sources Albornoz cited (ILC First Reading Draft Articles on Diplomatic Protection), no attribution is made to Albornoz for the excerpt, or to Dugard, whom Albornoz cited for the quoted portion. E.1 An excerpt from the third paragraph of Prochaska is reproduced verbatim in footnote 62 of page 26 of the Decision. There were no quotation marks or attribution to Prochaska to indicate that such was not theponentes analysis, but Prochaskas. F.1 A sentence from paragraph 11 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made. F.2 An excerpt from paragraph 12 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made. F.3 An excerpt from paragraph 19 of Niksch was reproduced verbatim without quotation marks in page 17 of the body of the Decision. No attribution to Niksch was made. G.1 An excerpt from page 344 of Ladino was reproduced without quotation marks in pages 9 to 10 of the body of the Decision. The phrase "women who had filed" was changed to "comfort women." G.2 An excerpt from page 345 of Ladino was reproduced without quotation marks in page 12 of the body of the Decision. The two sentences in the footnote from Ladino were combined, but the words were reproduced verbatim. G.3 An excerpt from page 345 of Ladino is reproduced verbatim in page 12 of the body of the Decision. Part of Ladinos discussion was reproduced verbatim in footnote 32 of the Vinuya Decision, with no attribution to Ladino. G.4 The first part of the paragraph in page 345 of Ladino was reproduced verbatim. However, the latter part of Ladinos explanation, (stating that while the judgment against Japan was not legally binding, it still "cast Japan in the shadow of moral reproach") was omitted. There was no attribution to Ladino. G.5 An excerpt from page 346 of Ladino, along with two footnotes, was reproduced verbatim in page 12 of the Decision. No attribution to Ladino was made. G.6 Ladinos discussion in page 350 and the corresponding footnotes were reproduced verbatim in page 13 of the Decision. No attribution to Ladino was made. B. The Process of the Commission of Plagiarism in the Vinuya Decision A careful reading of the Vinuya Decision reveals that it is unlike other decisions issued by this Court, except perhaps for the case of Ang Ladlad LGBT Party v. Commission on Elections, which Justice del Castillo likewise penned. The footnotes in Vinuya read like those found in theses of international law scholars, where one discursive footnote can be so extensive as to occupy three-fourths of a

page (see footnotes 62, 63, and 65). An honest researcher for a Philippine judge, after painstakingly developing a perspective on an international legal issue by reading the works of scholars who have documented the debate, would deliberately refer to the works of such scholars, and not transform their works into his own. Justice del Castillos researcher not only contends that accidental deletion is the sole reason for the missing footnotes, but also that their office subsequently went over the Decision "sentence by sentence" and concluded that no plagiarism was committed at all. However, the rearrangement of the sentences lifted from the original work, the mimicking of the original works use of footnotes, the subsequent back and forth copying and pasting of such footnotes these acts belie mere negligence. The following analysis shows objective plagiarism viewed through three lenses:extent, deliberateness, and effect. The massiveness and frequency with which instances of unattributed copying occur in Vinuya highlight the extent of the plagiarism. Clever transpositions of excerpts to make them flow according to the researchers transition phrases are clearly devices of a practiced plagiarist, which betray the deliberateness of every single act. The plagiarism inVinuya will also be scrutinized on the basis of its effect, especially in light of its commission in a judicial decision. The rationale for such a thematic presentation will then be discussed in a succeeding section, which deals with evaluating plagiarism. 1. The extent of unattributed copying belies inadvertence. In the tables outlined above, as well as in the analysis in my Dissent dated 12 October 2010, it can be seen that the researcher of Justice del Castillo failed to make the necessary attribution twentythree (23) times in the body of theVinuya Decision; the works whose texts were used without attribution include several copyrighted journal articles, essays from a book on international law, and one congressional report of the United States. There were thirty-six (36) missing citations in the footnotes, including twelve (12) citations missing from footnote 65 alone. This adds up to a total of fifty-nine (59) missing citations. The sheer number of missing citations is related to the length and volume of the footnotes and discussions, some of which Justice del Castillo himself admitted to be unnecessary. The quantity of text copied without attribution is most concentrated in pages 12 to 13, which deal with actions taken in the pursuit of justice for the comfort women, and in pages 24 to 32, which appear under the section heading The Philippines is not under any international obligation to espouse petitioners claims. In the latter section, the discussion and analysis appearing on pages 24 (insofar as the section after the start of the international law discussion is concerned), 28 and 31 in particular would be significantly impaired were the unattributed portions of texts to be removed: there would be no words left in the instance of page 24; the entirety of the discursive footnote on page 28 would be reduced to one sentence and its attendant citations; three sentence fragments, and no footnotes, would remain on page 31. In pages 24 to 32, out of a total of thirteen (13) discursive footnotes, eleven (11) of these are comprised wholly of material copied without attribution, and yet another one footnote 69 contains text that was copied without attribution as well. The writer of the Vinuya Decision displayed meticulous attention to detail in reproducing the citations to international judicial decisions, publications, and other such references in these footnotes citations that originally appeared in the copied works but completely bypassed the copied works themselves, thereby appropriating the analysis, processing, and synthesizing of information, as well as the words, of the writers whose works were copied.

On its face, the sheer volume of portions copied, added to the frequency with which citations to the plagiarized works were omitted while care was taken to retain citations to the sources cited by the plagiarized works, reveal that the plagiarism committed cannot logically be anything other than deliberate. 2. Systematic commission of plagiarism demonstrates deliberateness. In pages twelve (12) to thirteen (13) of Vinuya, sentences from the body of Ladinos article were interspersed with Ladinos footnotes, without a single attribution to Ladino (please refer to Table G). Sentences from Ladinos article were copied into footnote 32 of Vinuya, while the immediately succeeding sentence was again copied to form part of the body of Vinuya. The cutting of sentences from Ladinos work and the patching together of these pieces to form a mishmash of sentences negate the defense of inadvertence, and give the reader the impression that the freshly crafted argument was an original creation. The work of Criddle and Fox-Decent was subjected to a similar process. This process is dissected in the following list of instances ordered according to how they appear in pages 31 to 32 of the body of the Decision: a. Detailed analysis of patchwork plagiarism in the body of Vinuya, pp. 31-32: 1. Page 31, par. 2: Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.[72] [72] Verdross argued that certain discrete rules of international custom had come to be recognized as having a compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of international jus cogensencountered skepticism within the legal academy. These voices of resistance soon found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and credibility following the Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship during the period 1945-69 and reporting that "about eighty per cent [of scholars] held the opinion that there are peremptory norms existing in international law"). This sentence, together with footnote 72 in Vinuya, is part of one continuous discussion by Criddle and Fox Decent, and copied verbatim. The two authors rightfully attributed the historical data to Lauri Hannikainen, but the conclusion on established jus cogens principles is wholly their own. 2. Page 31, par. 2: The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that certain international norms had attained the status of jus cogens[74] The first sentence and its subsequent clause are lifted verbatim from the article. Footnotes 73 and 74 are Criddle and Fox-Decents analysis of how international "minimum requirements" form evidence of jus cogens. The paragraph was broken down, then rearranged in Vinuya. 3. Page 31, par. 2: Though there was a consensus that certain international norms had attained the status of jus cogens,[74] the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.

Aside from copying the first clause in the sentence, which forms part of the premise, the conclusion of Criddle and Fox-Decent was likewise copied. 4. Page 32, par. 1: After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens."[75] After copying the sentence and footnote in No. 4 above, three sentences were omitted from the article, then this sentence in No. 5 was also copied. In the body of the work, the two sentences immediately following this statement pertaining to the conclusion of the International Law Commission were again omitted. 5. Page 32, par. 1: In a commentary accompanying the draft convention, the ILC indicated that "the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals."[76] This sentence was conjoined with the sentence above; footnotes 75 and 76 were also copied. The net effect is that this paragraph was spliced together, sentence by sentence, from Criddle and FoxDecents work. A similar method of splicing was used extensively in the footnotes of the Decision as well. It is most evident in footnote 65, the longest discursive footnote in Vinuya. This portion copied heavily from the article of Dr. Mark Ellis entitled "Breaking the Silence: Rape as an International Crime." To illustrate, the first paragraph of footnote 65 is broken down and scrutinized by sentence, following the original sequence in the Decision. b. Detailed analysis of patchwork plagiarism in paragraph 1, footnote 65 of Vinuya: 1. Sentences 1 and 2: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. These are the opening sentences from the second paragraph on page 227 of the journal article. Ellis cites the treaty between the United States and Prussia as his own example, in a footnote. In Vinuya, this particular citation is copied, enclosed in parentheses, and became the sixth and seventh sentences of footnote 65. 2. Sentence 3: But modern-day sensitivity to the crime of rape did not emerge until after World War II. This is the sixth sentence in the same paragraph in Ellis article as discussed above. It is transposed verbatim, and became the second sentence in Vinuya. 3. Sentences 4 and 5: In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. The clauses "After World War II, when the Allies established the Nuremberg Charter" was deleted. This particular sentence is Ellis own conclusion regarding the "Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis," but there was no attribution to Ellis, only a citation of the agreement, along with Elliss other footnotes, at the end of the paragraph.

4. Sentences 6 and 7: (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children "shall not be molested in their persons." The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties & Other Int'l Agreements Of The U.S. 78, 85. This is the citation originally corresponding to the first and second sentences on page 227 of Elliss article. This portion was copied in Vinuya, this time placed at the end of the paragraph and enclosed in parentheses. 5. Sentence 8: The 1863 Lieber Instructions classified rape as a crime of "troop discipline." Originally the second sentence in Elliss paragraph, this was transposed to the eighth. Its corresponding footnote in Ellis was lifted verbatim, enclosed in parentheses, then inserted into the paragraph in Vinuya, as the ninth sentence: "(Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Intl. L. 219, 224)." 6. Sentence 10: It specified rape as a capital crime punishable by the death penalty. Originally the fourth sentence in Ellis article, this was transposed, and its corresponding footnote was copied: "(Id. at 236)." 7. Sentence 11: The 1907 Hague Convention protected women by requiring the protection of their "honour." The sentence was copied, and its corresponding footnote was lifted verbatim, enclosed in parentheses, and placed at the end of the paragraph. Elliss attribution to the Yale Law website where the pertinent law may be found was omitted, leaving only the following: ("Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected." Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, "Affirmation of the Principles of International Law recognized by the Charter of the Nrnberg Tribunal"; General Assembly document A/64/Add.1 of 1946". 8. Sentence 13: See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. This is originally Elliss citation, used to support his observation that there was no express mention of "rape" in the Nuremberg Charter. It was enclosed in parentheses and relegated to the end of the paragraph in Vinuya. 9. Sentence 14: Article 6(c) of the Charter established crimes against humanity as the following: CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

This was lifted from page 227 of Elliss work. Pages 227 to 228 of the said work, pertaining to the discussion on rape were substantially copied. Insertions were made for Elliss own footnotes. The conscious thought required for the act of cutting and pasting the original authors footnotes onto the precise spot where the copied sentences ended contradicts the account of inadvertence. There is consistent correspondence between the sentences copied to the footnote copied. In the example above, the act of encapsulating Ellis footnotes in parentheses show further that in Vinuya there was a conscious appropriation of Elliss sources in a usage that is substantially similar to what appears in his article. This allegedly inadvertent copying of Elliss footnotes occurred no less than twelve (12) times in footnote 65 alone. 3. Research steps purportedly followed in the drafting of Vinuya cast doubt on inadvertence. The following is a recreation of the step-by-step research procedure followed by many offices in the research and crafting of judicial decisions. It is based on the account given by the researcher of the Vinuya Decision of her own experiences while working on the case. This detailed breakdown is made in order to show the exact number of actions which must be made in order to input a citation, if indeed it was intentionally inputted. A recreation of the steps necessary to delete a citation is also made to show that the aggregate number of actions needed to erase each and every citation missing in Vinuya is so high that the underlying cause could not have been mere inadvertence. Step 1: a. First, using an internet-based search engine, which could be a free search service like Googles, or a paid service like Westlaws, the researcher would have typed in key phrases like "erga omnes," "sexual slavery," or other such terms relevant to the subject matter. b. For some researchers, this is just a preliminary step, as they would then pick and choose which articles to read and which to discard. The researcher in Vinuya, however, claimed that she purposely read all the materials available through this search.8 Step 2: a. The search engine would have generated a list of documents containing the search terms and topics relevant to the subject matter. The search engine would also have linked the items on this list to the corresponding online locations where these documents may be accessed. b. In Vinuya, the researcher used the Westlaw legal research service (which is made available to offices of all the Justices), and perused the generated list.9 A possible item on this list would be the article entitled "Breaking the Silence: Rape as an International Crime," by one of the complaining authors, Dr. Mark Ellis. Step 3: The researcher would read articles from the generated list and identify the portions she planned to incorporate into the draft. For this example, she would have scrolled through the work of Mark Ellis and found the selection she wanted. The level of scrutiny invested into each of the chosen articles would vary; some researchers make cursory readings and incorporate as many portions from different works and authors as they can.

Step 4: a. The researcher can either save the articles in their entirety, or save the selections in one document. The researcher in Vinuya claimed that she did the latter and used the Microsoft Word program for this purpose. b. If the researcher chose to save only pertinent selections, then ideally the attributions would have to be made at his point. Now, this step is critical. I know of no software in the world, especially not Microsoft Word, that will generate the citation to the work of Ellis on its own, without the appropriate action of the user. An honest researcher would immediately copy and paste the citation references of Ellis into the copied portions, or type a reference or label in, even if it were only a short form placeholder of the proper citation. If she did neither, she may be sloppy, incompetent or downright dishonest. During the deliberations of the Ethics Committee, the researcher explained this crucial step: "So I would cut and paste relevant portions, at least portions which I find relevant into what turns out to be a large manuscript which I can then whittle and edit and edit further."10 Adhering to this account, there would be an additional step in the process: Step 5 If an existing draft or "manuscript" has already been created, the next step would be to incorporate the selections from the articles into the draft. This is a second opportunity to ensure that the proper attributions are made. If the researcher is diligent, she would already have tried to follow the correct form as prescribed by the Manual of Judicial Writing.11 If a "manuscript" or outline has already been formulated, then incorporating the selections would require her to be conscious that these ideas and arguments are not her own. The process ideally alerts any researcher that extraneous sources are being added. It allows her to make the following considerations: Does this portion sufficiently discuss the historical context of a particular conclusion? Do I need this literature as support for my arguments? Am I including it to support my arguments, or merely to mimic the authors? Corollarily, the researcher would initially assess if such argument made by the author is adequately supported as well. She would check the authors footnotes. In Vinuya, the copying of the footnotes was so extensive, such that it practically used the uncited works as blueprint for the Decisions footnotes. 4. The frequency of instances of missing citations and actions required for deletion betray deliberateness. To purposefully input citations would require many key strokes and movements of the computers "mouse." If the attributions had indeed been made already, then the deletions of such attributions would not simply happen without a specific sequence of key strokes and mouse movements. The researcher testified that the necessary attributions were made in the earlier drafts, but that in the process of cutting and pasting the various paragraphs, they were accidentally dropped. She makes it sound as if something like a long reference citation can just easily fall by the wayside. Not so. The reference required under the Manual of Judicial Writing for the work of Ellis reads like this: "Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Int'l L. 225 (2006-2007)."

The researcher in Vinuya explained that footnotes were deleted along with headings of certain portions, and with the deletion of the note reference mark in the body of the text, the citations in the documents footers disappeared also. For this scenario to happen with the same frequency as the number of missing citations, the following steps must have been followed: 1. First movement: Using hand and eye coordination, consciously move cursor to the location of target footnote and/or heading, using either the mouse or arrow keys. 2. Second movement: Select the "note reference mark" by highlighting the target footnote number. Note that unlike in normal characters or texts wherein a single press of the "delete" or "backspace" button would suffice, a footnote number must be highlighted before it can be deleted. This means that either the particular footnote and/or heading must have been "double-clicked" or it must have been specifically highlighted by a precise horizontal motion of the cursor while pressing on a mouse button both of which require two movements (either two "clicks", or a "click" and a "swipe"). 3. Third movement: Press "delete" or "backspace" key. Note that in the case wherein the note reference mark was not highlighted by a mouse movement, the "delete" or "backspace" key must have been pressed twice, as pressing it only once will merely highlight the note reference mark without deleting the same. Hence, even accommodating the explanation given by the researcher, at least four movements must have been accomplished to delete one footnote or reference. Multiply this with the number of references that were "dropped" or "missing," and you have a situation wherein the researcher accomplished no less than two hundred thirty-six (236) deliberate steps to be able to drop the fiftynine (59) citations that are missing in Vinuya. If by some chance the cursor happened to be at the precise location of the citations, and the citations were subsequently deleted by an accidental click of the mouse, this would still have necessitated a total of one hundred seventy seven (177) clicks. It is understandable if a researcher accidentally deleted one, two or even five footnotes. That a total of 59 footnotes were erased by mere accident is inconceivable. To make a conservative estimate, we can deduct the number of times that a footnote number in the body of the Decision could simply have been deleted inadvertently. Our analysis indicates that this could have happened a third of the time, or an estimate of twenty times, when short footnotes containing "supra" or "id." could have been easily forgotten or omitted. This would still have yielded sixty deliberate steps or movements, and would alert the researcher either that: 1) too much of the body comprises ideas which are not his own, or 2) too many of the sources in his "main manuscript" were getting lost. Subsequently, if more than half of the attributions in the International Law discussion went missing, the simple recourse would have been either to review his or her first draft, or simply delete his lengthy discursive footnotes precisely because he cannot remember which articles he might have lifted them from. On Microsoft Word features that alert the user to discrepancies in footnote deletions The researcher took pains to deliberately cut and paste the original sources of the author, thereby making it appear that she was the one who collated and processed this material. What she should have done was simply to cite the author from whom she took the analysis and summarization of the said sources in the first place. The latter would have been the simple, straightforward, not to mention honest path. Instead, the effect is that the Vinuya Decision also appropriated the authors analysis. Actually, it would have been easier to cite the authors copied work considering the availability of short citation forms commonly used as reference tools in legal articles such as "supra" or "id."

Microsoft Word may not have an automatic alarm each time a footnote or citation is deleted, but it does contain built-in features to help raise "red flags" to signal that a particular passage was copied, or is attached to a particular citation if indeed such citation exists. For example, the researcher in Vinuya, in describing her own process of drafting the Decision, stated that portions containing footnotes from the first Vinuya draft were lifted and transformed into the contents of a separate footnote. In short, during revisions of the draft, substantial footnoted portions which used to be in the body were relegated to footnotes. This does not result, however, in the automatic erasure of the original footnotes within the new footnote. A simple recreation of this process reveals that this "footnote within a footnote" retains a number symbol in superscript, albeit one altered due to the redundancy in the functionality of "footnotes within footnotes." Any reasonably prudent researcher would thus be alerted to the fact that something was amiss with the citations in that particular selection because the footnote would have abnormal numeric superscripts. This glaring abnormality in itself is a warning. Another notable feature is that when a cursor, as seen on the screen in an open document, is placed over a footnote reference mark, Microsoft Word automatically supplies that footnotes citation in a popup text box. The popup box hovers over the numerical superscript, unmistakably indicating the source.12 In addition, no single action can cause a footnote to be deleted; once the cursor is beside it, either the "delete" or "backspace" key must be pressed twice, or it must be deliberately highlighted and then erased with a stroke of either the "delete" or the "backspace" key. This functionality of footnote deletion in Microsoft Word thus decreases the likelihood of footnotes being deleted without the knowledge or intention of the researcher. As to the claim of the researcher that the footnotes in the headings were accidentally deleted, there was a failure on the part of the Ethics Committee to thoroughly investigate the matter when they relied on a presentation of what, according to the researcher, happened during her research for and drafting of the Vinuya Decision. Instead of asking her to re-create the various situations of "inadvertent dropping," the Ethics Committee satisfied itself with a "before" and "after" Microsoft PowerPoint presentation which could not, by any stretch of the imagination, have recreated the whole process of researching and drafting that happened in Vinuya unless every step were to be frozen through screenshots using the "Print Screen" command in tandem with a common image management program. To simply present the "before" and "after" scenario through PowerPoint has no bearing on the reality of what happened. Had the Ethics Committee required that the presentation made before them be through recreation of the drafting process using Microsoft Word alone, without "priming the audience" through a "before" and "after" PowerPoint presentation, they would have seen the footnotes themselves behaving strangely, alerting the researcher that something was seriously wrong. The Committee would then have found incredible the claim that the accidental deletion of a footnote mark attached to a heading and the subsequent transposition of text under that heading to another footnote could have occurred without the researcher being reminded that the text itself came from another source. Proof of deliberate action is found in the Vinuya Decision itself the care with which the researcher included citations of the sources to which the authors of the copied works referred, while conveniently neglecting attribution to the copied works themselves. It is therefore impossible to conclude that such gross plagiarism, consisting of failure to attribute to nine (9) copyrighted works, could have been the result of anything other than failure to observe the requirements of the standard of conduct demanded of a legal researcher. There is also no basis to conclude that there was no failure on the part of Justice del Castillo to meet the standard of supervision over his law clerk required of incumbent judges. III. On Evaluating Plagiarism A. Posners Standards for Evaluating the Characterization of Incidents of Plagiarism

To be generous to my colleagues in this part of my analysis, I have referred to one of the scholars who hold the most liberal views on plagiarism, Judge Richard A. Posner. The three guideposts by which I structured my technical analysis of the instances of plagiarism in the Vinuya Decision come from his breakdown of certain key issues in his work, The Little Book of Plagiarism. In his "cooks tour" of the key issues surrounding plagiarism, wherein he is more liberal than most academics in speaking of the sanctions the act may merit he is against the criminalization of plagiarism, for instance, and believes it an act more suited to informal sanctions13 Judge Posner characterizes plagiarism thus: Plagiarism is a species of intellectual fraud. It consists of unauthorized copying that the copier claims (whether explicitly or implicitly, and whether deliberately or carelessly) is original with him and the claim causes the copier's audience to behave otherwise than it would if it knew the truth. This change in behavior, as when it takes the form of readers' buying the copier's book under the misapprehension that it is original, can harm both the person who is copied and the competitors of the copier. But there can be plagiarism without publication, as in the case of student plagiarism. The fraud is directed in the first instance at the teacher (assuming that the student bought rather than stole the paper that he copied). But its principal victims are the plagiarist's student competitors, who are analogous to authors who compete with a plagiarist.14 Posner then goes on to neatly sum up, in the form of three "keys," major considerations that need to be taken into account when evaluating an occurrence of plagiarism. His books last paragraph reads: In the course of my cooks tour of the principal issues that have to be addressed in order to form a thoughtful response to plagiarism in modern America, I have challenged its definition as "literary theft" and in its place emphasized reliance, detectability, and the extent of the market for expressive works as keys to defining plagiarism and calibrating the different types of plagiarism by their gravity. I have emphasized the variety of plagiarisms, argued for the adequacy of the existing, informal sanctions, pointed out that the "fair use" doctrine of copyright law should not protect a plagiarist, noted the analogy between plagiarism and trademark infringement (a clue to the entwinement of the modern concept of plagiarism with market values)and warned would-be plagiarists that the continuing advance of digitization may soon trip them up. (Emphasis supplied.) It is in this spirit that the three questions of extent, an analogue of reliance, as extensive plagiarism correlates to the reliance of the text on the copied work; deliberateness; and effect, an analogue of what Posner called "extent of the market for expressive works", used here in the context of the effect of plagiarism in the Vinuya Decision were put to the text being scrutinized. The first two questions have been discussed in preceding sections. To examine the effect, one must first make the distinction between the effect of copying a copyrighted work without attribution, and between the effect of copying without attribution a work in the public domain. Using these three guideposts, we can them come to a conclusion whether the plagiarism is relatively harmless and light or something severe and harmful. In the case of the Vinuya Decision, we have come to conclude that the plagiarism is severe; and because judicial decisions are valuable to the Philippine legal system, that the plagiarism harms this institution as well. 1. The distinction between the effect of appropriating copyrighted works and works in the public domain The infringement of copyright necessitates a framework for characterizing the expression of ideas as property. It thus turns on a question of whether there exists resultant harm in a form which is economically quantifiable. Plagiarism, on the other hand, covers a much wider range of acts. In defining copyright infringement, Laurie Stearns points out how it is an offense independent from

plagiarism, so that an action for violation of copyright which may take on either a criminal and a civil aspect, or even both does not sufficiently remedy the broader injury inherent in plagiarism. Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily plagiarismIn some ways the concept of plagiarism is broader than infringement, in that it can include the copying of ideas, or of expression not protected by copyright, that would not constitute infringement, and it can include the copying of small amounts of material that copyright law would disregard.15 Plagiarism, with its lack of attribution, severs the connection between the original author's name and the work. A plagiarist, by falsely claiming authorship of someone else's material, directly assaults the author's interest in receiving credit. In contrast, attribution is largely irrelevant to a claim of copyright infringementinfringement can occur even when a work is properly attributed if the copying is not authorizedfor example, a pirated edition of a book produced by someone who does not own the publication rights.16 The recognition of plagiarism as an offense that can stand independently of copyright infringement allows a recognition that acts of plagiarism are subject to reproof irrespective of whether the work is copyrighted or not. In any case, the scenario presented before the Court is an administrative matter and deals with plagiarism, not infringement of copyright. 2. On judicial plagiarism and the sanctions therefor The majority Resolution quotes from the Judicial Opinion Writing Handbook written by Joyce George which I cited in my earlier Dissent thusly: The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook: A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a partys brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear or reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism. The use of this excerpt to justify the wholesale lifting of others words without attribution as an "implicit right" is a serious misinterpretation of the discussion from which the excerpt was taken. George wrote the above-quoted passage in the context of a nuanced analysis of possible sanctions for judicial plagiarism, not in the context of the existence of plagiarism in judicial opinions. (I had candidly disclosed the existence of this liberal view even in my 12 October 2010 Dissent.) The sections preceding the text from which this passage was taken are, in fact, discussions of the following: ethical issues involving plagiarism in judicial writing, with regard to both the act of copying the work of another and the implications of plagiarism on the act of adjudication; types of judicial plagiarism, the means by which they may be committed, and the venues in and through which they can occur; and recent cases of judicial plagiarism. In no wise does George imply that the judicial function confers upon judges the implicit right to use the writing of others without attribution. Neither does George conflate the possible

lack of sanctions for plagiarism with the issue of whether a determination of judicial plagiarism can be made. Rather, George is careful to make the distinction between the issue of whether judicial plagiarism was committed and the issue of whether a sanction can be imposed for an act of judicial plagiarism. In Georges terminology, the latter issue may also be framed as a question of whether judicial plagiarism is "subject to a claim of legal [that is, actionable] plagiarism", and it has no bearing whatsoever on the former issue. Thus, George writes:
1av vphi1

The intentional representation of another persons words, thoughts, or ideas as ones own without giving attribution is plagiarism. "Judicial plagiarism" is the copying of words or ideas first written down by another judge, advocate, legal writer or commentator without giving credit to the originator of that work. It can include such things as a judges copying of anothers judges opinion, the adoption verbatim of an advocates findings of fact and conclusions of law, the wholesale adoption of an advocates brief, or the copying of a portion of a law review article and representing it as the judges own thoughts. The lack of attribution makes this activity "judicial plagiarism," but without legal sanctions.17 Indeed, my previous Dissent stated that inasmuch as sanctions for judicial plagiarism are concerned, "there is no strictly prevailing consensus regarding the need or obligation to impose sanctions on judges who have committed judicial plagiarism." Yet the absence of a definite answer to the question of liability does not grant judges carte blanche to use the work of others without attribution, willy-nilly, in their judicial opinions. As George puts it, "the judge is ethically bound to give proper credit to law review articles, novel thoughts published in legal periodicals, newly handed down decisions, or even a persuasive case from another jurisdiction."18 Plainly, George is of the opinion that though a judge may not be held liable for an act of judicial plagiarism, he should still attribute. A note about "intentional representation." A careful reading of Georges writing on judicial plagiarism will make it clear that she does not consider "inadvertent" or "unintentional" plagiarism not plagiarism; indeed, she makes the distinction between "intentional" and "unintentional" plagiarism several times, treating both as types of plagiarism: Using anothers language verbatim without using quotation marks or a block quote is intentional, as opposed to unintentional, plagiarism.19 ... The lack of proper attribution may be unintentional and due to sloppy note taking, either by the law clerk or the judge.20 ... Judicial plagiarism may also arise from the use of law clerks performing research and writing of draft decisions and who may not accurately reflect the source. The plagiarized material may be included within the draft resulting from the law clerks poor research skills.21 ... The commission of unintended judicial plagiarism is unethical, but it is not sanctionable.22 The intentional representation of which George speaks, then, may be considered as the intent to represent a work as ones own already embodied in claiming a work by, for instance, affixing ones

name or byline to it in which case the inadvertence, or lack thereof, by which an act of plagiarism was committed is irrelevant to a finding of plagiarism. While George is perhaps not as exacting in her valuation of the penalties for plagiarism as others may be, she still emphasizes that her view on the exemption of judicial plagiarism from sanctions among which she evidently counts social stigma, censure, and ostracism does not negate the judges ethical obligation to attribute. She writes: In conclusion, this author believes that a judicial writer cannot commit legal plagiarism because the purpose of his writing is not to create a literary work but to dispose of a dispute between parties. Even so, a judge is ethically bound to give proper credit to law review articles, novel thoughts published in legal periodicals, newly handed down decisions, or even a persuasive case from another jurisdiction. While the judge may unwittingly use the language of a source without attribution, it is not proper even though he may be relieved of the stigma of plagiarism.23 As I wrote in my previous Dissent: In so fulfilling her obligations, it may become imperative for the judge to use "the legal reasoning and language [of others e.g. a supervising court or a law review article] for resolution of the dispute." Although these obligations of the judicial writer must be acknowledged, care should be taken to consider that said obligations do not negate the need for attribution so as to avoid the commission of judicial plagiarism. Nor do said obligations diminish the fact that judicial plagiarism "detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy" or that it falls far short of the high ethical standards to which judges must adhere.24 It must not be forgotten, however, that Georges view tends toward the very liberal. There are other writings, and actual instances of the imposition of sanctions, that reveal a more exacting view of the penalties merited by judicial plagiarism.25 B. On the Countercharges Made by Justice Abad In his Concurring Opinion in A.M. No. 10-7-17-SC, Justice Abad alleged that I myself have "lifted from works of others without proper attribution," having written "them as an academician bound by the high standards" that I espouse. Regarding this allegation, let us recall my Dissent promulgated on 12 October 2010. I stated: Plagiarism thus does not consist solely of using the work of others in ones own work, but of the former in conjunction with the failure to attribute said work to its rightful owner and thereby, as in the case of written work, misrepresenting the work of another as ones own. As the work is anothers and used without attribution, the plagiarist derives the benefit of use form the plagiarized work without expending the requisite effort for the same at a cost (as in the concept of "opportunity cost") to its author who could otherwise have gained credit for the work and whatever compensation for its use is deemed appropriate and necessary.26 Allow me to analyze the allegations of Justice Robert C. Abad point by point using the same standard I propounded in my 12 October 2010 Dissent. 1. The alleged non-attribution to the Asian Development Banks Country Governance Assessment Report for the Philippines (2005).

TABLE H: Comparison of Justice Abads allegations, the 2001 and 2007 versions of the article coauthored with Drs. De Dios and Capuno, and the ADB Country Governance Assessment of 2005. Excerpt from the Article Co-Authored with Drs. De Dios and Capuno: Reproduction of J. Abads Allegations Justice and the Cost of Doing Business: The Philippines, report submitted to the World Bank, 2001. Costs, on the other hand, refer to both the monetary and nonmonetary opportunities that business people forego as a result of making use of the judicial system itself. Direct costs refer not only to the fees paid the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers fees and documentation). Indirect costs also inevitably arise, of which the most important are those arising from delays in the resolution of cases, and the failure to come up with timely decisions. Excerpt from the Article Co-Authored with Drs. De Dios and Capuno: Justice and the Cost of Doing Business: The Philippines, UP School of Economics Discussion Paper 0711, October 2007. Costs, on the other hand, refer to both the monetary and nonmonetary opportunities that business people forego as a result of making use of the judicial system itself. Direct costs refer not only to the fees paid the courts but also to Excerpt from the ADB Country Governance Assessment: Philippines Asian Development Bank Country Governance Assessment: Philippines, 2005. Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers not only to fees paid to the courts but also to out-ofpocket costs arising from litigation itself (e.g., lawyers fees and compensation, transcript fees for stenographic notes, etc.). Indirect costs refer to lost opportunities arising from delays in the resolution of cases and the time spent by a litigant attending and following up a case.

1.

Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers not only to fees paid to the courts but also to out-of-pocket costs arising from litigation itself (e.g., lawyers fees and compensation, transcript fees for stenographic notes, etc.). Indirect costs refer to lost opportunities arising from delays in the resolution of cases and the time spent by a litigant attending and following up a case. [Asian Development Bank Country Governance Assessment (Philippines) 2005, page 103]

out-of-pocket costs arising from litigation itself (e.g., lawyers fees and documentation). Indirect costs also inevitably arise, of which the most important are those arising from delays in the resolution of cases, and the failure to come up with timely decisions. Justice Abad accuses Dr. Emmanuel S. De Dios, Dr. Joseph J. Capuno, and me of copying, without attribution, three sentences from the Asian Development Banks 2005 Outlook Report for the Philippines, and incorporating them into our 2007 paper entitled "Justice and the Cost of Doing Business." 27 I thank Justice Abad for alerting me to this particular ADB publication; otherwise I would not have noticed ADBs failure to attribute the same to my co-authored work produced in 2001. Were it not for his charges, I would not have learned of such inadvertent error from the ADB. I have thus called the attention of my co-authors, Drs. De Dios and Capuno, to this matter. Below is a reproduction of the contents of my letter to Drs. De Dios and Capuno: Hon. Maria Lourdes P.A. Sereno Associate Justice Supreme Court of the Philippines February 4, 2011 Dr. Emmanuel C. De Dios Dr. Joseph D. Capuno School of Economics University of the Philippines Dear Drs. De Dios and Capuno Greetings! I have been recently alerted to a possible plagiarism that we are suspected to have committed with respect to the 2005 Asian Development Bank Outlook Report, specifically three sentences in page 103 that reads: ... Cost refers to both monetary and nonmonetary opportunities that a litigant has to forego in pursuing a case. Direct cost refers not only to fees paid to the courts but also to out-of-pocket costs arising from litigation itself (e.g. lawyers fees and compensation, transcript fees for stenographic notes, etc.) Indirect costs refer to lost opportunities arising from delays in the resolution of cases and the time spent by a litigant attending and following up a case. On examination, I discovered that it is the ADB that failed to attribute those sentences to the report we submitted in August 2001 to the World Bank entitled "Justice and the Cost of Doing Business: The Philippines," specifically found in the third paragraph of our 2001 report. May I suggest that

perhaps you could alert our friends at the ADB regarding the oversight. It would be nice if our small study, and the World Bank support that made it possible, were appropriately recognized in this ADB publication. Warmest regards always. Sincerely, Maria Lourdes P.A. Sereno A proper reading of the ADB publication will immediately convey the fact that the ADB considers one of my writings as a resource on the topic of Philippine judicial reform. My name is quoted four (4) times in the text. A reading of the references listed one of my 2001 papers, which I wrote singly as the source. Note the following references to my writing: ... It is incumbent upon the courts to harmonize these laws, and often they would find the absence of constitutional standards to guide them (Sereno 2001). at page 98 ... ... Critics pointed out that the Supreme Court should not have made factual declarations on whether a property belongs to the national patrimony in the absence of an operative law by which a factual determination can be made (Sereno 2001). at page 99 ... As Sereno pointed out, if this tension between the three branches is not resolved satisfactorily, it will create a climate of unpredictability as a result of the following: at page 99 ... (iii) a court that will continually have to defend the exercise of its own powers against the criticism of the principal stakeholders in the process of economic policy formulation: the executive and legislative branches and the constituencies consulted on the particular economic issues at hand (Sereno 2001). Had Justice Abad or his researcher taken the time to go through the ADB material, it would have been immediately apparent to either of them that ADB was merely collating the thoughts of several authors on the subject of Philippine judicial reform, and that I was one of those considered as a resource person. He would not then have presumed that I copied those sentences; rather, it might have struck him that more likely than not, it was the ADB echoing the thoughts of one or some of the authors in the reference list when it used those quoted sentences, and that the pool of authors being echoed by ADB includes me. The reference list of the ADB report with the relevant reference is quoted herein: REFERENCES ... Sereno, Ma. Lourdes. 2001. The Power of Judicial Review and Economic Policies: Achieving Constitutional Objectives. PHILJA-AGILE-USAID Project on Law and Economics." at page 158.

What is more unfortunate is that I was immediately accused of having copied my sentences from ADB when a simple turn of the page after the cover page of our 2007 paper would reveal that the 2007 paper is but a re-posting of our 2001 work. The notice on page 2 of the paper that is found in the asterisked footnote of the title reads: This paper was originally submitted in August 2001 as project report to the World Bank. During and since the time this report was written, the Supreme Court was engaged in various projects in judicial reform. The authors are grateful to J. Edgardo Campos and Robert Sherwood for stimulating ideas and encouragement but take responsibility for remaining errors and omissions. The Asian Institute of Journalism and Communication provided excellent support to the study in the actual administration of the survey questionnaire and conduct of focus group discussions. This charge is made even more aggravating by the fact that the Supreme Court itself, through the Project Management Office, has a copy of my 2001 paper. In July 2003, a "Project Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the Philippines for a Judicial Reform Support Project" was officially filed by the World Bank as Report No. 25504.28 The applicant Supreme Courts representative is named as Chief Justice Hilario Davide. The project leader is named as Evelyn Dumdum. The Report lists the technical papers that form the basis for the reform program. Among the papers listed is our 2001 paper. What is worse, from the point of view of research protocols, is that a simple internet search would have revealed that this 2001 co-authored paper of mine has been internationally referred to at least four (4) times in three (3) English language publications and one (1) Japanese- or Chineselanguage publication; two of these are prior to the year 2005 when the relevant ADB Outlook Report came out. The authors of the English-language works are all scholars on judicial reform, and they cite our work as one of the pioneering ones in terms of measuring the relationship between dysfunctions in the judicial system and the cost to doing business of such dysfunctions. It would have then struck any researcher that in all probability, the alleged plagiarized sentences originated from my co-authors and me. The references to my 2001 paper appear in the following international publications: a) Sherwood, Robert. Judicial Performance: Its Economic Impact in Seven Countries; at page 20. (http://www.molaah.com/Economic%20Realities/Judicial%20Performance.pdf) b) Messick, Richard. Judicial Reform and Economic Growth: What a Decade of Experience Teaches; at pages 2 and 16. (2004). http://www.cato.org/events/russianconf2004/papers/messick2.pdf c) Herro, Alvaro and Henderson, Keith. Inter-American Development Bank. The Cost of Resolving Small-Business Conflicts in Sustainable Development Department Best Practices Series; at page 46. (2004) http://www.ifes.org/~/media/Files/Publications/White%20PaperReport/2003/258/SME_Peru_ Report_final_EN.pdf d) World Development Report 2005 (Japanese language); at page 235 (2005) ("url" in Japanese characters) 2. The purported non-attribution of the "Understanding on the Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the General Agreement on Tariffs and Trade 1994."29

I will spare the reader the tedium of reading twenty pages of treaty rules and working procedures, and thus omit the three-column table I have used in other sections of this Dissent. The rules and procedures may be accessed online at the following locations: 1. Marrakesh Declaration of 15 April 1994 <http://www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.pdf> (Last accessed on 16 February 2011) 2. Understanding on Rules and Procedures Governing the Settlement of Disputes <http://www.wto.org/english/docs_e/legal_e/28-dsu.pdf> (Last accessed on 16 February 2011) 3. Working Procedures for Appellate Review <http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm#20> (Last accessed on 16 February 2011) Justice Abad himself provides evidence of the attribution I made when he says: Justice Sereno said that this section is drawn from Article XX and XXII of the GATT 1994, Understanding on Dispute Settlement and Working Procedures. I think the problem lies in the fact that neither Justice Abad nor his researcher is aware that the phrase "Understanding on Dispute Settlement" is the short title for the "Understanding on the Rules and Procedures Governing the Settlement of Disputes", which is formally known also as Annex 2 of the Marakkesh Agreement Establishing the World Trade Organization (short form of treaty name: WTO Treaty). A quick visit to the WTO website will show that the WTO itself uses any of the terms "DSU," "Dispute Settlement Understanding" or "Understanding on Dispute Settlement" (UDS) as short forms for the said Annex. The WTO webpage30 shows that "Understanding on Dispute Settlement" is the first short way they call the long set of rules covered by Annex 2 of the WTO Treaty. More importantly, the WTO documents that were cited here are public international documents and rules governing the relations of states. In page 6 of my article, "Toward the Formulation of a Philippine Position in Resolving Trade and Investment Dispute in APEC," I explain the modes of resolving trade and investment disputes by APEC countries, and one of these modes is the WTO dispute settlement mechanism governed by the WTO rules themselves. This is therefore a meaningless charge. Assuming that Justice Abad knows that the above treaty titles are interchangeable, then his charge is akin to complaining of my supposed failure for having simply written thus: "The following are the requirements for filing a complaint under the Rules of Court" and then for having immediately discussed the requirements under the Rules of Court without quotation marks in reference to each specific rule and section. If this is the case, then it appears that in Justice Abads view I should have written: "the following are the requirements provided for under the 1997 Rules of Civil Procedure (Bar Matter No. 803) for filing a complaint" and then used quotation marks every time reference to the law is made. Nothing can be more awkward than requiring such a tedious way of explaining the Rules of Court requirements. I have made no such comparable charge of violation against Justice del Castillo in the Dissent to the main Decision and I am not making any such claim of violation in my Dissent to the Resolution denying the Motion for Reconsideration, because that would be a meaningless point.

Regarding the phrase allegedly coming from Professor Oppenheim on good offices and mediation, this is a trite, common, standard statement with nothing original at all about it that can be found in any international dispute settlement reference book, including those that discuss WTO dispute settlement systems. The phrase is a necessary, cut-and-dried statement on the use of good offices and mediation, which take place alongside the formal dispute settlement system in major international dispute settlement systems. The system is provided for expressly in Article 5.5 and 5.6 of the DSU. A quick view of the WTO website makes this point very apparent.31 3. The supposed non-attribution of a phrase from Baker v. Carr. TABLE I: Comparison of Justice Abads allegations, the legal memorandum in Province of North Cotabato v. Peace Panel, and the decision of the U.S. Supreme Court in Baker v. Carr, cited in the legal memorandum. Excerpt from the Legal Memorandum Prepared by J. Sereno: Reproduction of J. Abads Allegations Petitioners-Intervenors Memorandum, Province of North Cotabato v. Peace Panel 3.4 The power to determine whether or not a governmental act is a political question, is solely vested in this Court, and not with the Respondents. This Honorable Court had firmly ruled that Article VIII, Section 1 of the Constitution, as rejected the prudential approach taken by courts as described in Baker v. Carr. Indeed, it is a duty, not discretion, of the Supreme Court, to take cognizance of a case and exercise the power of judicial review whenever a grave abuse of discretion has been prima facie established, as in this instance.

Excerpt from the SourceCited by J. Sereno: Baker v. Carr, 369 U.S. 186 (1962).

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion x x x [Baker v. Carr, 169 U.S. 186]

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion.

Source cited: 3.5 In this case, Respondents cannot hide Baker v. Carr under the political question doctrine, for two compelling reasons.

3.6 First, there is no resolute textual commitment in the Constitution that accords the President the power to negotiate with the MILF. 3.13 Second, there is no lack of a judicially discoverable and manageable standard for resolving the question, nor impossibility of deciding the question without an initial policy determination of a kind clearly for non-judicial discretion. On the contrary, the negotiating history with Muslim secessionist groups easily contradict any pretense that this Court cannot set down the standards for what the government cannot do in this case. (pp. 47-50 of the Memorandum) A simple upward glance nine paragraphs above the phrase that Justice Abad quoted from my posthearing Memorandum in the GRP-MILF MOA-AD case would show that Baker v. Carr was aptly cited. For quick reference, I have reproduced the pertinent parts of my legal memorandum in the middle column of the above table. Baker v. Carr was discussed in the context of my argument that Marcos v. Manglapus has adopted a more liberal approach to the political question jurisdictional defense, and has rejected the prudential approach taken in Baker v. Carr. The offending paragraph that Justice Abad quoted was meant to demonstrate to the Court then hearing the GRP-MILF MOA-AD case that even if we apply Baker v. Carr, the Petition has demonstrated satisfaction of its requirement: the presence of a judiciallydiscoverable standard for resolving the legal question before the Court. Justice Abads charge bears no similarity to the violations of the rules against plagiarism that I enumerated in pages 16 to 19 of my Dissent dated 12 October 2010. I have made no similar complaint against the work in Vinuya. 4. The alleged plagiarism of the internet-based World Trade Organization factsheet. TABLE J: Comparison of Justice Abads allegations, the article, entitled Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting, and the WTO Factsheet cited in the article.

Excerpt from the Work of J. Sereno: Reproduction of J. Abads Allegations Sereno, Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting, 52 U.S.T. L. Rev. 259 (20072008) This reticence, to link investment regulation with the legal disciplines in the WTO, compared to the eagerness with which other issues are linked to trade rules, was evident even in the precursor to the Marakkesh Agreement.[2]

Excerpt from the Source Citedby J. Sereno: http://www.fas.usda.gov/ info/factsheets/wto.html Source cited:

The World Trade Organization (WTO), established on January 1, 1995, is a multilateral institution charged with administering rules for trade among member countries. Currently, there are 145 official member countries. The United States and other countries participating in the Uruguay Round of Multilateral Trade Negotiations (19861994) called for the formation of the WTO to embody the new trade disciplines adopted during those negotiations.

The World Trade Organization (WTO), established on January 1, 1995, is a multilateral institution charged with [2] Marakkesh Agreement established the administering rules for World Trade Organization and replaced trade among member GATT as an international organization. It countries. Currently, was signed by ministers from most of the there are 145 official 123 participating governments at a member countries. The meeting in Marrakesh, Morocco on April United States and other 15, 1994. countries participating in the Uruguay Round of The World Trade Organization (WTO) was Multilateral Trade Negotiations (1986established on January 1, 1995. It is a 1994) called for the multilateral institution charged with formation of the WTO to administering rules for trade among member countries. The WTO functions as embody the new trade the principal international body concerned disciplines adopted during those with multilateral negotiations on the The WTO functions as negotiations. reduction of trade barriers and other the principal measures that distort competition. The international body WTO also serves as a platform for The WTO functions as concerned with countries to raise their concerns regarding the principal multilateral negotiations the trade policies of their trading partners. international body on the reduction of trade The basic aim of the WTO is to liberalize concerned with barriers and other world trade and place it on a secure basis, multilateral negotiations measures that distort thereby contributing to economic growth on the reduction of trade competition. The WTO and barriers and other also serves as a development.http://www.fas.usda.gov/info/ measures that distort platform for countries to competition. The WTO raise their concerns also serves as a factsheets/wto.html (last accessed regarding the trade platform for countries to February 13, 2008).(Emphasis supplied.) policies of their trading raise their concerns partners. The basic aim regarding the trade (p. 260-261, footnote 2 of J. Serenos of the WTO is to policies of their trading work) liberalize world trade partners. The basic aim and place it on a secure of the WTO is to basis, thereby liberalize world trade contributing to economic and place it on a secure growth and basis, thereby contributing to economic

development. [WTO FACTSHEET http://www.fas.usda.gov/ info/factsheets/wto.html, last accessed February 13, 2008.]

growth and development. Source cited: http://www.fas.usda.gov/ info/factsheets/wto.html

Justice Abad has likewise pointed out that I made it appear that the description of the WTO in my article entitled "Uncertainties Beyond the Horizon: The Metamorphosis of the WTO Investment Framework in the Philippine Setting" was my own original analysis. Again, a cursory reading of the article will show that the paragraph in question was actually the second footnote in page 2 of the article. The footnote was made as a background reference to the Marrakesh Agreement, which, as I explained earlier in the article, established the WTO. The footnote thus further provided background information on the WTO. Contrary, however, to Justice Abads allegation, I clearly attributed the source of the information at the end of the footnote by providing the website source of this information and the date I accessed the information. Thus, should one decide to follow the website that I cited, one would immediately see the information contained in the article was lifted from this direct source. 5. The purported non-attribution to Judge Richard A. Posners seminal work in his book Economic Analysis of Law. TABLE K: Comparison of Justice Abads allegations, the article entitled Lawyers Behavior and Judicial Decision-Making, and Judge Richard A. Posners book Economic Analysis of Law, cited in the article. Excerpt from the Work of J. Sereno: Reproduction of J. Abads Allegations Sereno, Lawyers Behavior and Judicial DecisionMaking, 70(4) Phil. L. J. 476 (1996). Excerpt from the SourceCited by J. Sereno: Richard A. Posner, Economic Analysis of Law, (2nd ed. 1977). As with any contract, a necessary (and usually why not always? sufficient) conditions for negotiations to succeed is that there be a price at which both parties would feel that agreement would increase their welfare. Hence settlement negotiations should fail, and litigation ensue, only if the minimum price that the plaintiff is willing to accept in compromise of his claim is greater than the

...We could deal with this problem later. What I would propose to evaluate at this [S]ettlement negotiations will fail and litigation ensue, point is the preconditions thatJudge Richard only if the minimum price that the plaintiff is willing to Posner theorizes as dictating the likelihood of accept in compromise of his claim is greater than the litigating... maximum price the defendant is willing to pay in satisfaction of the claim. Posners model is but a [Posner, p. 434] simple mathematical illustration or validation of what we as laymen have

always believed to be true, although how to prove it to be true has always remained a problem to us. We have always known that the decision on whether to settle or not is dictated by the size of the stakes in the eyes of the parties, the costs of litigation and the probability which each side gives to his winning or losing. But until now, we have only been intuitively dealing with a formula for arriving at an estimation of the "settlement range" or its existence in any given controversy. Simply, the settlement range is that range of prices in which both parties would be willing to settle because it would increase their welfare. Settlement negotiations will fail, and litigation will ensue, if the minimum price that plaintiff is willing to accept in compromise of his claim is greater than the maximum price that the defendant is willing to pay in satisfaction of that claim. (pp. 481-483 of Lawyers Behavior and Judicial Decision-Making) Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and nonmonetary elements. [Posner, p. 415] [T]he rules of the judicial process have been carefully designed both to

maximum price that the defendant is willing to pay in satisfaction of that claim; . Source cited: Richard A. Posner, Economic Analysis of Law, 435 (2nd ed. 1977).

What the Judge Maximizes 19.7 WHAT DO JUDGES MAXIMIZE? In understanding judicial This section attempts to behavior, we have to sketch a theory of judicial assume, that judges, like incentives that will all economic actors maximize a utility function. reconcile these assumptions. This function in all probability includes material as well as nonPresumably judges, like material factors. In the rest of us, seek to American literature, they maximize a utility function

the prevent the judge from receiving a monetary payoff from deciding a particular case one way or the other and to minimize the influence of politically effective interest group in his decisions. [Posner, 415] It is often argued, for example, that the judge who owns land will decide in favor of landowners, the judge who walks to work will be in favour of pedestrians. [Posner, 415] A somewhat more plausible case can be made that judgesmight slant their decisions in favour of powerful interest groups in order to increase the prospects of promotion to higher office, judicial or otherwise. [Posner, p. 416] [J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416]

have come up with several theories on what judges maximize.

that includes both monetary and nonmonetary elements (the latter including leisure, prestige, and The first is that the power). As noted earlier, American judicial system however, the rules of the have rules designed to minimize the possibilities of judicial process have been carefully designed both to a judge maximizing his prevent the judge from financial interest by receiving a monetary receiving a bribe from a litigant of from acceding to payoff from deciding a particular case one way or a politically powerful the other and to minimize interest group by making the influence of politically the rules work in such a effective interest groups manner as to create on his decisions. To be disincentives for the judge sure, the effectiveness of ruling in such a manner. these insulating rules is sometimes questioned. It The second, proceeding is often argued, for from the first is that the example, that the judge judge maximizes the who owns land will decide interest of the group to in favor of landowners, the which he belongs. If he belongs to the landowning judge who walks to work in favor of pedestrians, the class, he will generally favor landowners, and if he judge who used to be a corporate lawyer in favor walks to work, he will of corporations.... generally favor pedestrians. A somewhat more plausible case can be The third is that the judge maximizes the prospects of made that judges might slant their decisions in his promotion to a higher favor of powerful interest office by slanting his groups in order to decisions in favor of increase the prospects of powerful interest groups. promotion to higher office, judicial or otherwise.... The last is that judges maximize their influence on It would seem, therefore, society by imposing their that the explanation for values, tastes and judicial behavior must lie preferences thereon. elsewhere than in pecuniary or political Depending on ones factors. That most judges impressions and are leisure maximizers is experiences (since there is an assumption that will not no empirical data on which survive even casual a more scientific conclusion observation of judicial can be reached on which behavior. A more of the above four theories attractive possibility, yet are correct), we can see

the relation of this utilitymaximizing behavior on both our probability estimate function and Posnersprecondition inequality for litigation. Although more research is required in this area, if we believe Posnersfunction to be true. (Emphasis supplied.) (pp. 489 of Lawyers Behavior and Judicial Decision-Making)

still one thoroughly consistent with the ordinary assumptions of economic analysis, is that judges seek to impose their preferences, tastes, values etc. on society.... Source: Richard A. Posner, Economic Analysis of Law, 415-16 (2nd ed. 1977).

May I invite the reader to read my entire article entitled "Lawyers Behavior and Judicial DecisionMaking," accessible online at <http://law.upd.edu.ph/plj/images/files/PLJ%20volume%2070/PLJ%20volume%2070%20number%2 04%20-02-%20Ma.%20Lourdes%20A.%20Sereno%20-%20Lawyers%20Behavior.pdf>, so that the alleged copying of words can be taken in the proper context. It must first be emphasized that the whole article was largely a presentation and discussion of Judge Posners economic models of litigation and settlement, applying what he had written to the context of the Philippines. An examination of the article will show that Posners work was referred to no less than fourteen (14) times throughout the article, excluding the use of pronouns that also refer to Posner, such as "he" and "him." A diligent reading of the full text of the article will reveal that I have intentionally and heavily used Posners opinions, analyses, models, and conclusions while crediting him with the same. Furthermore, the passages cited in the table of counter-charges use what one may call the "terms of the trade" in the field of law and economics, or indeed in the field of economics itself. The maximization of an individuals utility is one of the core principles on which the study of an individuals choices and actions are based. The condition for the success/failure of settlement bargaining is practically a definition, as it is also a fundamental principle in the study of bargaining and negotiation that the minimum price of one of the parties must not exceed the maximum price the other party is willing to pay; that particular passage, indeed, may be regarded as a re-statement, in words instead of numbers, of a fundamental mathematical condition as it appears in Posners model and in many similar models. To allow industry professionals to have their say on the matter, I have written a letter to Dr. Arsenio M. Balisacan, the Dean of the University of the Philippines School of Economics, requesting that my paper, Lawyers Behavior and Judicial Decision-Making, be examined by experts in the field to determine whether the allegations of plagiarism leveled against me have basis. I am reproducing the contents of the letter below. Hon. Maria Lourdes P.A. Sereno Associate Justice Supreme Court of the Philippines

February 11, 2011 Dr. Arsenio M. Balisacan Dean School of Economics University of the Philippines Dear Dr. Balisacan: Greetings! I hope this letter finds you in the best of health. I write because I have a request to make of your highly-respected institution. I have been recently accused of plagiarizing the work of Judge Richard Posner in one of the articles on law and economics that I have written and that was published in the Philippine Law Journal entitled "Lawyers Behavior and Judicial Decision-Making", 70 Phil L. J. 475-492 (June 1996). The work of Posner that I am accused of having plagiarized is the second edition of the book entitled "Economic Analysis of Law", published in 1977 by Little, Brown and Company. May I ask you for help in this respect I wish to submit my work to the evaluation of your esteemed professors in the UP School of Economics. My work as an academic has been attacked and I would wish very much for a statement from a panel of your choosing to give its word on my work. I am attaching a table showing which part of Posners work I am alleged to have plagiarized in my Philippine Law Journal article. Thank you very much. I will be much obliged for this kind favor. Very truly yours, Maria Lourdes P.A. Sereno The problem with the majority approach is that it refuses to face the scale of the plagiarism in the Vinuya Decision. If only that were the starting point for the analysis of the majority, then some of my colleagues would not have formed the impression that I was castigating or moralizing the majority. No court can lightly regard a ponencia, as in Vinuya, where around 53% of the words used for an important section were plagiarized from sources of original scholarship. Judges and their legal researchers are not being asked to be academics; only to be diligent and honest. IV. The Role of the Judiciary in Society On more than one occasion, this Court has referred to one of its functions as the symbolic or educative function, the competence to formulate guiding principles that may enlighten the bench and the bar, and the public in general.32 It cannot now backpedal from the high standards inherent in the judicial role, or from the standards it has set for itself. The need to cement ethical standards for judges and justices is intertwined with the democratic process. As Lebovits explained: The judiciary's power comes from its words alonejudges command no army and control no purse. In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Opinion writing is public writing of the

highest order; people are affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they writeopinions scrutinized by litigants, attorneys, other judges, and the publicare held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion. 33 Justice George Rose Smith once pointed to the democratic process as a reason to write opinions: "Above all else to expose the court's decision to public scrutiny, to nail it up on the wall for all to see. In no other way can it be known whether the law needs revision, whether the court is doing its job, whether a particular judge is competent." Justice Smith recognized that judges are not untouchable beings. Judges serve their audience. With this service comes the need for judges to be trusted. Writing opinions makes obtaining trust easier; it allows an often opaque judicial institution to become transparent.34 Judges cannot evade the provisions in the Code of Judicial Conduct.35 A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The drafters of theModel Code were aware that to be effective, the judiciary must maintain legitimacy and to maintain legitimacy, judges must live up to the Model Code's moral standards when writing opinions. If the public is able to witness or infer from judges' writing that judges resolve disputes morally, the public will likewise be confident of judges' ability to resolve disputes fairly and justly.36 (Citations omitted) Canon 1 of the Code of Judicial Conduct states that a judge should uphold the integrity and independence of the judiciary. Rule 1.01 in particular states that a judge should be the embodiment of competence, integrity, and independence. Canon 3 then focuses on the duty of honesty in the performance of official duties, as well as on the supervision of court personnel: Rule 3.09. A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity. Rule 3.10. A judge should take or initiate appropriate disciplinary measures against lawyers or court personnel for unprofessional conduct of which the judge may have become aware. Paragraph 17 of the Code of Judicial Ethics37 focuses on the writing of judicial opinions: In disposing of controversial cases, judges should indicate the reasons for their action in opinions showing that they have not disregarded or overlooked serious arguments of counsel. They should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. (Emphasis supplied) Paragraph 31, "a summary of judicial obligations," contains a more general statement regarding the behavioral norms required of judges and justices alike, stating: A judges conduct should be above reproach and in the discharge of his judicial duties, he should be conscientious, studious, thorough, courteous, patient, punctual, just, impartial, fearless of public clamor, and regardless of private influence should administer justice according to law and should

deal with the patronage of the position as a public trust; and he should not allow outside matters or his private interests to interfere with the prompt and proper performance of his office. That judges and justices alike are subject to higher standards by virtue of their office has been repeatedly pronounced by the Supreme Court: Concerned with safeguarding the integrity of the judiciary, this Court has come down hard and wielded the rod of discipline against members of the judiciary who have fallen short of the exacting standards of judicial conduct. This is because a judge is the visible representation of the law and of justice. He must comport himself in a manner that his conduct must be free of a whiff of impropriety, not only with respect to the performance of his official duties but also as to his behavior outside his sala and as a private individual. His character must be able to withstand the most searching public scrutiny because the ethical principles and sense of propriety of a judge are essential to the preservation of the peoples faith in the judicial system.38 Thus, being the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen.39 A judge should personify integrity and exemplify honest public service. The personal behavior of a judge, both in the performance of his official duties and in private life should be above suspicion.40 Concerned with safeguarding the integrity of the judiciary, this Court has come down hard on erring judges and imposed the concomitant punishment.41 As held by the Court in Teban Hardware and Auto Supply Co. v. Tapucar:42 The personal and official actuations of every member of the Bench must be beyond reproach and above suspicion. The faith and confidence of the public in the administration of justice cannot be maintained if a Judge who dispenses it is not equipped with the cardinal judicial virtue of moral integrity, and if he obtusely continues to commit an affront to public decency. In fact, moral integrity is more than a virtue; it is a necessity in the Judiciary. The inherent value of judicial decisions goes beyond the resolution of dispute between two parties. From the perspective of the judge, he has fulfilled his minimum burden when he has disposed of the case. Yet from the perspective of the public, it is only through publicized decisions that the public experiences the nearest approximation of a democratic experience from the third branch of Government. Decisions and opinions of a court are of course matters of public concern or interest for these are the authorized expositions and interpretations of the laws, binding upon all citizens, of which every citizen is charged with knowledge. Justice thus requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public.43 The clearest manifestation of adherence to these standards is through a Justices written opinions. In the democratic framework, it is the only way by which the public can check the performance of such public officers obligations. Plagiarism in judicial opinions detracts directly from the legitimacy of the judge's ruling and indirectly from the judiciary's legitimacy.44 It is objectionable not only because of its inherent capacity to harm, but the overarching damage it wreaks on the dignity of the Court as a whole. The Courts Educative Function

The Courts first Decision in this case hinged on the difference between the academic publishing model on the one hand, and the judicial system on the other. It proceeded to conclude that courts are encouraged to cite "historical legal data, precedents, and related studies" in their decisions, so that "the judge is not expected to produce original scholarship in every respect." This argument presents a narrower view of the role of the courts than what this countrys history consistently reveals: the judiciary plays a more creative role than just traditional scholarship. No matter how hesitantly it assumes this duty and burden, the courts have become moral guideposts in the eyes of the public. Easily the most daunting task which confronts a newly appointed judge is how to write decisions. It is truly a formidable challenge considering the impact of a courts judgment reverberates throughout the community in which it is rendered, affecting issues of life, liberty, and property in ways that are more pervasive and penetrating than what usually appears on the surface or under it.45 The impact of judicial decisions has even been codified in paragraph 2 of the Canon of Judicial Ethics: "Every judge should at all times be alert in his rulings and in the conduct of the business of his court, so far as he can, to make it useful to litigants and to the community." The error in the contention of the majority that judicial writing does not put a premium on originality is evident. In the words of Daniel Farber, stare decisis has become an oft-repeated catchphrase to justify an unfounded predisposition to repeating maxims and doctrines devoid of renewed evaluation. In reviewing the Court's work, we saw a fixation on verbal formulas; likewise, race scholarship frequently seems to suffer from a similar fixation on stylized rhetoric. Yet Holmes' adage defines the problem a bit too narrowlysuggesting that we mostly need less abstraction and more concreteness. This deficiency actually is part of the problem; we could surely benefit from more empirical research and sensitivity to concrete factual situations. Yet, the problem goes beyond that.46 The consistent resort to stare decisis fails to take into account that in the exercise of the Courts selfproclaimed symbolic function, its first accountability is to its audience: the public. Its duty of guiding the bench and the bar comes a close second. Consider first the judge. A key weakness of current Supreme Court opinions seems to be that judges have sometimes lost track of whom they are addressing or what they are trying to accomplish. Of course, they have no literal clients, but they seek to advance a set of values and perspectives that might serve as the basis for identifying metaphorical clientsThe purpose, then, is to help the system work as well as possible according to its own norms and goals Often, the purpose is to guide other courts to advance the client's interests in their own decisions. In this respect, the important part of the opinion is that portion speaking to future casesthough as we have seen, judges sometimes fail to focus their energies there. Additionally, the opinion, if it is to elicit more than the most grudging obedience, must appeal to the values and goals of those judges as well as to the author's.47 The Court seemingly views the issuance of opinions to be an end in itself, as if the text of the opinion had some autonomous value unrelated to its ability to communicate to an audience. At a deeper level, the intellectual flaw in the statutory-interpretation opinions is similar. The Court often treats statutes as free-standing texts, with little attention to their historical and social contexts or what their drafters were trying to achieve.48

Thus, the value of ethical judicial writing vis--vis the role that courts are called upon to play cannot be underestimated. Worrying about the ethical status of judicial opinions seems pointless at first. Complaints about decisions and the opinions that explain them have been around as long as judges have been judging. As technology has lowered the cost of research, and of cutting and pasting earlier work, opinions often seem to be formal exercises that do not suggest deep judicial engagement. Other opinions do show the hand of a deeply engaged judge, though these can be worse than the cut-andpasted kind. What then is to be gained by trying to make an ethical issue of judicial writing? Professor Llewellyn said it is in part because the judicial office acts as "a subduer of self and selfwill, as an engine to promote openness to listen and to understand, to quicken evenhandedness, patience, sustained effort to see and judge for All-of-Us." 49 The lessons taught our country by its singular experience in history has given rise to a more defined place for our courts. With the constitutional mandate that the Supreme Court alone can exercise judicial review, or promulgate rules and guidelines for the bench and the bar, or act as the arbiter between the two branches of government, it is all the more evident that standards for judicial behavior must be formulated. After all, "the most significant aspect of the court's work may lie in just this method and process of decision: by avoiding absolutes, by testing general maxims against concrete particulars, by deciding only in the context of specific controversies, by finding accommodations between polar principles, by holding itself open to the reconsideration of dogma, the court at its best, provides a symbol of reconciliation."50 According to Paul Freund, the great fundamental guarantees of our Constitution are in fact, moral standards wrapped in legal commands. It is only fitting that the Court, in taking on the role of a public conscience, accept the fact that the people expect nothing less from it than the best of faith and effort in adhering to high ethical standards. I affirm my response to the dispositive portion of the majority Decision in this case as stated in my Dissent of 12 October 2010, with the modification that more work of more authors must be appropriately acknowledged, apologies must be extended, and a more extensively corrected Corrigendum must be issued. Again, I make no pronouncement on liability, not only because the process was erroneously cut short by the majority when it refused to proceed to the next step of determining the duty of diligence that a judge has in supervising the work of his legal research, and whether, in this instance, Justice del Castillo discharged such duty, but also because of the view expressed by Justice Carpio that this Court had best leave the matter of clearing Justice del Castillo to Congress, the body designated by the Constitution for such matters. It seems now that the process of determining the degree of care required in this case may never be undertaken by this Court. One thing is certain, however: we cannot allow a heavily plagiarized Decision to remain in our casebooks it must be corrected. The issues are very clear to the general public. A wrong must be righted, and this Court must move forward in the right direction. MARIA LOURDES P. A. SERENO Associate Justice

Footnotes Mark Ellis, Breaking the Silence: Rape as an International Crime, 38 Case W. Res. J. Intl L. 225 (2006-2007); Christian J. Tams, Enforcing Erga Omnes Obligations in International
1

Law (2005); Evan J. Criddle and Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Intl L. 331 (2009)
2

Justice Antonio T. Carpio, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, A.M. No. 10-7-17-SC.
3

Justice Maria Lourdes P. A. Sereno, Dissenting Opinion, In the Matter of the Charges of Plagiarism, etc. against Associate Justice Mariano C. del Castillo, AM 10-7-17-SC, promulgated 12 October 2010, at 31.
4

Robert McCorquodale, The Individual and the International Legal System, in International Law, 307-332 (Malcolm Evans ed., 2006).
5

Phoebe Okowa, Issues of Admissibility and the Law on International Responsibility, in International Law (Malcolm Evans ed., 2006).
6

Published in the blog of the European Journal of International Law, accessed at http://www.ejiltalk.org/testing-the-limits-of-diplomatic-protection-khadr-versus-the-primeminister-of-canada. Last visited 24 January 2011, 1:47 p.m.
7

From the Congressional Report Services Memorandum, by Larry Niksch, Specialist in Asian Affairs, Foreign Affairs, Defense and Trade Division, accessible at http://www.awf.or.jp/pdf/h0076.pdf. This document is covered by a copyright notice from the United States Congressional Research Service posted at the website of the Asian Womens Fund: http://www.awf.or.jp/e4/un-05.html#etc. Last accessed 24 January 2011, 2:35 p.m.
8

"So in the process, my practice, which may not be shared by other researchers, my own practice as to doing research for decisions is to basically review all the material that is available insofar as I can. So I review everything, I take notes, I do my own research and then after one has reviewed as much as I am able to, then one starts writing." TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
9

"So what happens, Your Honors, is basically, one does an initial review, sorry, I do an initial review on thisall of these goes for the most articles, Law Journal articles. So one does initial review on these articles and if there is an article that immediately strikes one as relevant or as important or as useful in the course of writing a decision, you can click on it, the blue portion, you can click on this and the article will actually appear. And then you can read the whole article, you can skim through the article, if again it seems relevant, its possible to e-mail the article to yourself, which makes it easier becauseso at least I have, for instance, all of the articles available like in my home." TSN at 28, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
10

TSN at 29, Hearing of 26 August 2010, Deliberations of the Committee on Ethics and Ethical Standards.
11

Approved by the court en banc on 15 November 2005.

12

A case in which the popup text box would not appear is that in which a block of text containing the note reference mark is selected; the popup text box will only appear if the cursor is hovered near the note reference mark.

13

Richard A. Posner, The Little Book of Plagiarism, 38 (2007). Id. at 106.

14

15

Laurie Stearns, Copy Wrong: Plagiarism, Property, and the Law, 80 Cal. L. Rev. 513, 518 (1992).
16

Id. at 522.

17

Joyce C. George, Judicial Plagiarism, Judicial Opinion Writing Handbook, accessed at <http://books.google.com.ph/books?id=7jBZ4yjmgXUC&lpg=PR1&hl=en&pg=PR1#v=onepa ge&q&f=false> on February 8, 2011, at 715.
18

Id. at 726. Id. at 715. Id. at 718. Id. Id. at 726. Id. Supra note 3 at 29.

19

20

21

22

23

24

25

See: In re Widdison, 539 N.W.2d 671 (S.D. 1995) at 865 (as cited in Jaime S. Dursht, Judicial Plagiarism: It May Be Fair Use but Is It Ethical?, 18 Cardozo L. Rev. 1253); Rebecca Moore Howard, Plagiarisms, Authorships, and the Academic Death Penalty, 57 College English 7 (Nov., 1995), at 788-806, as cited in the JSTOR, http://www.jstor.org./stable/378403; Klinge v. Ithaca College, 634 N.Y.S.2d 1000 (Sup. Ct. 1995), Napolitano v. Trustees of Princeton Univ., 453 A.2d 279, 284 (N.J. Super. Ct. Ch. Div. 1987), and In re Brennan, 447 N.W.2d 712, 713-14 (Mich. 1949), as cited in Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 The Georgetown Journal of Legal Ethics 264, note 190; Apotex Inc. v. Janssen-Ortho Inc. 2009, as cited in Emir Aly Crowne-Mohammed, 22 No. 4 Intell. Prop. & Tech. L. J. 15, 1 as cited in page 28 and footnotes 24, 25, 27 to 29 of my 12 October 2010 Dissent.
26

Id. at 26. Discussion Paper No. 07011, October 2007, UP School of Economics.

27

28

World Bank, Project Appraisal Document on a Proposed Loan in the Amount of US$21.9 Million to the Republic of the Philippines for a Judicial Reform Support Project (Report No: 25504) (2003), available at http://wwwwds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2003/07/31/ 000012009_20030731101244/Rendered/PDF/255040PH0PAD.pdf (accessed on February 5, 2011).

29

A minor correction is in order. The "Understanding on the Rules and Procedures Governing the Settlement of Disputes" is Annex 2 to the Marakkesh Agreement Establishing the World Trade Organization. There is no Annex 2 to the General Agreement on Tariffs and Trade 1994. Please see paragraphs 1 to 4 of said GATT 1994 for a list of all its component parts.
30

Understanding on Dispute Settlement, available at http://www.inquit.com/ iqebooks/WTODC/Webversion/ prov/eigteen.htm (accessed on February 5, 2011). World Trade Organization, Dispute Settlement System Training Module: Chapter 8 Dispute Settlement Without Recourse to Panels and the Appellate Body, available at http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c8s1p2_e.htm (accessed on February 5, 2011).
31 32

Salonga v. Cruz Pao, G.R. No. 59525, 18 February 1985, 134 SCRA 438.

33

Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 264 (2008).
34

Id. at 269. Promulgated 5 September 1989, took effect 20 October 1989. Supra note 33 at 240-241. Administrative Order No. 162. In Re Letter of Judge Augustus C. Diaz, A.M. No. 07-7-17-SC, 19 September 2007. A.M. No. RTJ-90-447, 199 SCRA 75, 12 July 1991, 83-84. Junio v. Rivera, A.M. No. MTJ-91-565. August 30, 1993. Castillo v. Calanog, Jr., A.M. No. RTJ-90-447, 16 December 1994, 239 SCRA 268

35

36

37

38

39

40

41

42

Teban Hardware and Auto Supply Co. v. Tapucar, A.M. No. 1720, 31 January 1981, 102 SCRA 492, 504.
43

Ex Parte Brown, 166 Ind. 593, 78 N.E. 553 (1906). Supra note 33 at 282.

44

45

Foreword of Justice Ameurfina A. Melencio Herrera, "Fundamentals of Decision Writing for Judges," (2009).
46

Daniel Farber, Missing the Play of Intelligence, 6 Wm. & Mary L. Rev. 147, (1994). Id. at 170. Id. at footnote 40.

47

48

49

David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 509. (2001).
50

Paul A. Freund, "The Supreme Court" in Talks on American Law 81-94 (rev. ed., 1972).

The Lawphil Project - Arellano Law Foundation

SEPARATE DISSENTING OPINION CARPIO MORALES, J.: I join Justice Antonio T. Carpios thesis in his Dissenting Opinion on the commission of plagiarism or violation of intellectual property rights in the Vinuya decision. I join him too on his other thesis that this Court has no jurisdiction to decide an administrative case where a sitting Justice of this Court has committed misconduct in office, with qualification. I submit that the Court may wield its administrative power against its incumbent members on grounds other thanculpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust, AND provided the offense or misbehavior does not carry with it a penalty, the service of which would amount to removal from office either on a permanent or temporary basis such as suspension. The President, the Vice President, the members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.1(underscoring supplied) In 1988, the Court dismissed the complaint for disbarment against Justice Marcelo Fernan for lack of merit. Aside from finding the accusations totally baseless, the Court, by per curiam Resolution,2 also stated that to grant a complaint for disbarment of a member of the Court during the members incumbency would in effect be to circumvent and hence to run afoul of the constitutional mandate that members of the Court may be removed from office only by impeachment. In the subsequent case of In Re Raul M. Gonzales,3 this principle of constitutional law was succinctly formulated in the following terms which lay down a bar to the institution of certain actions against an impeachable officer during his or her incumbency. x x x A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarmentduring the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office.4 (emphasis and underscoring supplied; italics in the original) The Court clarified, however, that it is not saying that its members are entitled to immunity from liability for possible criminal acts or for alleged violations of the canons of judicial ethics or codes of

judicial conduct. It stressed that there is a fundamental procedural requirement that must be observed before such liability may be determined and enforced. x x x A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehaviour that may be proven against him in appropriate proceedings.5(underscoring supplied) The Court declared the same principle in Jarque v. Desierto6 by Resolution of December 5, 1995. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts. Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the formers retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 of the Anti-Graft and Corrupt Practices Act.7 (underscoring supplied) The immediately-quoted pronouncement implies that the administrative investigation must be initiated during the incumbency of the respondent. That the Supreme Court has overall administrative power over its members and over all members of the judiciary has been recognized.8 Moreover, the Internal Rules of the Supreme Court (2010)9 expressly included, for the first time, "cases involving the discipline of a Member of the Court"10 as among those en banc matters and cases. Elucidating on the procedure, Section 13, Rule 2 of the Courts Internal Rules provides: SEC. 13. Ethics Committee. In addition to the above, a permanent Committee on Ethics and Ethical Standardsshall be established and chaired by the Chief Justice, with following membership: a) a working Vice-Chair appointed by the Chief Justice; b) three (3) members chosen among themselves by the en banc by secret vote; and c) a retired Supreme Court Justice chosen by the Chief Justice as a non-voting observerconsultant. The Vice-Chair, the Members and the Retired Supreme Court Justice shall serve for a term of one (1) year, with the election in the case of elected Members to be held at the call of the Chief Justice. The Committee shall have the task of preliminarily investigating all complaints involving graft and corruption and violations of ethical standards, including anonymous complaints, filed against Members of the Court, and ofsubmitting findings and recommendations to the en banc. All proceedings shall be completely confidential. The Committee shall also monitor and report to the Court the progress of the investigation of similar complaints against Supreme Court officials and employees, and handle the annual update of the Courts ethical rules and standards for submission to the en banc. (emphasis and underscoring supplied)

The Court acknowledged its power to take cognizance of complaints against its incumbent Members. It is circumscribed, however, by the abovementioned principle of constitutional law11 in terms of grounds and penalties. In at least two recent instances, the Court had conducted administrative proceedings against its incumbent Members. In the controversy surrounding the 1999 Bar Examinations, the Court, by Resolution of March 22, 2000 in Bar Matter No. 979, censured then incumbent Justice Fidel Purisima for his failure to disclose on time his relationship to an examinee and for breach of duty and confidence, and declared forfeited 50% of the fees due him as chairperson of the 1999 Bar Examinations Committee. The impositions did not, however, douse the clamor for stiffer penalties on Justice Purisima in case he were found liable after a full, thorough and formal investigation by an independent and impartial committee, which some quarters urged the Court to form. Meanwhile, Justice Purisima retired from the Court on October 28, 2000. By Resolution of November 28, 2000, the Court ruled that "[h]is retirement makes it untenable for this Court to further impose administrative sanctions on him as he is no longer a member of the Court" and referred the bar matter to the Special Study Group on Bar Examination Reforms for report and recommendation. The implication that the Court could have imposed further administrative sanctions on Justice Purisima had he not retired is a recognition that the Court may discipline one of its sitting members. Further, the Court did not explain why the "further" imposition of administrative sanctions was untenable except for the fact that Justice Purisima was no longer a member of the Court. Could it be that the earlier imposed penalties (i.e., censure and partial forfeiture of fees) were already considered sufficient? Could it be that the proper administrative case (arising from the earlier bar matter) was not instituted before Justice Purisima retired? Or could it be that Justice Purisimas retirement benefits were already released to him, leaving the Court with nothing more to go after to or impose (except, perhaps, disqualification to hold any government office)? I thus submit that the failure to initiate an administrative proceeding prior to Justice Purisimas retirement made it untenable for the Court to further impose administrative sanctions on him. What was confirmed by the Purisima case, nonetheless, for purposes of pertinent discussion, is that the Court has jurisdiction to take cognizance of a complaint against an incumbent Justice. Then there was the case In re: Undated Letter of Mr. Louis Biraogo12 where Justice Ruben Reyes was, inter alia, "held liable for GRAVE MISCONDUCT for leaking a confidential internal document of the Court" for which he was "FINED P500,000.00, to be charged against his retirement benefits, and disqualified to hold any office or employment in any branch or instrumentality of the government including government-owned or controlled corporations."13 The question in Biraogo was not so much on the Courts jurisdiction over the case but on the effect of Justice Reyes subsequent retirement during the pendency of the case. Unlike the present case, however, impeachment proceedings against Justices Purisima and Reyes did not see the light of day as they eventually retired, which mandatory retirement either foreclosed the initiation of further administrative proceedings or directed the imposable sanctions to the retirement benefits. In view of the impeachment complaint filed with the House of Representatives involving the same subject matter of the case, which denotes that a co-equal branch of government found the same act or omission grievous as to present a ground for impeachment and opted to exercise its constitutional

function, I submit that the Court cannot proceed with the administrative complaint against Justice Del Castillo for it will either (i) take cognizance of an impeachable offense which it has no jurisdiction to determine, or (ii) downplay the questioned conduct and preempt the impeachment proceedings. I thus join the call of Justice Carpio to recall the Courts October 15, 2010 Resolution, but only insofar as Justice Del Castillo is concerned. All related administrative concerns and issues involving non-impeachable officers therein should still be considered effectual. In Biraogo, the unauthorized release of the unpromulgated ponencia of Justice Reyes in the consolidated Limkaichongcases spawned an investigation to determine who were responsible for the leakage of the confidential internal document of the Court. The investigation led to the disciplining of not just Justice Reyes but also two members of his staff, who were named without hesitation by the Court, viz., Atty. Rosendo B. Evangelista and Armando Del Rosario, and who were held liable for SIMPLE NEGLECT OF DUTY and ordered to pay FINE in the amount of P10,000.00 andP5,000.00, respectively.14 Why, in the present case, the legal researcher who is hiding behind her credentials appears to be held a sacred cow, I cannot fathom. Hers is a new (or better) specie of initialed personification (e.g., "xxx") under the likes of Cabalquinto15which should apply only to cases involving violence against women and children.16 The unjustified non-disclosure of her identity is unfair to Atty. Evangelista who, aside from having his own credentials to protect, had to be mentioned as a matter of course in the committee report adopted by the Court in In re: Undated Letter of Mr. Louis Biraogo, after similarly cooperating with and explaining his side before the investigating committee. Atty. Evangelista was eventually found by the Court to be wanting in care and diligence in securing the integrity and confidentiality of a document. In the present case, the Courts October 15, 2010 per curiam Decision cleared the name of the unnamed legal researcher. While what was at stake in Biraogo was the "physical integrity" of a ponencia, what is at stake in the present case is the "intellectual integrity" of a ponencia. The Court is committing a disservice to its judicial function if it values the physical form of a decision more than what a decision substantially contains. Moreover, the liability of Justice Reyes did not save the day for Atty. Evangelista who, as the judicial staff head, was tasked to secure and protect the copies of the Limkaichong Decision. Similarly in the present case, independently of Justice Del Castillos "shortcomings," the legal researcher, who was the lone drafter, proofreader and citechecker, was tasked like any other Court Attorney to secure and ensure the substance and legal reasoning of the Vinuya Decision. Like Justice Reyes, Justice Del Castillo can only do so much in claiming responsibility and full control of his office processes and shielding the staff under the mantle of his impeachable wings. Notably, Rule 10.2 of Canon 10 of the Code of Professional Responsibility states that lawyers shall "not knowinglymisquote or misrepresent the contents of a paper, the language or the argument of opposing counsel, or the text of a decision or authority, or knowingly cite as law a provision already rendered inoperative by repeal or amendment, or assert as a fact that which has not been proved." While the provision presupposes knowledge or willful intent, it does not mean that negligent acts or omissions of the same nature by lawyers serving the government go scot-free. Simple neglect of duty is defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference.17

I submit that the legal researcher was remiss in her duties of re-studying the sources or authorities invoked in theVinuya Decision and checking the therein citations or, at the very least, those whose authors rights to attribution and integrity are protected under Intellectual Property Law. While it is incumbent upon her to devise ways and means of legal research, her admitted method or process as shown in the Vinuya case reflects a disregard of a duty resulting from carelessness or indifference. She failed to exercise the required degree of care to a task expected of a lawyeremployee of the Supreme Court. While the Court recognizes that there were indeed lapses in the editorial work in the drafting of the Vinuya Decision, it easily attributed them to "accidental deletions." It conveniently assigned such human errors to the realm of accidents,without explaining whether it could not have been foreseen or avoided. I, therefore, posit that the legal researcher, who must hitherto be named, is liable for Simple Neglect of Duty and must be ordered to pay a Fine in the amount of, following Biraogo, P10,000.00, with warning of more severe sanctions for future similar conduct. Whether liability attaches to what the October 15, 2010 per curiam Decision finds to be deletion or omission of citation "unquestionably due to inadvertence or pure oversight," the fact remains, nonetheless, that there is a need for a textual correction of the Vinuya Decision. This Court should cause the issuance of a corrected version in the form of, what Justice Ma. Lourdes P. A. Sereno suggests as, a "corrigendum." The matter of making corrections in judicial issuances is neither novel nor something beneath the Court. As early as February 22, 2000, the Court already accepted the reality of human error. In A.M. No. 00-2-05-SC, "In the Matter of Correction of Typographical Errors in Decisions and Signed Resolutions," the Court provided a simple procedure in making proper corrections: Inadvertent typographical errors in decisions and signed resolutions of the Court may occur every now and then. As these decisions and signed resolutions are published and preserved for posterity in the Philippine Reports, the Supreme Court Reports Annotated, and other publications as well as in the Supreme Court website, the need for making them free of typographical errors cannot be overemphasized. Care should, therefore, be taken in proofreading them before they are submitted for promulgation and/or publication. Nevertheless, should typographical errors be discovered after the promulgation and/or publication of decisions and resolutions, the following procedure should be observed to the end that unauthorized corrections, alterations, or intercalations in what are public and official documents are not made. 1. In case of decisions and signed resolutions with the author[s] names indicated, the Reporter and the Chief of the Management Information Systems Office of the Supreme Court should secure the authority of the author concerned to make the necessary correction of typographical errors. In case of per curiam decisions and unsigned resolutions, authority to make corrections should be secured from the Chief Justice. 2. The correction of typographical errors shall be made by crossing out the incorrect word and inserting by hand the appropriate correction immediately above the cancelled word. Such correction shall be authenticated by the author by signing his initials immediately below the correction. In per curiam decisions and unsigned resolutions, and in cases where the author is no longer a member of the Court, the authentication shall be made by the Chief Justice.

3. The Reporter and the Chief of the Management Information Systems Office shall submit to the Court, through the Clerk of Court, a quarterly report of decisions and resolutions in which corrections have been made. The Clerk of Court must thereafter include the report in the agenda of the Court en banc. This resolution takes effect immediately. Despite the avowals of "slip in attribution," "bad footnoting," and "editorial error" in the Courts October 15, 2010 per curiam Decision, to date no effort has been made to correct the Vinuya Decision in conformity with A.M. No. 00-2-05-SC, which only implies that the lapses are not typographical in nature. The corrections of the Vinuya Decision cannot simply be made by crossing out the incorrect word and inserting by hand the appropriate correction immediately above the cancelled word, with authentication by the ponente or writer. CONCHITA CARPIO MORALES Associate Justice

Footnotes
1

Constitution, Art. XI, Sec. 2.

Cuenco v. Fernan, Adm. Case No. 3135, February 17, 1988, 158 SCRA 29; vide also the Resolution of April 15, 1988 (160 SCRA 778) where the complainant was severely reprimanded and warned.
3

A.M. No. 88-4-5433, April 15, 1988, 160 SCRA 771. Id. at 774. Id. at 776-777. A.C. No. 4509, December 5, 1995, 250 SCRA xi.

Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, March 4, 2005, 452 SCRA 714, 734-735.
8

In discussing the word "incapacitated," Bernas said that the power to determine incapacity is part of the overall administrative power which the Supreme Court has over its members and over all members of the judiciary [Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003), p. 988].
9

A.M. No. 10-4-20-SC (May 4, 2010). Id., Rule 2, Sec. 3, par. (h).

10

11

This framework of constitutional law likewise explains why incumbent Justices of the Supreme Court, by virtue of their being impeachable officers, are not included from the

operation of A.M. No. 02-9-02-SC on the "Automatic Conversion of Some Administrative Cases Against Justices of the Court of Appeals and the Sandiganbayan, Judges of Regular and Special Courts, and Court Officials Who Are Lawyers as Disciplinary Proceedings Against Them Both as Officials and as Members of the Philippine Bar" (September 17, 2002). The rule provides that when the said administrative case is based on grounds which are likewise grounds for a disciplinary action of members of the Bar, the administrative case shall also be considered a disciplinary action against the respondent justice, judge or court official concerned as a member of the Bar [as applied inAvancena v. Liwanag, A.M. No. MTJ-01-1383, March 5, 2003, 398 SCRA 541 and July 17, 2003, 406 SCRA 300 where the judge was dismissed from service and disbarred from the practice of law. See also Juan de la Cruz (Concerned Citizen of Legazpi City) v. Carretas, A.M. No. RTJ-07-2043, September 5, 2007, 532 SCRA 218; Caada v. Suerte, A.M. No. RTJ-04-1884, February 22, 2008, 546 SCRA 414]. Its application to a particular administrative action is not dependent on the date of commission of the offense but on the date of filing of the case. There is no automatic conversion when the administrative case was filed before October 1, 2002 or prior to the date of effectivity of A.M. No. 02-9-02-SC (vide Office of the Court Administrator v. Morante, A.M. No. P-02-1555, April 16, 2004, 428 SCRA 1, 35-36; J. King and Sons Company, Inc., v. Hontanosas, Jr., A.M. No. RTJ-03-1802, February 28, 2006 Resolution) and the respondent has already been required to comment on the complaint (Heck v. Santos, A.M. No. RTJ-011657, 23 February 2004, 423 SCRA 329, 341).
12

A.M. No. 09-2-19-SC, February 24, 2009, 580 SCRA 106. Id. at 164. Id. The Court explained: Liability of Atty. Rosendo B. Evangelista The Committee finds that Atty. Evangelista, Justice Reyes Judicial Staff Head, was remiss in his duties, which includes the supervision of the operations of the office, particularly with respect to the promulgation of decisions. While it is incumbent upon him to devise ways and means to secure the integrity of confidential documents, his actuations reflected above evinced "a disregard of a duty resulting from carelessness or indifference." Atty. Evangelista was admittedly unmindful of the responsible safekeeping of draft ponencias in an unlocked drawer of a member of the staff. He failed to make sure that the unused portion of confidential documents like the second signatory page of the ponencia in Gilbert form had been properly disposed of or shredded. He was not on top of things that concerned the promulgation of ponencias, for he failed to ascertain the status and procedural implication of an "on hold" order after having been apprised thereof by his subordinate, Del Rosario, on July 17, 2008. Despite his awareness that the Limkaichong case would eventually be called again, he admitted that he was not privy to the preparation of the copy of the ponencia for the subsequent session on July 29, 2008. With these findings, the Court finds him liable for SIMPLE NEGLECT OF DUTY. Liability of Armando Del Rosario

13

14

The committee likewise finds Del Rosario administratively liable for failing to exercise the required degree of care in the custody of the Gilbert copy. Del Rosario admittedly kept the Gilbert copy in an unlocked drawer from July 16, 2008 to December 10, 2008 when he should have known that, by the nature of the document in his custody, he should have kept it more securely. His carelessness renders him administratively liable for SIMPLE NEGLECT OF DUTY, defined as the failure to give proper attention to a task expected of an employee resulting from either carelessness or indifference. Time and again, the Court has emphasized the heavy burden and responsibility which court officials and employees are mandated to carry. They are constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided. The Court will never countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish the peoples faith in the judiciary. Under Section 23, Rule XIV of the Omnibus Civil Service Rules and Regulations, (simple) neglect of duty is punishable by suspension of one month and one day to six months for the first offense. Under Sec. 19, Rule XIV of the same Rules, the penalty of fine (instead of suspension) may also be imposed in the alternative. Following the Court's ruling in several cases involving (simple) neglect of duty, we find the penalty of fine on Atty. Evangelista and Del Rosario in the amount of P10,000 and P5,000, respectively, just and reasonable. (Id. at 161-163; emphasis, italics and underscoring in the original).
15

People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

16

Vide Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004); A.M. No. 04-10-11-SC of November 14, 2004 (Rule on Violence against Women and their Children); and A.M. No. 99-7-06-SC, In Re Internet Web page of the Supreme Court, Resolution of February 14, 2006.
17

In Re: Undated Letter of Mr. Louis Biraogo, supra at 162, citing Rivera v. Buena, A.M. No. P-07-2394, February 19, 2008, 546 SCRA 222.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION BRION, J.: Background Facts The present administrative disciplinary case against Supreme Court Associate Justice Mariano C. del Castillo stemmed from the decision he penned for the Court in G.R. No. 162230,

entitled Isabelita C. Vinuya, et al. v. Executive Secretary. The Vinuya Decision was promulgated on April 28, 2010 with 13 justices of this Court concurring with the ruling to dismiss the case. On July 19, 2010, Attys. Harry Roque and Rommel Bagares, counsels for petitioners Vinuya, et al., filed a Supplemental Motion for Reconsideration raising, among others, the plagiarism allegedly committed by Justice del Castillo for using the works of three foreign legal authors in his ponencia. They alleged that the use was without proper attribution and that Justice del Castillo twisted the foreign authors works to support the Decision. They considered it "highly improper for x x x the Court x x x to wholly lift, without proper attribution, from at least three sources an article published in 2009 in the Yale Law Journal of International Law,1 a book published by the Cambridge University Press in 2005,2 and an article published in the Case Western Reserve Journal of International Law3 and to make it appear that these sources support the assailed Judgments arguments for dismissing [their] petition[,] when in truth, the plagiarized sources even make a strong case for the Petitions claims[.]"4 In reply to the accusation, Justice del Castillo wrote and circulated a letter dated July 22, 2010 to the members of this Court. On July 27, 2010, the Court decided to refer the letter to the Ethics and Ethical Standards Committee (the "Ethics Committee" or "committee") which docketed it as an administrative matter. The committee required Attys. Roque and Bagares to comment on Justice del Castillos letter, after which it heard the parties. After the parties memoranda, the committee submitted its findings and recommendations to the Court. The Courts Decision on the Plagiarism Charge against Justice del Castillo In a Decision dated October 12, 2010, the Court resolved to dismiss the plagiarism charges against Justice del Castillo. It recognized that indeed certain passages of the foreign legal article were lifted and used in the Vinuya Decision and that "no attributions were made to the x x x authors in [its] footnotes."5 However, the Court concluded that the failure to attribute did not amount to plagiarism because no malicious intent attended the failure; the attributions (present in Justice del Castillos original drafts) were simply accidentally deleted in the course of the drafting process. Malicious intent was deemed an essential element, as "plagiarism is essentially a form of fraud where intent to deceive is inherent." Citing Blacks Law Dictionarys definition of plagiarism the deliberate and knowing presentation of another persons original ideas or creative expressions as ones own the Court declared that "plagiarism presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own." In fact, the Court found that by citing the foreign authors original sources, Justice del Castillo never created the impression that he was the original author of the passages claimed to have been lifted from the foreign law articles: The Court also adopts the Committees finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place. As to the charge that Justice del Castillo twisted the meaning of the works of the foreign authors, the Court ruled that it was impossible for him to have done so because: first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo "twisted" their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories

regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens. The Court, thus, declared that "only errors [of judges] tainted with fraud, corruption, or malice are subject of disciplinary action" and these were not present in Justice del Castillos case; the failure was not attended by any malicious intent not to attribute the lifted passages to the foreign authors. Justice Maria Lourdes P. A. Sereno dissented from the Courts October 12, 2010 Decision based mainly on her disagreement with the majoritys declaration that malicious intent is required for a charge of plagiarism to prosper. On November 15, 2010, Attys. Roque and Bagares filed a motion for reconsideration of the Courts October 12, 2010 Decision. This motion was the subject of the Report/Resolution submitted to the Court for consideration. Incidentally, the same counsels filed an impeachment complaint for betrayal of public trust against Justice del Castillo with the House of Representatives on December 14, 2010. The Courts Action on the Motion for Reconsideration The Court referred the motion for reconsideration to the Ethics Committee and its Report recommended the dismissal of the motion for reconsideration. The Report differentiated academic writing from judicial writing, declaring that originality of ideas is not required of a judge writing decisions and resolving conflicts because he is bound by the doctrine of stare decisis the legal principle of determining points in litigation according to precedents. The Report likewise declared that the foreign authors, whose works were claimed to have been plagiarized, were not themselves the originators of the ideas cited in the Vinuya Decision. While the Vinuya Decision did not mention their names, it did attribute the passages to the original authors from whom these foreign authors borrowed the ideas. There was, thus, no intent on the part of Justice del Castillo to appropriate the ideas or to claim that these ideas originated from him; in short, he did not pass them off as his own. Justice Antonio T. Carpio dissented from the Report, based on two grounds: a. the Court has no jurisdiction over the administrative case as it involves a sitting Supreme Court Justice, for alleged misconduct committed in office; and b. the judge, when writing judicial decisions, must comply with the law on copyright and respect the moral right of the author to have the work copied attributed to him. My Position I fully support the conclusions of the Ethics Committee. I likewise take exception to Justice Carpios Dissenting Opinion, specifically on his position that the Court has no jurisdiction to discipline its Members as the only means to discipline them is through impeachment proceedings that the Congress has the sole prerogative to undertake. Impeachment, he declares, functions as the equivalent of administrative disciplinary proceedings. Since the Congress is given the exclusive power to initiate,6 try, and decide7 all cases of impeachment, Justice Carpio posits that the Congress serves as the exclusive disciplining authority over all impeachable officers. He warns that for the

Supreme Court to hear the present administrative disciplinary case would be to usurp this exclusive power of Congress. Jurisdiction of the Supreme Court to Discipline its Members A given in the discipline of Members of the Supreme Court is that they can only be "removed from office" through impeachment, as provided under Article XI of the Constitution, on the specified grounds of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of the public trust. The purpose of impeachment and the constitutional interest sought is to protect the people and the State from official delinquencies and other malfeasances.8 The Constitution, however, is not a single-purpose document that focuses on one interest alone to the exclusion of related interests; impeachment was never intended by the Constitution to be the totality of the administrative actions or remedies that the public or the Court may take against an erring Justice of the Court. Other related constitutional interests exist touching on other facets of the Judiciary and public accountability. They are, by themselves, equally compelling and demanding of recognition. Among the compelling interests that the Constitution zealously guards is judicial independence because it is basic to the meaning and purposes of the Judiciary. This interest permeates the provisions of Article VIII of the Constitution.9 Another interest to consider is the need for judicial integrity a term not expressly mentioned in the Article on the Judiciary (Article VIII), but is a basic concept found in Article XI (on Accountability of Public Officers) of the Constitution. It is important as this constitutional interest underlies the independent and responsible Judiciary that Article VIII establishes and protects. To be exact, it complements judicial independence as integrity and independence affect and support one another; only a Judiciary with integrity can be a truly independent Judiciary. Judicial integrity, too, directly relates to public trust and accountability that the Constitution seeks in the strongest terms. The same Article XI contains the impeachment provisions that provide for the removal of Justices of the Supreme Court. Notably, a common thread that runs through all the grounds for impeachment is the lack of integrity of the official impeached on these grounds. Still another unavoidable consideration on impeachment and its limited grounds is that it cannot, by itself, suffice to protect the people and foster the public accountability that the Constitution speaks of. While it is a powerful weapon in the arsenal of public accountability and integrity, it is not a complete weapon that can address and fully achieve its protective purposes. As discussed more fully below, not all complaints and grievances can be subsumed under the defined constitutional grounds for impeachment. Members of the Court can commit other offenses not covered by the impeachable offenses, for which other offenses they should equally be held accountable. These other offenses must of course be administratively addressed elsewhere if they cannot be similarly addressed through impeachment; the people will not accept an interpretation that these are offenses that fell through the constitutional cracks and can no longer be administratively addressed. These considerations, taken together, dictate against the position of Justice Carpio that the Congress alone, through impeachment and to the exclusion of this Court, can proceed against the Members of the Court. Protection of Judicial Integrity For the purpose of preserving judicial integrity, the Supreme Court has as much (and in fact, should have more) interest as the public or as any other branch of the government in overseeing the conduct of members of the Judiciary, including its own Members. This is precisely the reason for the

Judiciarys Code of Judicial Conduct and the lawyers Code of Professional Responsibility. Judicial integrity is not only a necessary element in the orderly and efficient administration of justice; it is almost literally the lifeblood of the Judiciary. A Judiciary, dissociated from integrity and the public trust that integrity brings, loses its rightful place in the constitutional democratic scheme that puts a premium on a reliable and respected third branch of government that would balance the powers of the other two branches. To ensure the maintenance and enhancement of judicial integrity, the Constitution has given the Judiciary, mainly through the Supreme Court, a variety of powers. These powers necessarily begin with the power to admit and to discipline members of the bar10 who are officers of the courts and who have the broadest frontline interaction with the courts and with the public. Courts in general have the power to cite for contempt11 that proceeds, not only from the need to maintain orderly procedures, but also from the need to protect judicial integrity in the course of the courts exercise of judicial power. The Supreme Court has the power to discipline and remove judges of lower courts.12 In this role, the Court hears administrative disciplinary cases against lower court judges for purposes of redress against erring judges and, more importantly, to "[preserve] the integrity of the judicial system and public confidence in the system and x x x [to safeguard] the bench and the public from those who are unfit."13 As concrete legal basis, the Supreme Court is expressly granted the general power of administrative supervision overall courts and the personnel thereof.14 By its plain terms, the power extends not only to the authority to supervise and discipline lower court judges but to exercise the same powers over the Members of the Court itself. This is the unavoidable meaning of this grant of authority if its main rationale i.e., to preserve judicial integrity is to be given full effect. The Supreme Court must ensure that the integrity of the whole Judiciary, its own Members included, is maintained as any taint on any part of the Judiciary necessarily taints the whole. To state the obvious, a taint in or misconduct by any Member of the Supreme Court even if only whispered about for lack of concrete evidence and patriotic whistleblowers carries greater adverse impact than a similar event elsewhere in the Judiciary. Independent of the grant of supervisory authority and at a more basic level, the Supreme Court cannot be expected to play its role in the constitutional democratic scheme solely on the basis of the Constitutions express grant of powers. Implied in these grants are the inherent powers that every entity endowed with life (even artificial life) and burdened with responsibilities can and must exercise if it is to survive. The Court cannot but have the right to defend itself to ensure that its integrity and that of the Judiciary it oversees are kept intact. This is particularly true when its integrity is attacked or placed at risk by its very own Members a situation that is not unknown in the history of the Court. To be sure, judicial integrity cannot be achieved if the Court can police the ranks of the lower court judges but not its own ranks. From this perspective view, it is unthinkable that the Supreme Court can only watch helplessly for the reason that the power to act is granted only to Congress under the terms of the Constitution as its own Members prostitute its integrity as an institution. Impeachment Grounds are Limited That an impeachment partakes of the nature of an administrative disciplinary proceeding confined to the defined and limited grounds of "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, and betrayal of public trust"15 cannot be disputed. However, it cannot likewise be disputed that these grounds, as defined, refer only to those serious "offenses that strike at the very heart of the life of the nation."16 Thus, for "betrayal of public trust" to be a ground for impeachment, the "manner of commission must be of the same severity as treason and bribery."17 With respect to members of the High Court, impeachment is considered "as a response to serious misuse of judicial power"18 no less equivalent to treason or bribery.

Directly implied from these established impeachment principles is that "removal from office (the imposable penalty upon impeachment and conviction) is not the price exacted for every incident of judicial misconduct."19 Otherwise stated, that impeachment administratively addresses only serious offenses committed by impeachable officers cannot imply that the Constitution condones misdemeanors and misconduct that are not of equal gravity. For, side by side with the constitutional provision on impeachment is the constitutional policy that "public office is a public trust" and that "public officers and employees must, at all times, be accountable to the people."20 Even impeachable officials, despite the nature and level of their positions, must be administratively accountable for misconduct and misdemeanors that are of lesser gravity than the defined impeachable offenses. Only this approach and reconciled reading with the provision on impeachment can give full effect to the constitutional policy of accountability. If this were not the case, then the public would be left with no effective administrative recourse against Supreme Court Justices committing less than grave misconduct. One American writer, Brent D. Ward, writes on this point that: It would be a serious weakness in our system to place systematic judicial misconduct beyond the reach of any remedy save impeachment. There are limits beyond which no person even a federal judge should be allowed to go with impunity. The courts themselves have the power and the duty to curtail the effect of repeated contrary and erratic actions of a judge that occur too frequently to permit effective appellate supervision in the run of cases. xxxx [The] Constitution does x x x shield [judges] from corrective action by other judges designed to ensure that the law is effectively administered. The appellate courts have the power to prevent action so obviously improper as to place it beyond established rules of law.21 Adverse Effects of Expansive View of Impeachment Grounds If impeachment were to be the only administrative proceeding to hold Justices of this Court accountable, then the grounds for impeachment may arguably carry a definition beyond the traditionally grave or serious character these offenses have always carried. An expanded definition, however, is no different from the remedy of burning a house to kill a rat. While such definition in the long run may kill more rats or assuredly do away with a particularly obnoxious rat, it will at the same time threaten and adversely affect a more valuable constitutional interest the independence of the Judiciary that allows magistrates to conscientiously undertake their duties, guided only by the dictates of the Constitution and the rule of law. It needs no elaborate demonstration to show that the threat of impeachment for every perceived misconduct or misdemeanor would open Justices of the Court to harrassment. A naughty effect if administrative redress can only be secured from Congress to the exclusion of this Court under an expanded definition of impeachment grounds is to encourage every litigant with a perceived grievance against a Justice of this Court to run to his congressman for the filing of an impeachment complaint. Undoubtedly, this kind of scenario will be a continuing threat to judges and justices, with consequential adverse effects on the Judiciary, on inter-branch relationship, and on the respect the public may give the Judiciary, the Legislature, and even of the government itself. Worse, this kind of scenario may ultimately trivialize the impeachment process and is thus best avoided.

An expansive interpretation of the grounds for impeachment must also affect Congress which acts on impeachment complaints but whose main task under our structure of government is to legislate, not to police the Supreme Court and other impeachable officers. To say the least, a deluge of impeachment complaints may prove to be impractical for Congress because impeachment is both an arduous and a time consumming process that will surely divert congressional time and other resources from the principal function of lawmaking. The US Practice In the United States (US) federal courts, "the impeachment process has not been the only check on federal judges [who are removable through impeachment] who may have abused their independence, or the only assurance of their accountability."22 The US National Commission on Judicial Discipline and Removal has posited that there must be "a power in the judiciary to deal with certain kinds of misconduct [as this will further] both the smooth functioning of the judicial branch and the broad goal judicial independence." Along this line, the US Congress created a system enforcing an internal judicial self-discipline through the judicial councils under their Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (the US 1980 Act). The judicial council (composed of the federal judges within a specific judicial circuit) is considered as a "formal and credible supplement to the impeachment process for resolving complaint of misconduct or disability against federal judges."23The judicial council of a federal circuit, through the chief judge, is authorized to receive and to act on complaints about the conduct of judges who are removable only through impeachment. If there is merit to a complaint, the judicial council can "take appropriate action, which may include censure, reprimand, temporary suspension, and transfer of cases, but not removal from office. If the judicial council believes that it has uncovered grounds for impeachment, the council is empowered to report its findings to the Judicial Conference of the United States, which after an investigation, may report its findings to the House of Representatives."24 Arguably, the existence of a judicial council as an additional or supplemental check on US federal judges is statutory and no equivalent statute has been enacted in our jurisdiction specifically establishing in our Supreme Court a system of internal judicial self-discipline. This argument, however, loses sight of the constitutional authority of our Supreme Court to govern the conduct of its members under its power of general administrative supervision over all courts a power that the Philippine Constitution expressly grants to our Supreme Court to the exclusion of remedies outside of the Judiciary except only for impeachment. Interestingly, even in the US, the view has been taken that the enactment of a statute conferring disciplinary power to the Court over its own members may be unnecessary as the Supreme Court itself may assume this power. This is implied from the following recommendation of the US National Commission on Judicial Discipline and Removal which states: [I]t may be in the [US Supreme] Courts best interest, as contributing to the publics perception of accountability, to devise and adopt some type of formal procedure for the receipt and disposition of conduct and disability complaints. The Commission recommends that the Supreme Court may wish to consider the adoption of policies and procedures for the filing and disposition fo complaints alleging misconduct against Justices of the Supreme Court.25 Note should be taken in these regards that the Philippine Supreme Court has already put in place various Codes governing ethical rules for the bar and for the Judiciary. The Code of Judicial Conduct applies to all members of the Judiciary, including the Members of the Supreme Court. The Code of

Professional Responsibility applies to all lawyers, thus, necessarily to Members of the Court for whom membership in the bar is an essential qualification. The Court as well has codified the Internal Rules of the Supreme Court. A Rule on Whistleblowing is presently under consideration by the Court en banc. What is crucial in the establishment of the judicial council system in the US is the implication that no inherent incompatibility exists between the existence of Congress power to impeach and the Supreme Courts power to discipline its own members; the two powers can co-exist and, in fact, even supplement each other. The constitutionality of recognizing disciplinary power in the courts over their own impeachable members (as provided in the US 1980 Act), vis--vis the Congress power to remove the same officials by impeachment, has been addressed before the US Court of Appeals in the case of McBryde v. Commission to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the US26: Judge McBryde frames his separation of powers claim as whether the Constitution "allocates the power to discipline federal judges and, if so, to which branches of government." Finding that it allocates the power to Congress in the form of impeachment, he concludes that it excludes all other forms of discipline. But Judge McBryde's attempt to fudge the distinction between impeachment and discipline doesn't work. The Constitution limits judgments for impeachment to removal from office and disqualification to hold office. It makes no mention of discipline generally. The Supreme Court recently observed that it accepted the proposition that "[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode." But application of the maxim depends on the "thing to be done." Here the thing to be done by impeachment is removal and disqualification, not "discipline" of any sort. Thus, when the conduct of a member of the Supreme Court is improper but is not of such gravity to be considered as an impeachable offense, the Court to protect its integrity may address the misconduct through an administrative disciplinary case against the erring member. Conclusion: Court can hear the case against Justice del Castillo as an Administrative Matter What the impeachment provisions of the Constitution guarantee is simply the right to be removed from office only through the process of impeachment and not by any other means; it does not preclude the imposition of disciplinary sanctions short of removal on the impeachable official. Impeachment is the sole means of removal, but it is certainly not the sole means of disciplining Members of the Supreme Court or, for that matter, public officials removable by impeachment. Accordingly, I believe that the Court has the authority to hear the present administrative disciplinary case against Associate Justice Mariano del Castillo; in case of a finding of misconduct, it can impose penalties that are not the functional equivalent of removal or dismissal from service. If, in the exercise of its prerogative as interpreter of the Constitution, it determines that an act complained of falls within the defined grounds for impeachment, then the Court should say so and forthwith forward its recommendations to Congress as the body constitutionally mandated to act in impeachment cases. Courts Interpretation of Plagiarism - limited to its Concept as an Ethical violation of Members of the Judiciary. The dissatisfaction with the Courts October 12, 2010 Decision (resolving the plagiarism charge against Justice del Castillo or the "plagiarism Decision") primarily lies with the Courts declaration that malicious intent is a necessary element in committing plagiarism. In the plagiarism Decision, the Court said:

[P]lagiarism presupposes intent and a deliberate, conscious effort to steal anothers work and pass it off as ones own. Why we deemed malicious intent as a necessary element for judicial plagiarism can be explained by our repeated pronouncement that: not every error or mistake committed by judges in the performance of their official duties renders them administratively liable. In the absence of fraud, dishonesty or deliberate intent to do an injustice, acts done in their official capacity, even though erroneous, do not always constitute misconduct. Only errors that are tainted with fraud, corruption or malice may be the subject of disciplinary action. For administrative liability to attach, respondent must be shown to have been moved by bad faith, dishonesty, hatred or some other motive. Indeed, judges may not be held administratively liable for any of their official acts, no matter how erroneous, as long as they acted in good faith.27 The term plagiarism does not have a precise statutory definition as it is not a matter covered by present Philippine statutes.28 What the Intellectual Property Code (Republic Act 8283)29 defines and punishes is "copyright infringement." However, these terms are not legally interchangeable. Laurie Stearns, copyright lawyer and author of the article "Copy Wrong: Plagiarism, Process, Property, and the Law" aptly observes the distinctions between the two in this wise: Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily plagiarism. The two concepts diverge with respect to three main aspects of the offense: copying, attribution and intent. In some ways the concept of plagiarism broader than infringement, in that it can include the copying of ideas or of expression not protected by copyright, that would not constitute infringement and it can include copying of small amounts of material that would be disregarded under copyright law. In other ways the concept of infringement is broader, in that it can include both properly attributed copying and unintentional copying that would be excused from being called plagiarism. The divergence between plagiarisms popular definition and copyrights statutory framework suggests an essential contradiction between what is at stake in plagiarism the creative process and what is at stake in copyright infringement the creative result.30 Separately from these distinctions, the matter before the Court is Justice del Castillos alleged plagiarism or failure to make attributions as an ethical violation, not a copyright violation under the Intellectual Property Code. Given these distinctions, I see no reason to quibble over the definition of plagiarism a term that, in the absence of any statutory limitation, the Court can define and interpret for purposes of its administrative authority over all courts and the personnel thereof. From the point of view of ethical rules, what are important are the intent in undertaking an act and the concepts of integrity, propriety, honesty and impartiality for purposes of dispensing justice by an independent Judiciary. It is in this sense, and in light of the nature of the present case as an administrative disciplinary charge against a Member of this Court, that the pronouncement of this Court on plagiarism and on the merits of the ethical charge should be understood. In this light, I find it misplaced for Justice Sereno to describe the Courts Decision as: [creating] unimaginable problems for Philippine academia, which will from now on have to find a disciplinary response to plagiarism committed by students and researchers on the justification of the majority Decision.

It has also undermined the protection of copyrighted work by making available to plagiarists "lack of malicious intent" as a defense to a charge of violation of copy or economic rights of the copyright owner committed through lack of attribution. xxxx Because the majority Decision has excused the lack of attribution to the complaining authors in the Vinuya decision to editorial errors and lack of malicious intent to appropriate and that therefore there was no plagiarism lack of intent to infringe copyright in the case of lack of attribution may now also become a defense, rendering the above legal provision meaningless.31 When the Supreme Court acts on complaints against judges under its supervision and control, it acts as an administrator imposing discipline and not as a court passing upon justiciable controversies.32 It is precisely for this reason that disciplinary cases are docketed as "Administrative Matters" or "A.M."33 Hence, any interpretation by the Court of "plagiarism" is limited to this context and cannot be held to bind the academe in undertaking its educational functions, particularly its own power to define plagiarism in the educational context. It likewise cannot bind Congress in its role as the sole authority to determine what constitutes an impeachable offense, subject to what I stated above on the established scope of impeachable offenses and the power of the Court to act in grave abuse of discretion situations under the Constitution. Specifically, a finding by this Court that plagiarism was or was not committed cannot preclude Congress from determining whether the failure or omission to make an attribution, intentionally or unintentionally, amounts to a "betrayal of public trust." For these reasons, I support the conclusion of the Ethics and Ethical Standards Committee that Justice Mariano C. del Castillos attribution lapses did not involve any ethical violation. I vote for the approval of the Committees Report and for the denial of the petitioners Motion for Reconsideration. ARTURO D. BRION Associate Justice

Footnotes
1

A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent. Enforcing Erga Omnes Obligations in International Law by Christian J. Tams. Breaking the Silence: On Rape as an International Crime by Mark Ellis.

Petitioners Vinuya, et al.s Supplemental Motion for Reconsideration dated July 18, 2010, p. 2.
4 5

Specifically, the Court referred to the article A Fiduciary Theory of Jus Cogens written by Criddle-Decent and Fox.
6

CONSTITUTION, Article XI, Section 3(1). The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

Id., Section 3(6). The Senate shall have the sole power to try and decide all cases of impeachment.
8

See De Leon, Philippine Constitutional Law, Vol. II, 2004 Ed., p. 831.

See, among others, security of tenure at Section 1; fiscal autonomy under Section 2; defined jurisdiction that Congress cannot touch without concurrence from the Supreme Court; administrative supervision over all courts under Section 6; a Judicial and Bar Council that renders recourse to the Commission on Appointments unnecessary; and the guarantee of strict focus on judicial duties under Section 12.
10

CONSTITUTION, Article VIII, Section 5(5); RULES OF COURT, Rules 138 and 139-B. RULES OF COURT, Rule 71. CONSTITUTION, Article VIII, Section 11; RULES OF COURT, Rule 140.

11

12

13

Cynthia Gray, A Study of State Judicial Discipline Sanctions, American Judicature Society (2002), at <www.ajs.org/ethics/pdfs/Sanctions.pdf>, last visited February 9, 2011. The article also cites other reasons: impressing upon the judge the severity and significance of the misconduct; deterring similar conduct by the judge and others; reassuring the public that judicial misconduct is not tolerated or condoned; and fostering public confidence in the selfpolicing system.
14

See Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009 ed.), p. 1012, and Hector S. De Leon, Philippine Constitutional Law: Principles and Cases, Volume 2 (2004 ed.), p. 595.
15

CONSTITUTION, Article XI, Section 2. See Bernas, supra, note 14, p. 1113. Ibid.

16

17

18

Robert W. Kastenmeier, Report of the National Commission on Judicial Discipline and Removal (March 1994), 152 F.R.D. 265, at <judicial-discipline-reform.org/judicialcomplaints/1993-Report-Removal.pdf>, last visited on February 9, 2011.
19

Cynthia Gray, supra note 13, citing In re Lowery, 999 S.W.2d 639, 661 (Special Court of Review Appointed by Texas Supreme Court, 1998).
20

CONSTITUTION, Article XI, Section 1.

21

Brent D. Ward, Can the Federal Courts Keep Order in Their Own House? Appellate Supervision through Mandamus and Orders of Judicial Councils, 233 Bringham Young University Law Review 233, 237 and 253 (1980), at <heinonline.org/HOL/LandingPage?collection=journals&handle= hein.journals/byulr1980&div=177ID=&page=>, last visited on February 9, 2011.
22

Robert W. Kastenmeier, supra note 18.

23

Ibid.

24

Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Texas Law Review 1, 73-74 (November 1989).
25

Robert W. Kastenmeier, supra note 18. 264 F.3d 52 (2001). Cruz v. Iturralde, A.M. RTJ No. 03-1775, April 30, 2003, 402 SCRA 65.

26

27

28

George, Joyce J. "Judicial Opinion Writing Handbook." 5th edition. William S. Hein & Co., Inc., 2007, page 715, defines plagiarism as "the intentional representation of another persons words, thoughts or ideas as ones own without giving attribution."
29

AN ACT PRESCRIBING THE INTELLECTUAL PROPERTY CODE AND ESTABLISHING THE INTELLECTUAL PROPERTY OFFICE, PROVIDING FOR ITS POWERS AND FUNCTIONS, AND FOR OTHER PURPOSES
30

Stearns, Laurie. "Copy Wrong: Plagiarism, Process, Property and the Law." Perspectives on Plagiarism and Intellectual Property in a Postmodern World. Ed. Lise Buranen and Alice M. Roy. Albany, New York State University of New York Press. 1999. 5-6.
31

Dissenting Opinion of Justice Sereno in the Plagiarism decision. Icasiano v. Sandiganbayan, G.R. No. 95642, May 28, 1992, 209 SCRA 377.

32

33

See: Rule 4, Internal Rules of the Supreme Court, in relation with Section 4, Rule 6 on Docket Number and Entry in Logbook. Administrative cases are not listed as G.R. (General Register) cases as they are not acted upon in the exercise of the Courts judicial function.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION ABAD, J.: I fully concur in the majority opinion and would like to react to the separate dissenting opinions of Justices Antonio T. Carpio and Maria Lourdes P.A. Sereno. Justice Carpio has again graced the Courts rulings in this case with his typically incisive dissenting opinion. Still, I cannot agree with his views. He asserts that the sole disciplining authority of all impeachable officers, including the Justices of this Court, lies in Congress. This is quite true but only with respect to impeachable offenses that consist in "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust,"1 all offenses that warrant the removal of such officers and disqualification for holding any office in the government.2 The

Supreme Court has no intention of exercising the power of impeachment that belongs to Congress alone. Certainly, however, the Supreme Court has the administrative authority to investigate and discipline its members for official infractions that do not constitute impeachable offenses. This is a consequence of the Courts Constitutional power of "administrative supervision over all courts and the personnel thereof."3 When the Court decided earlier the plagiarism charge filed against Justice Mariano Del Castillo by the petitioners in Vinuya, it was under a belief that "plagiarism," which is not even a statutory offense, is an administrative infraction. The petitioners in that case did not themselves object to the proceedings conducted by the Courts Ethics Committee. Subsequently, a complaint for impeachment was filed against Justice Del Castillo before the House of Representatives based on the same charge of plagiarism. The Court cannot do anything about that but it is not the Court, denying the motion for reconsideration filed in the present case, which will provoke a constitutional crisis; if ever, it is the House of Representatives that will do so, seeing that the Court has already acted on such a charge under an honest belief that plagiarism is an administrative rather than an impeachable offense. Whether plagiarism is an administrative or an impeachable offense need not be decided by the Court in this case since no actual dispute has arisen between Congress and the Court regarding it. As for the alleged violation of the copyright law in this case, it should be sufficient to point out that no such charge has been lodged against Justice Del Castillo. What is more, the Court has no original jurisdiction over copyright law violations. I reserve in the appropriate case my view on whether or not lifting from copyrighted articles, without attribution, solely for the purpose of rendering a decision, constitutes violation of the copyright law. Justice Sereno castigates the majority in the Court for lowering the standards for judicial scholarship, negating the educative and moral directional value in the writing and publishing of decisions, bending over backwards to deny the objective existence of gross plagiarism, and condoning dishonesty in the exercise of a function central to the role of the courts. But our courts are in the business, not of "judicial scholarship," but of deciding fairly and honestly the disputes before them, using precedents and legal literature that, according to American scholars, belong to the public domain. If this is not honest work for a judge, I do not know what is. And Justice Sereno has no right to preach at the expense of the majority about "educative and moral directional value" in writing published articles. For one thing, her standards are obviously for work done in the academe, not for the judge plodding at his desk to perform government work. For another, I note that on occasions she has breached those very standards, lifting from works of others without proper attribution. Take Justice Serenos article, Toward the Formulation of a Philippine Position in Resolving Trade and Investment Disputes in APEC."4 Under the section subtitled "The WTO Dispute Settlement Mechanism," she said in the footnote that "[t]his section is drawn from Article XX and XXIII of the GATT 1994, Understanding on Dispute Settlement, and Working Procedures." To me, this means that in writing the section, she drew ideas from these four GATT issuances. I am reproducing below the beginning portions of Justice Serenos work that are relevant to this discussion. I underline what she copied verbatim from Annex 2 of the General Agreement on Tariffs and Trade (GATT) 1994, entitled "Understanding on Rules and Procedures Governing the Settlement of Disputes," or "Understanding on Dispute Settlement" for short.

The WTO Dispute Settlement Mechanism Dispute settlement under the WTO mechanism is the prompt settlement of situations in which a member considers that any benefit accruing to it directly or indirectly under the WTO Agreement is being impaired by measures taken by another member. A dispute settlement mechanism aims to secure a positive solution to a dispute. Thus, a solution mutually acceptable to the parties to a dispute is preferred. However, in the absence of a mutually agreed solution, the first objective is usually to secure the withdrawal of measures concerned. A measure is any internal act, whether a law, an administrative action, or a judicial decision of a member. The DSB is the WTO organ that is mandated to administer the rules and procedures that govern the settlement of disputes. It is made up of the representatives of all the members of the WTO. Each member is entitled to one vote. The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate Body reports, (c) to maintain surveillance of the implementation of rulings and recommendations, and (d) to authorize the suspension of concessions and other obligations. It is understood that requests for conciliation and the use of the dispute settlement procedures should not be viewed as contentious acts. Members engage in this procedure to resolve disputes. [copied] If a measure adopted by a country (A) within its territory impinges on, for example, the exports of another country (B), the first step in dispute settlement is the filing of a request for consultation by the complainant. In this case, B is the complainant. If B requests consultation with A, then A must consider the complaint of B. A must reply to the request within 10 days after its receipt and enter into consultations with B in good faith within a period of 30 days from the date of the request, with a view to reaching a mutually satisfactory solution. If A does not respond within 10 days, does not enter into consultations within a period of 30 days from the filing of the request, and if the consultation fails to settle a dispute within 60 days after the request for consultation, then B may proceed to request the establishment of a panel. Good offices, conciliation, and mediation may be requested at any time by any party to a dispute. They may begin and be terminated at any time. Once they are terminated, the complaining party can then request the establishment of a panel. If the complaining party so requests, a panel may be established by the DSB. The function of the panel is to assist the DSB in discharging its responsibilities. Accordingly, a panel should make an objective assessment of the matter before it, including the facts of the case and the applicability and conformity of the measure with the relevant agreements. It should also make other findings that will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements, besides consulting regularly with the parties to the dispute and giving them adequate opportunity to develop a mutually satisfactory solution. [Copied] The request for the establishment of a panel should be made in writing, indicate whether consultations were held, identify the specific measures at issue, and provide a brief summary of the legal basis of the complaint. [Copied] xxxx Notably, Justice Sereno began her above discussion with ideas presumably from her four sources, which she put together and fashioned into her own sentences and paragraphs. The ideas were from GATT but the presentation was original Sereno. Down the line, however, without introduction or

preamble, she copied verbatim into her work portions from Understanding on Dispute Settlement, without citing this specific source. More, she did not use quotation marks to identify the copied portions. She thus made ordinary readers like me believe that she also crafted those portions. To borrow a word from the civil code, she "co-mingled" the work of others with hers, erasing the identity of the lifted work. Justice Serenos explanation is that, since she was drawing from the rules embodied in GATTs Understanding on Dispute Settlement, she did not have to make attributions to those rules at each turn of her writing. She may be correct if she in fact properly cited those rules the first time she copied from it and, further, indicated a clear intent to do further copying down the line. But she did not. Properly, she could have written: xxxx The DSB has the following powers and functions: (a) to establish panels, (b) to adopt or reject panel and Appellate Body reports, (c) to maintain surveillance of the implementation of rulings and recommendations, and (d) to authorize the suspension of concessions and other obligations. GATTs Understanding on Dispute Settlement has a lot to say about the subject and some are mentioned here. For one it says, "It is understood that requests for conciliation and the use of the dispute settlement procedures should not be as contentious acts. Members engage in procedure to resolve disputes." xxxx Further, she did not identify the portions she copied verbatim in order to set them apart from her own writing. Under the rule that she foists on Justice Del Castillo, quotation marks must be used whenever verbatim quotes are made.5This requirement is all the more important since, unlike domestic rules, the rules of GATT are unfamiliar terrain to most readers. Thus, at the next turn, she could have at least enclosed in quotation marks the other portions she copied verbatim from her source like this: If the complaining party so requests, a panel may be established by the DSB. "The function of the panel is to assist the DSB in discharging its responsibilities. Accordingly, a panel should make an objective assessment of the matter before it, including the facts of the case and the applicability and conformity of the measure with the relevant agreements. It should also make other findings that will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements consul regularly with the parties to the dispute and giving them adequate opportunity to develop a mutually satisfactory solution." "The request for the establishment of a panel should be made in writing, indicate whether consultations were held, identify the specific measures at issue, and provide a brief summary of the legal basis of the complaint." What is more, learned lawyers would always set apart the laws or rules that they cite or invoke in their work since these are expressions of a higher grade than their comments or opinions. A lawyers opinion can persuade but a rule or a law is binding. I have yet to see a Supreme Court decision that copies verbatim a specific rule or law, which it invokes to support such decision, without distinctly calling it what it is or citing its source. Below is the rest of the verbatim copying that she made from Understanding on Dispute Settlement in the section she wrote without attribution or quotation marks.

Sereno, J. After receipt of comments from the parties, the panel shall issue an interim report to them, including both the descriptive sections and the panels findings and conclusions. The parties may submit written requests for the panel to review precise aspects of the interim report for which the panel shall meet with the parties. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the members. (page 7)

Original work - GATT Annex 2, Understanding on Dispute Settlement Following the expiration of the set period of time for receipt of comments from the parties to the dispute, the panel shall issue an interim report to the parties, including both the descriptive sections and the panels findings and conclusions. Within a period of time set by the panel, a party may submit a written request for the panel to review precise aspects of the interim report prior to circulation of the final report to the Members. At the request of a party, the panel shall hold a further meeting with the parties on the issues identified in the written comments. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the Members. [Article 15.2, GATT Annex 2]

When a panel or the AB concludes that a measure is inconsistent with a covered agreement, it shall recommend that the member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or AB may suggest ways by which the member concerned could implement the recommendations. (page 8)

Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations. [Article 19.1, GATT Annex 2]

The DSB shall adopt the report within 60 days of the issuance of a panel report to the members, unless one of the parties to the dispute formally notifies the DSB of its decision to appeal, or the DSB decides by consensus not to adopt the report. If the panel report is on appeal, the panel report shall not be considered for adoption by the DSB until the completion of the appeal. (page 7-8)

Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal. [Article 16.4, GATT Annex 2]

It may uphold, modify, or reverse the legal findings and conclusions of the panel. ( page 8)

The Appellate Body may uphold, modify or reverse the legal findings and conclusions

of the panel. [Article 17.13, GATT Annex 2] Note that the AB reviews only issues of law An appeal shall be limited to issues of law covered in the panel report and legal covered in the panel report and legal interpretation developed by the panel. (page interpretations developed by the panel. 8) [Article 17.6, GATT Annex 2] The DSB shall keep under surveillance the implementation of adopted recommendation or rulings. Any member may raise the issue of implementation of the recommendations or rulings at the DSB anytime following their adoption. (page 8) The DSB shall keep under surveillance the implementation of adopted recommendations or rulings. The issue of implementation of the recommendations or rulings may be raised at the DSB by any Member at any time following their adoption. [Article 21.6, GATT Annex 2] Going to another item in the same article, Justice Sereno copies significant lines from Oppenheims Treatise without making an attribution to that work. Sereno, J. In mediation, the third party facilitates the negotiations between the parties concerned. It involves direct conduct of negotiations between the parties at issue on the basis of proposals made by the mediator. On the other hand, good offices are a friendly offer by a third party, which tries to induce disputants to negotiate among themselves. Such efforts mayconsist of various kinds of actions tending to call negotiations between conflicting states into existence. (page 11) Original work Oppenheims Treatise The difference between [good offices and mediation] is that, whereas good offices consist in various kinds of action tending to call negotiations between the conflicting States into existence, mediation consists in a direct conduct of negotiations between the differing parties on the basis of proposals made by the mediator. [Oppenheim, International Law, A Treatise volume 2 page 11 (1920)]

Justice Sereno explains that "trite, common, standard statement[s]" like the ones she copied from Oppenheim has "nothing original at all about [them]" and need no citation or quotation marks. This is true. Indeed, the Court acknowledged in its October 12, 2010 decision that no plagiarism could be committed respecting "common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm." But I cite the above because Justice Sereno would not grant to Justice Del Castillo the liberty to use common definitions and terms in his ponencia without the correct attribution. In the original draft of this concurring opinion that I circulated among the members of the Court, I mentioned an article published in 2007 that Justice Sereno wrote with two others entitled Justice and the Cost of Doing Business.6 I found that a portion of this article appeared to have been reproduced

without attribution from a 2005 publication, the Asian Development Bank Country Governance Assessment (Philippines) 2005.7 Justice Sereno has since explained to my satisfaction that such portion came from the three co-authors earlier 2001 report submitted to the World Bank (WB). I am dropping it as a case of omission of attribution. Parenthetically, however, in the academic model, "dual and overlapping submissions" is a thesis writers sin. It simply means that the same academic work is submitted to gain credit for more than one academic course.8 In the publishing world, while not prohibited across the board, law journals and reviews frown upon authors who submit manuscripts which have been previously published elsewhere, since the purpose of publication is the circulation and distribution of original scholarship and the practice would permit the author to be credited twice for the same work. Notably, from the papers she furnished the members of the Court, it would seem that the WB Danish Trust Fund commissioned and paid for the 2001 study that Justice Sereno and her co-authors undertook. Indeed, the cover page of the WB paper she also provided shows that it was part of the "Document of the World Bank." I would assume, however, that Justice Sereno obtained WB authorization for the subsequent publication of the report in 2007. Next, in her memorandum for petitioners-intervenors Franklin M. Drilon and Adel A. Tamano in Province of North Cotabato, et al. v. Government of the Republic of the Philippines Peace and Panel on Ancestral Domain, et al.,9Justice Sereno lifted a famous phrase from the United States case of Baker v. Carr, 169 U.S. 180, without making attribution to her source. J. Sereno Second, there is no lack of a judicially discoverable and manageable standard for resolving the question, nor impossibility of deciding the question without an initial policy determination of a kind clearly for non-judicial discretion. Original Work Baker v. Carr Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion x x x [Baker v. Carr, 169 U.S. 186] Justice Sereno explains that, since she earlier cited Baker v. Carr in her memorandum, it would be utterly pointless to require her to repeat her citation as often as excerpts from the case appear down the line. It is not quite pointless because one who copies from the work of another has an obligation, she insists in her dissent, to make an attribution to his source. Otherwise, a writer can simply say at the start of his article that he is copying from a list of named cases and it would be up to the reader to guess where the copied portions are located in that article. An explanation like this from an academician is disheartening. In another article, Uncertainties Beyond The Horizon: The Metamorphosis of the WTO Investment Framework In The Philippine Setting,10 Justice Sereno also copied from the World Trade Organization fact sheet on line (prepared by the United States Department of Agriculture) without using quotation marks, and made the material appear to be her own original analysis. Thus: J. Sereno Original Work WTO Factsheet

The World Trade Organization (WTO) was established on January 1, 1995. It is a multilateral institution charged with administering rules for trade among member countries. The WTO functions as the principal international body concerned with multilateral negotiations on the reduction of trade barriers and other measures that distort competition. The WTO also serves as a platform for countries to raise their concerns regarding the trade policies of their trading partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development.

The World Trade Organization (WTO), established on January 1, 1995, is a multilateral institution charged with administering rules for trade among member countries. x x x The WTO functions as the principal international body concerned with multilateral negotiations on the reduction of trade barriers and other measures that distort competition. The WTO also serves as a platform for countries to raise their concerns regarding the trade policies of their trading partners. The basic aim of the WTO is to liberalize world trade and place it on a secure basis, thereby contributing to economic growth and development. [WTO FACTSHEET http://www.fas.usda. gov/info/factsheets/wto.html (last accessed February 13, 2008)]

Here again, Justice Sereno ignores her unbendable rule that one commits plagiarism by his "[f]ailure to use quotation marks to indicate that the entire paragraph in the body of the decisionwas not the ponentes original paragraph, but was lifted verbatim from [anothers] work." In his book entitled Economic Analysis of Law (2nd edition, 1977), Judge Richard A. Posner wrote: xxx Hence, settlement negotiations will fail, and litigation ensue, only if the minimum price that the plaintiff is willing to accept in compromise of his claim is greater than the maximum price the defendant is willing to pay in satisfaction of that claim. (At p. 435) Justice Sereno copied the above verbatim in her article entitled Lawyers Behavior and Judicial Decision-Making11published in the Philippine Law Journal, without quotation marks or attribution to Judge Posner. Thus, she wrote: xxx [S]ettlement negotiations will fail and litigation will ensue if the minimum price that plaintiff is willing to accept in compromise of his claim is greater than the maximum price that the defendant is willing to pay in satisfaction of that claim. (At page 483) In other sections of the same article that Justice Sereno wrote, she either copied verbatim from Judge Posner or mimicked his ideas without attributing these to him. Thus: Judge Posner wrote -A somewhat more plausible case can be made that judges might slant their decisions in favour of powerful interest groups in order to increase the prospects of promotion to higher office, judicial or otherwise. xxx (At p. 416) Justice Sereno mimicked -The third is that the judge maximizes the prospects of his promotion to a higher office by slanting his decisions in favor of powerful interest groups. (page 489)

Judge Posner wrote -Presumably judges, like the rest of us, seek to maximize a utility function that includes both monetary and non-monetary elements xxx. (At p. 415) Justice Sereno mimicked -In understanding judicial behaviour we have to assume that judges like all economic actors maximize a utility function. This function in all probability includes material as well as non-material factors. xxx (At page 489) Judge Posner wrote -[T]he rules of the judicial process have been carefully designed both to prevent the judge from receiving a monetary payoff from deciding a particular case one way or the other and to minimize the influence of politically effective interest groups in his decisions. [At p. 415] Justice Sereno mimicked -The first is that the American judicial system have rules designed to minimize the possibilities of a judge maximizing his financial interest by receiving a bribe from a litigant or from acceding to a politically powerful interest group by making the rules work in such a manner as to create disincentives for the judge ruling in such a manner (page 489) Judge Posner wrote -It is often argued, for example, that the judge who owns land will decide in favor of landowners, the judge who walks to work will be in favour of pedestrians. Posner, 415] Justice Sereno mimicked -The second proceeding from the first is that the judge maximizes the interest of the group to which he belongs. If he belongs to the landowning class he will generally favor landowners and if he walks to work, he will generally favor pedestrians. (page 489) Judge Posner wrote -[J]udges seek to impose their preferences, tastes, values, etc. on society. [Posner, 416] Justice Sereno mimicked-The last is that judges maximize their influence on society by imposing their values, tastes and preferences thereon. (page 489) Using the severe standards she sets for Justice Del Castillo in Vinuya, i.e., "objective existence of plagiarism," I am afraid that any explanation of good faith or lack of malicious intent on Justice Serenos part in copying without proper attribution from the work of Judge Posner would not be acceptable.

Still I can concede that Justice Sereno may not have intended to plagiarize the work of others even if she copied verbatim from them without proper attribution or quotation marks. Her above articles were, taken as whole, essentially hers. I regret, however, that since she wrote them as an academician bound by the high standards that she and the University of the Philippines where she taught espouse, she may have failed, borrowing her own phrase, to set the correct "educative and moral directional value" for the young. Justice Del Castillo, who did not write as an academician but as a judge, is at least entitled to the liberties granted judges in writing decisions. I vote to DENY the motion for reconsideration filed in this case. ROBERTO A. ABAD Associate Justice

Footnotes
1

Section 2, Article XI, 1987 Constitution of the Philippines. Section 3 (7), id. Section 6, Article VIII, 1987 Constitution of the Philippines.

Sereno, Toward the Formulation of a Philippine Position in Resolving Trade and Investment Disputes in APEC, Philippine APEC Study Center Network (PASCN) Discussion Paper No. 2001-15 (2001). [available online athttp://pascn.pids.gov.ph/DiscList/d01/s01-15.pdf]
5

Harvey writes that "[w]ords you use verbatim from a source must be put in quotation marks, even if you use only two or three words; its not enough simply to cite." Harvey, Writing with Sources: A Guide for Harvard Students 10 (2008).
6

Ma Lourdes A. Sereno, Emmanuel S. De Dios, and Joseph J. Capuno, Justice and the Cost of Doing Business: The Philippines (2007) published by the Philippine Institute for Development Studies. online at http://www.econ.upd.ude.ph/respub/dp/pdf/DP2007-11.pdf or http://publications.pids.gov.ph/details.phtml?pid=4180
7

At p. 103. The Harvard Plagiarism Policy states: It is the expectation of every course that all work submitted to it will have been done solely for that course. If the same or similar work is to be submitted to any other course, the prior written permission of the instructor must be obtained. If the same or similar work is to be submitted to more than one course during the same term, the

prior written permission of all instructors involved must be obtained. A student submits the same or similar work to more than one course without such prior permission is subject to disciplinary action, and ordinarily will be required to withdraw from the College. (available online at http://isites.harvard.edu/icb/icb.do?keyword=k70847&pageid=icb.page355322)
9

G.R. Nos. 183591, 183752, 183893, 183951, September 18, 2008.

10

Sereno, Uncertainties Beyond The Horizon: The Metamorphosis Of The WTO Investment Framework In The Philippine Setting, 52 UST LAW REVIEW 259 (2007-2008). Available online at http:// ustlawreview.com/pdf/vol.LII/Uncertainties_ Beyond_the_Horizon.pdf Sereno, Lawyers Behavior and Judicial Decision-Making, 70 Phil. L. J. 472-492 (vol 4, June 1996) [available online at http://law.upd.edu.ph/plj/ images/files/PLJ%20volume% 2070/PLJ%20 volume%2070%20number %204%20-02-%20Ma.%20Lourdes%20A. %20Sereno%20-%20Lawyers%20 Behavior.pdf]
11

THIRD DIVISION

[G.R. Nos. 147706-07. February 16, 2005]

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE SANDIGANBAYAN (Fifth Division) and EFREN L. ALAS, respondents. DECISION
CORONA, J.:

Does the Sandiganbayan have jurisdiction over presidents, directors or trustees, or managers of government-owned or controlled corporations organized and incorporated under the Corporation Code for purposes of the provisions of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act? The petitioner, represented by the Office of the Special Prosecutor (OSP), takes the affirmative position in this petition for certiorari under Rule 65 of the Rules of Court. Respondent Efren L. Alas contends otherwise, together with the respondent court. Pursuant to a resolution dated September 30, 1999 of the Office of the Ombudsman, two separate informations[1] for violation of Section 3(e) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, were filed with the Sandiganbayan on November 17, 1999 against Efren L. Alas. The charges emanated from the alleged anomalous advertising contracts entered into by Alas, in his capacity as President and Chief Operating Officer of the Philippine Postal Savings Bank (PPSB), with Bagong Buhay Publishing Company which purportedly caused damage and prejudice to the government. On October 30, 2002, Alas filed a motion to quash the informations for lack of jurisdiction, which motion was vehemently opposed by the prosecution. After considering the arguments of both parties, the respondent court ruled that PPSB was a private corporation and that its officers, particularly herein respondent Alas, did not fall under Sandiganbayan jurisdiction. According to the Sandiganbayan:

After a careful consideration of the arguments of the accused-movant as well as of that of the prosecution, we are of the considered opinion that the instant motion of the accused is well taken. Indeed, it is the basic thrust of Republic Act as well as (sic) Presidential Decree No. 1606 as amended by President Decree No. 1486 and Republic Act No. 7975 and Republic Act No. 8249 that the Sandiganbayan has jurisdiction only over public officers unless private persons are charged with them in the commission of the offenses.

The records disclosed that while Philippine Postal Savings Bank is a subsidiary of the Philippine Postal Corporation which is a government owned corporation, the same is not created by a special law. It was organized and incorporated under the Corporation Code which is Batas Pambansa Blg. 68. It was registered with the Securities and Exchange Commission under SEC No. AS094-005593 on June 22, 1994 with a lifetime of fifty (50) years. Under its Articles of Incorporation the purpose for which said entity is formed was primarily for business, xxx Likewise, a scrutiny of the seven (7) secondary purposes of the corporation points to the conclusion that it exists for business. Obviously, it is not involved in the performance of a particular function in the exercise of government power. Thus, its officers and employees are not covered by the GSIS and are under the SSS law, and actions for reinstatement and backwages are not within the jurisdiction of the Civil Service Commission but by the National Labor Relations Commission (NLRC). The Supreme Court, in the case of Trade Unions of the Philippines and Allied Services vs. National Housing Corp., 173 SCRA 33, held that the Civil Service now covers only government owned or controlled corporations with original or legislative charters, those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general legislation. The Highest Court categorically ruled that the Civil Service does not include government-owned or controlled corporation which are organized as subsidiaries of government-owned or controlled corporation under the general corporation law. In Philippine National Oil Company Energy Development Corporation vs. Leogardo, 175 SCRA 26, the Supreme Court emphasized that: The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporation created by special charter are subject to its provision while those incorporated under the general corporation law are not within its coverage. Likewise in Davao City Water District vs. Civil Service Commission, 201 SCRA 601 it was held that by government-owned or controlled corporation with original charter we mean government-owned or controlled corporation created by a special law and not under the Corporation Code of the Philippines while in Llenes vs. Dicdican, et al., 260 SCRA 207, a public officer has been ruled, as a person whose duties involve the exercise of discretion in the performance of the function of government. Clearly, on the basis of the foregoing pronouncements of the Supreme Court, the accused herein cannot be considered a public officer. Thus, this Court may not exercise jurisdiction over his act.
[2]

Dissatisfied, the People, through the Office of the Special Prosecutor (OSP), filed this petition[3] arguing, in essence, that the PPSB was a government-owned or controlled corporation as the term was defined under Section 2(13) of the Administrative Code of 1987.[4] Likewise, in further defining the jurisdiction of the Sandiganbayan, RA 8249 did not make a distinction as to the manner of creation of the government-owned or controlled corporations for their officers to fall under its jurisdiction. Hence, being President and Chief Operating Officer of the PPSB at the time of commission of the crimes charged, respondent Alas came under the jurisdiction of the Sandiganbayan. Quoting at length from the assailed resolution dated February 15, 2001, respondent Alas, on the other hand, practically reiterated the pronouncements made by the respondent court in support of his conclusion that the PPSB was not created by special law, hence, its officers did not fall within the jurisdiction of the Sandiganbayan.[5] We find merit in the petition. Section 2(13) of EO 292[6] defines government-owned or controlled corporations as follows:

Sec. 2. General Terms Defined Unless the specific words of the text or the context as a whole or a particular statute, shall require a different meaning: xxx xxx xxx

(13) government owned or controlled corporations refer to any agency organized as a stock or non-stock corporation vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or indirectly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations to the extent of at least 51% of its capital stock: provided, that government owned or controlled corporations maybe further categorized by the department of the budget, the civil service commission and the commission on audit for the purpose of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.
From the foregoing, PPSB fits the bill as a government-owned or controlled corporation, and organized and incorporated under the Corporation Code as a subsidiary of the Philippine Postal Corporation (PHILPOST). More than 99% of the authorized capital stock of PPSB belongs to the government while the rest is nominally held by its incorporators who are/were themselves officers of PHILPOST. The creation of PPSB was expressly sanctioned by Section 32 of RA 7354, otherwise known as the Postal Service Act of 1992, for purposes of, among othe rs, to encourage and promote the virtue of thrift and the habit of savings among the general public, especially the youth and the marginalized sector in the countryside xxx and to facilitate postal service by receiving collections and making payments, including postal money orders.[7] It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of government-owned or controlled corporations with original

charters whenever charges of graft and corruption are involved. However, a question arises whether the Sandiganbayan has jurisdiction over the same officers in government-owned or controlled corporations organized and incorporated under the Corporation Code in view of the delimitation provided for in Article IX-B Section 2(1) of the 1987 Constitution which states that:

SEC. 2. (1) The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters.
It should be pointed out however, that the jurisdiction of the Sandiganbayan is separate and distinct from the Civil Service Commission. The same is governed by Article XI, Section 4 of the 1987 Constitution which provides that the present anti -graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. This provision, in effect, retained the jurisdiction of the anti-graft court as defined under Article XIII, Section 5 of the 1973 Constitution which mandated its creation, thus:

Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offense 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. (Italics ours)
On March 30, 1995, Congress, pursuant to its authority vested under the 1987 Constitution, enacted RA 7975[8] maintaining the jurisdiction of the Sandiganbayan over presidents, directors or trustees, or managers of government-owned or controlled corporations without any distinction whatsoever. Thereafter, on February 5, 1997, Congress enacted RA 8249[9] which preserved the subject provision:

Section 4, Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense, (1) Officials of the executive branch occupying the positions of regional director, and higher, otherwise classified as grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758) specifically including:

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(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics ours)
The legislature, in mandating the inclusion of presidents, directors or trustees, or managers of government-owned or controlled corporations within the jurisdiction of the Sandiganbayan, has consistently refrained from making any distinction with respect to the manner of their creation. The deliberate omission, in our view, clearly reveals the intention of the legislature to include the presidents, directors or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption. Had it been otherwise, it could have simply made the necessary distinction. But it did not. It is a basic principle of statutory construction that when the law does not distinguish, we should not distinguish. Ubi lex non distinguit nec nos distinguere debemos. Corollarily, Article XI Section 12 of the 1987 Constitution, on the jurisdiction of the Ombudsman (the governments prosecutory arm against persons charged with graft and corruption), includes officers and employees of government-owned or controlled corporations, likewise without any distinction. In Quimpo v. Tanodbayan,[10] this Court, already mindful of the pertinent provisions of the 1987 Constitution, ruled that the concerned officers of government-owned or controlled corporations, whether created by special law or formed under the Corporation Code, come under the jurisdiction of the Sandiganbayan for purposes of the provisions of the Anti-Graft and Corrupt Practices Act. Otherwise, as we emphasized therein, 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 embodies this policy of the government, that is, to repress certain acts not only of public officers but also of private persons constituting graft or corrupt practices or which may lead thereto. The foregoing pronouncement has not outlived its usefulness. On the contrary, it has become even more relevant today due to the rampant cases of graft and corruption that erode the peoples faith in government. For indeed, a government -owned or controlled corporation can conceivably create as many subsidiary corporations under the Corporation Code as it might wish, use public funds, disclaim public accountability and escape the liabilities and responsibilities provided by law. By including the concerned officers of government-owned or controlled corporations organized and incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan, the legislature evidently seeks to avoid just that.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the assailed resolution dated February 15, 2001 of the respondent court is hereby REVERSED and SET ASIDE. SO ORDERED. Panganiban, JJ., concur. (Chairman), Sandoval-Gutierrez, Carpio-Morales, and Garcia,

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Docketed as Criminal Cases Nos. 25750-25751. Resolution dated February 15, 2001, Annex A, Rollo, pp. 18-22. Rollo, pp. 2-17. EO No. 292. Comment, Rollo, pp. 38-49. Administrative Code of 1987. Articles of Incorporation of PPSB, Annex C, Rollo, pp. 27-35. Entitled: ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR THAT PURPOSE PD 1606, AS AMENDED. Entitled: AN ACT FURTHER DEFINING THE JURISDICTION OF THE SANDIGANBAYAN. AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES. 230 Phil. 232 (1986).

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lawphil

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 159940 February 16, 2005

OFFICE OF THE OMBUDSMAN, petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION CARPIO-MORALES, J.: Before this Court is a petition for certiorari under Rule 65 of the 1997 Revised Rules of Court seeking to set aside and nullify Resolution No. 030919 of the Civil Service Commission (CSC) dated August 28, 2003. The antecedents of the case are as follows: By letter1 dated March 7, 1994 addressed to then Ombudsman Conrado M. Vasquez, the CSC approved the Qualification Standards for several positions in the Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III. The Qualification Standards for said position are: EDUCATION: Bachelor of Laws

EXPERIENCE: 5 years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/ criminal cases, legal research or other related work. TRAINING: 24 hours of relevant training ELIGIBILITY: RA 1080 (Bar) The Career Executive Service Board (CESB) subsequently advised the Ombudsman, by letter of May 29, 1996,2that pursuant to CSC Memorandum Circular No. 21, s.1994, the position of Graft Investigation Officer III, among other positions in petitioner therein mentioned, was classified as a Career Executive Service (CES) position, hence, governed by the rules of the CES pertaining to eligibility, appointment to CES ranks, and performance evaluation, among other things.
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On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group (CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted Joint Resolution No. 623 reading: JOINT RESOLUTION NO. 62 WHEREAS, the independence of the members of the Constitutional Fiscal Autonomy Group (CFAG) is guaranteed by the Constitution; WHEREAS, the Constitution has several provisions that guarantee and protect such independence, among which are Sections 4 and 5 of Article IX, A thereof, which respectively grant them Fiscal Autonomy and authorize them to appoint their own officials and employees in accordance with law; WHEREAS, Section 7(3), Title I, Book V of the Administrative Code of 1987 enumerates exclusively and restrictively the specific positions under the Career Executive Service, all the holders of which are appointed by the President and are required to have CES eligibility; WHEREAS, in case of Home Insurance Guaranty Corporation vs. Civil Service Commission and Daniel Cruz, G.R. No. 95450, dated 19 March 1993, the Supreme Court nullified the classification by the CSC of the position of Corporate Vice President as belonging to the third level of the Career Executive Services; WHEREAS, the Court declared in the above cited case that said position is not among those enumerated by law as falling under the third level, nor one of those identified by the CES Board as equivalent rank to those listed by law, nor was the incumbent appointed by the President; WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T. Yorac, G.R. No. 93867, dated 18 December 1990, the Supreme Court ruled that "Article IX-A, Sec. 1 of the Constitution expressly describes all Constitutional Commissions as Independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions." WHEREAS, only the Chairmen and Commissioners of the Constitutional Commissions, the Commission on Human Rights, Justices and Judges, as well as the Ombudsman and his Deputies, are appointed by the President; WHEREAS, the Constitutional Commissions, the Supreme Court, the Commission on Human Rights, and the Office of the Ombudsman are empowered to appoint officials and employees to positions belonging to first level up to third level of their respective agencies, and that they are not presidential appointees; WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book V, of the Administrative Code of 1987, provides in part that "[t]he degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the

qualification standard for the particular positions[,]" and par. 2 thereof provides that [t]he establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission;" NOW, THEREFORE, the CFAG jointly resolves: 1. That all third level positions under each member agency are career positions; 2. That, where appropriate and proper, taking into consideration the organizational set-up of the agency concerned, the overall screening and selection process for these positions shall be a collegial undertaking, provided that the appointment paper shall be signed only by the Head of the member agency; 3. That all career third level positions identified and classified by each of the member agency arenot embraced within the Career Executive Service (CES) and as such shall not require Career Service Executive Eligibility (CSEE) or Career Executive Service (CES) Eligibility for purposes of permanent appointment; 4. That should CFAG member agencies develop their respective eligibility requirements for the third level positions, the test of fitness shall be jointly undertaken by the CFAG member agencies in coordination with the CSC; 5. That in case the test of fitness shall be in written form, the CSC shall prepare the questionnaires and conduct the examinations designed to ascertain the general aptitude of the examinees while the member agency shall likewise prepare the questionnaires and conduct in conjunction with the CSC, the examinations to determine the technical capabilities and expertise of the examinees suited to its functions; 6. That the resulting eligibility acquired after passing the aforementioned examination shall appropriate for permanent appointment only to third level positions in the CFAG member agencies; 7. That the member agencies shall regularly coordinate with the CSC for the conferment of the desired eligibility in accordance with this Resolution; However this is without prejudice to those incumbents who wish to take the Career Service Executive Examination given by the Civil Service Commission or the Management Aptitude Test Battery given by the Career Executive Service Board. (Underscoring in the original omitted; emphasis, italics and underscoring supplied)
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On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by the Ombudsman. The CSC approved the appointments on the condition that for the appointees to acquire security of tenure, they must obtain CES or Civil Service Executive (CSE) eligibility which is governed by the CESB. By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of status, from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), "as affirmed by the Supreme Court," the Ombudsman wrote: xxx In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the

Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision thereby effectively granted the petition of Mr. Inok for security of tenure as Director II of the Commission on Audit despite the absence of a CES eligibility.4 (Emphasis and italics supplied) The relevant portions of the cited CA decision read: Presidential Decree No. 807, otherwise known as the Civil Service Decree of the Philippines, provides the following levels of position in the career service, viz: SEC. 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: (1) The first level shall include clerical, trades, crafts, and custodial service positions which involve nonprofessional 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 a 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. The last sentence of Section 7(b) of P.D. No. 807 is similar to the provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit: (a) Membership. A person who meets such managerial experience and other requirements and passes such examinations as may be prescribed by the Board shall be included in the register of career service eligibles and, upon appointment to an appropriate class in the Career Executive Service, become an active member in the Service. In exceptional cases, the Board may give unassembled examinations for eligibility. The area of recruitment shall be government-wide, with provisions to allow qualified or outstanding men from outside the government to enter the service. Thus, it could be gleaned from P.D. No. 1 of the Career Executive Service (CES), which has been [d]rafted into Executive Order No. 292, that the letter and intent of the law is to circumscribe the Career Executive Service to CES positions in the Executive Branch of government. Verily, consistent with the principle of the ejusdem generisin legal hermeneutics, the phrase "other officers of equivalent rank" could encompass only such persons occupying positions in the Executive Department. In the contemporaneous case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs. Atty. Josefina G. Bacal, the Supreme Court lent credence to this postulate, viz: Security of tenure in the career executive service is acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to frst and second level employees in the civil service but to the rank to which they are appointed by the

President. x x x Prescinding from the foregoing disquisition, We are loathe to stamp our imprimatur to the Commissions stance that the "positions of Director III, including that of the COA, belong to the third level. Hence, appointees thereto should possess the x x x Career Executive Service (CES) Eligibility in accordance with the Qualification Standard of the said position." Ineluctably, the judiciary, the Constitutional Commissions, the Office of the Ombudsman, and the Commission on Human Rights are not covered by the CES governed by the CESB. The power of these constitutional offices to appoint their own officers and employees is mainly intended to safeguard their independence, which is the same power of appointment of all officials and employees of the judiciary granted to the Supreme Court. As commented by a noted constitutionalist:
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The authority of the Supreme Court to appoint its own officials and employees is another measure intended to safeguard the independence of the judiciary. However, the Courts appointing authority must be exercised in accordance with the Civil Servi ce Law. Irrefragrably, inherent in the power to appoint is the power to administratively supervise the officials and employees in the constitutional offices in the same manner that the express power to appoint carries with it the implied power to remove the personnel appointed in said offices. x x x xxx Parenthetically, the power to administratively supervise is designed to strengthen the independence of the constitutional offices. A respected authority on political law underscored the multifarious factors that are integral to the independence of the constitutional offices, scilicet: There are several factors that preserve the independence of the three Commissions: xxx (3) Their appointment must be in a permanent capacity. (4) The Commissions enjoy their own fiscal autonomy. The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. to be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the same manner that the Supreme Court administers the judiciarys civil service. x x x5 (Italics and emphasis in the original; underscoring partly in the original and partly supplied; citations omitted) It appears that Carandang and Clemente were in the meantime conferred with CSE Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003.6 Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft Investigation and Prosecution Officer III. The Ombudsman thereupon requested the approval of the proposed Qualification Standards for the reclassified positions. With respect to the reclassified Graft Investigation and Prosecution Officer III position, the Qualification Standards were the same as those for Graft Investigation

Officer III. Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed the status of Carandangs and Clementes appointments to permanent effective June 6, 2003, but not with respect to De Jesus on the ground that he "has not met the eligibility requirements." The pertinent portion of the questioned Resolution reads: Relevant to the matter are Sections 4 and 6, Rule III and Rule VI, respectively, of the Omnibus Rules on Appointments and Other Personnel Action, which state: SEC. 4. Nature of Appointment. The nature of appointment shall be as follows: xxx i. Change of status: 1. temporary to permanent the appointment issued to a temporary employee when he acquires the appropriate eligibility or becomes fully qualified for the position to which he is appointed. xxx SEC. 6. In cases where the appointee fully qualifies for the position to which he is temporarily appointed, the appointing authority shall no longer issue an appointment for change of status from temporary to permanent. Upon the appointees presentation of the required document/s, such change may be effected as a footnote on the temporary appointment issued, copy furnished the Commission. It is explicitly provided therein that the change of status from temporary to permanent can be effected only once the appointee becomes fully qualified to the position to which he is appointed. xxx The pronouncement of the Court of Appeals in the Inok case cannot be made the basis for changing the employment status of De Jesus. Let it be stressed that nowhere in the aforesaid decision states that the Office of the Ombudsman or the other constitutional agencies mentioned therein are exempt or are not covered by the Civil Service Law and Rules. On the contrary, the same decision declares that these bodies are covered by the civil service system. Basic is the rule that all appointments in the government service, particularly the career service, must be in accordance with the qualification requirements as laid down under existing civil service rules and regulations. Such policy is in line with the Commissions mandate to professionalize the civil service. The requirements spelled out in the Qualification Standards (QS) Manual are designed to determine the fitness of the appointee in a certain position. These requirements are indispensable in order to satisfy the Constitutional mandate that appointment in the civil service shall be made according to merit and fitness. While it is true that constitutional agencies such as the Office of the Ombudsman has the authority to appoint its officials in accordance with law, such law does not necessarily imply that their appointment will not be subject to Civil Service Law and Rules; otherwise, these independent bodies will arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to Constitutional Commissions in the matter of appointments, it would have been so provided. But that is not the case. the Philippine Constitution provides: "The Constitutional Commissions shall appoint their officials and employees in accordance with law" (Article IX-A, Section 4). Specifically, Section 6, Article XI of the Constitution states that "The officials, shall be appointed by the Ombudsman according to the Civil Service Law." And since all matters pertaining to appointments are within the realm of expertise to the CSC, all laws, rules and regulations it issues on appointments must be complied with. The Constitution speaks of only one civil service, to encompass the first, second, and third levels. It is subject to the same set of

laws, rules and regulations in the manner of observing and ensuring that the merit and fitness principle, unless otherwise exempted therefrom by the Constitution or law, is the guiding factor in issuing appointments. Hence, until and unless there is a law or rule exempting one category of public officials from the test in determining merit and fitness, all levels in the government are deemed subject to it. Simply put, the third level eligibility requirement for third level officials in all agencies is mandatory. Further, let it be clarified that the ruling enunciated in Inok case was with regard to the authority of the Career Executive Service Board to prescribe and to administer the Career Executive Service Eligibility and it did not specifically nor particularly take away the functions of the Civil Service Commission. This is evident from the aforequoted decision in the Inok case, to wit: The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. To be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the manner that the Supreme Court administers the judiciarys civil service. Pursuant to the QS Manual, a Graft Investigation Officer III position is a career service position requiring a Career Service Eligibility or Career Service Executive Eligibility. Considering that De Jesus has not met the eligibility requirement, the change of status of his appointment from temporary to permanent cannot be effected. As held in Achacoso vs. Macaraig, 195 SCRA 235: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. x x x (Underscoring partly in the original and partly supplied; emphasis supplied) Hence, the present petition anchored on the following ground: THE GENERAL POWER OF RESPONDENT CIVIL SERVICE COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL THE SPECIFIC DISCRETIONARY POWER OF APPOINTMENT, INCLUDING THE GRANT OF SECURITY OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT CONSTITUTIONAL BODY IN FAVOR OF THE LATTERS OWN OFFICIALS, AND ANY SUCH CURTAILMENT BY THE RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION NO. 030919 DATED 26 AUGUST 2003, IS CONSTITUTIONALLY AND LEGALLY INFIRM. Petitioner contends that the CSC misreads the ratio of the appellate court decision in Inok. It contends that the Ombudsman, as an appointing authority, "is specifically tasked by the Constitution to choose his own qualified personnel, which includes the lesser power of granting security of tenure to his appointees once the basic qualification requirements are satisfied."7 Petitioner likewise contends that its constitutional discretion as an independent appointing authority cannot be curtailed by the CSC which "has no authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications."8 Petitioner further contends that the CES Eligibility, as administered by the respondent CESB, cannot be validly made a requisite for the attainment of security of tenure on qualified career officials of petitioner who are not legally part of the CES. Finally, petitioner argues that its officials which are appointed by the Ombudsman are technically classified as belonging to the Closed Career Service, the positions being unique and highly technical as they involve investigatorial, quasi-judicial and prosecutorial functions, in much the same way as judges are involved in judicial functions. Hence, petitioner concludes, appointment to such positions is likewise characterized by security of tenure. During the pendency of the case before this Court, the CSC, by Resolution9 No. 040738 dated July 6, 2004, approved the proposed Qualification Standards for Graft Investigation and Prosecution Officer I, II and III. As proposed, the following

Qualification Standards for Graft Investigation and Prosecution Officer III were approved: Education : Bachelor of Laws Experience : Five (5) years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/criminal cases, legal research or other related works Training : 24 hours of relevant training Eligibility : RA 1080 (BAR) The petition is impressed with merit. That the positions subject of the present case are unique and highly technical in nature, as are those of the Judiciary, is recognized by the constitutional offices under the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member.10 Inok cannot be invoked as precedent in arriving at the question raised in this petition. This Court dismissed the petition of the CSC in the Inok case on a technicality therein petitioner CSCs failure to file a reply within the required period and not on the merits.
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Book V, Title I, Subtitle A of the Administrative Code of 1987 provides: 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; x x x (Emphasis and underscoring supplied) From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution, to wit: SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW. To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES

or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited "only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else."11 It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority.12 It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too. In a Supplemental Memorandum13 received by this Court on January 5, 2005, the CSC alleged that, inter alia: . . . the reclassified G[raft] I[nvestigation and] P[rosecution] O[fficer] III position is the same position which is the subject of the herein case. Suffice it to state that the eligibility requirement under the new QS is no longer third level eligibility but RA 1080 (BAR) instead. However, notwithstanding the said approval of the new QS for GIPO III, CSC prays that the issues raised by the Office of Ombudsman relative to the authority of the CSC to administer the Civil Service Executive Examination for third level positions and to prescribe third level eligibility to third level positions in the Office of the Ombudsman be resolved. As the Court takes note of the information of the CSC in its Supplemental Memorandum, it holds that third level eligibility is not required for third level officials of petitioner appointed by the Ombudsman in light of the provisions of the Constitution vis a vis the Administrative Code of 1987 as discussed above. WHEREFORE, the petition is hereby GRANTED. Resolution No. 030919 of the Civil Service Commission dated August 28, 2003 is hereby SET ASIDE. The appointment of Jose Tereso U. de Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul Elmer M. Clemente, is hereby ordered made permanent effective December 18, 2002. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and Garcia, JJ., concur.

Footnotes
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Rollo at 115-118. Id. at 123. Id. at 52-53. Id. at 31. Id. at 42-44.

CSC Resolution No. 030919; Rollo at 31, 35. Rollo at 14. Id. at 16. Id. at 201-203. Id. at 22. Lopez v. Civil Service Commission, 194 SCRA 269, 275 (1991). Province of Camarines Sur v. Court of Appeals, 246 SCRA 281, 288 (1985). CSC Supplemental Memorandum at 2.

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The Lawphil Project - Arellano Law Foundation

EN BANC

[G.R. Nos. 105965-70. March 20, 2001]

GEORGE UY, petitioner, vs. THE HON. SANDIGANBAYAN, THE HON. OMBUDSMAN AND THE HON. ROGER C. BERBANO, SR., SPECIAL PROSECUTION OFFICER III, OFFICE OF THE SPECIAL PROSECUTOR, respondents. RESOLUTION
PUNO, J.:

Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling in its decision dated August 9, 1999 and resolution dated February 22, 2000 that the prosecutory power of the Ombudsman extends only to cases cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the jurisdiction of regular courts. The Court stated in its decision dated August 9, 1999:

In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan.
It explained in the resolution of February 22, 2000 that:

(t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction clearly

serve to limit the Ombudsman's and Special Prosecutor's authority to cases cognizable by the Sandiganbayan.
Seeking clarification of the foregoing ruling, respondent Ombudsman raises the following points:
(1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader jurisdiction of the Office of the Ombudsman; (2) The phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan" is not a delimitation of its jurisdiction solely to Sandiganbayan cases; and (3) The authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan cannot be confused with the broader investigatory and prosecutorial powers of the Office of the Ombudsman.

Thus, the matter that needs to be discussed herein is the scope of the power of the Ombudsman to conduct preliminary investigation and the subsequent prosecution of criminal offenses in the light of the provisions of the Ombudsman Act of 1989 (Republic Act [RA] 6770). We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient, thus:

Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
x x x Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman under the latters supervision and control, the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. It states:

Sec. 11. Structural Organization. x x x

xxx

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman. (4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman, have the following powers: (a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; (b) (c) To enter into plea bargaining agreements; and To perform such other duties assigned to it by the Ombudsman.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee.[1] The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.[2] Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman.[3] Its power to conduct

preliminary investigation and to prosecute is limited tocriminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. [4] To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control.[5] The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office.[6] A review of the development of our Ombudsman laws reveals this intent. The concept of Ombudsman originated in Sweden in the early 19th century, referring to an officer appointed by the legislature to handle the peoples grievances against administrative and judicial actions. He was primarily tasked with receiving complaints from persons aggrieved by administrative action or inaction, conducting investigation thereon, and making recommendations to the appropriate administrative agency based on his findings. He relied mainly on the power of persuasion and the high prestige of the office to effect his recommendations.[7] In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the peoples medium for airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the view of raising the standard in public service and ensuring integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation. These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations and the Office of the Citizens Counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the political independence necessary for the effective performance of their function as government critic. Furthermore, their powers extended to no more than fact-finding and recommending.[8] Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the office of an Ombudsman, to give it political independence and adequate powers to enforce its recommendations.[9] The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but shall also include the

filing and prosecution of criminal, civil or administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read:

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.
Implementing this constitutional provision, President Marcos, on June 11, 1978, exercising his power under Proclamation 1081, enacted Presidential Decree (PD) 1487 creating the Office of the Ombudsman to be known as Tanodbayan. Its principal task was to investigate, on complaint, any administrative act[10] of any administrative agency[11] including any governmentowned or controlled corporation.[12] The Tanodbayan also had the duty to file and prosecute the corresponding criminal, civil, or administrative case before the Sandiganbayan or the proper court or body if he has reason to believe that any public official, employee, or other person has acted in a manner resulting in a failure of justice.[13] It should be noted, however, that the prosecution of cases falling within the jurisdiction of the Sandiganbayan was to be done by the Tanodbayan through the Special Prosecutor who, according to PD 1486,[14] had the exclusive authority to conduct preliminary investigation, file information for and prosecute cases within the jurisdiction of said court. The Special Prosecutor was then under the control and supervision of the Secretary of Justice.[15] Shortly after its enactment, PD 1487 was amended by PD 1607 which took effect on December 10, 1978. The amendatory law broadened the authority of the Tanodbayan to investigate administrative acts of administrative agencies by authorizing it to conduct an investigation on its own motion or initiative, even without a complaint from any person. [16] The new law also expanded the prosecutory function of the Tanodbayan by creating the Office of the Chief Special Prosecutor in the Office of the Tanodbayan and placing under his direction and control the Special Prosecutor who had the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file informations therefor and to direct and control the prosecution of said cases therein.[17] Thus, the law provided that if the Tanodbayan has reason to believe that any public official, employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency.[18] On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD 1607. PD 1630 reorganized the Office of the Tanodbayan and transferred the powers previously vested in the Special Prosecutor to the Tanodbayan himself. Thus, the Tanodbayan was empowered to directly conduct preliminary investigation, file information and prosecute cases within the jurisdiction of the Sandiganbayan and other courts. The amendment gave the Tanodbayan the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file information therefor and to direct and control the prosecution of said cases.[19] Section 10 of PD 1630 provided:

Sec. 10. Powers.--The Tanodbayan 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
(e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or complaint with the Sandiganbayan or any proper court or administrative agency and prosecute the same.

Section 18 further stated:

Sec. 18. Prosecution of Public Personnel or Other Person.--If the Tanodbayan has reason to believe that any public official, employee or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall conduct the necessary investigation and shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency.
With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and to notify the complainants of the action taken and the result thereof.[20] He possesses the following powers, functions and duties:
1. 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; 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. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.[21]

As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor which continued to function and exercise its powers as provided by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution.[22] The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987. In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive and relay the people's grievances, but also the duty to investigate and prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law. Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people's complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions. Recognizing the importance of this power, the Court cannot derogate the same by limiting it only to cases cognizable by the Sandiganbayan. It is apparent from the history and the language of the present law that the legislature intended such power to apply not only to cases within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular courts. The Court observed in the case of Republic vs. Sandiganbayan:[23]

A perusal of the law originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and the amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was already vested with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and even the regular courts.
xxx

Presidential Decree No. 1630 was the existing law governing the then Tanodbayan when Republic Act No. 6770 was enacted providing for the functional and structural organization of the present Office of the Ombudsman. This later law retained in the Ombudsman the power of the former Tanodbayan to investigate and prosecute on its

own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. x x x.
Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving public officers and employees before the regular courts does not conflict with the power of the regular prosecutors under the Department of Justice to control and direct the prosecution of all criminal actions under Rule 110 of the Revised Rules of Criminal Procedure. The Rules of Court must be read in conjunction with RA 6770 which charged the Ombudsman with the duty to investigate and prosecute all illegal acts and omissions of public officers and employees. The Court held in the case of Sanchez vs. Demetriou[24] that the power of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides:

The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein).[25] The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts.
IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February 20, 2000 that the Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan is SET ASIDE. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Panganiban, Buena, Gonzaga-Reyes, Ynares-Santiago, and Sandoval-Gutierrez, JJ., concur. Kapunan, J., I concur in the result. Quisumbing, J., on leave. Pardo, J., I dissent. See attached. De Leon, Jr., J., I join the dissenting opinion of Justice B. P. Pardo.

[1] [2] [3] [4] [5] [6]

Deloso vs. Domingo, 191 SCRA 545 (1990). Section 16, RA 6770. Zaldivar vs. Sandiganbayan, 160 SCRA 843 (1988); Acop vs. Office of the Ombudsman, 248 SCRA 566 (1995). Section 13, RA 6770. Section 31, RA 6770; Lastimosa vs. Vasquez, 243 SCRA 497 (1995). Sponsorship Speech of Senator Edgardo Angara, Senate Bill 543, June 8, 1988.

[7] [8]

Rowat, The Ombudsman Plan. Essays on the Worldwide Spread of an Idea (1973).

Cortes, Redress of Grievances and the Philippine Ombudsman (Tanodbayan), Philippine Law Journal, vol. 57, March 1982, pp. 1-24.
[9]

Tuason, A Commitment to Official Integrity (Background, Rationale and Explanation of Article XIII, Sandiganbayan and Tanodbayan), Philippine Law Journal, vol. 48, nos. 4 & 5, September and December 1973, pp. 548-626.
[10]

The law defined "administrative act" as "any action including decisions, omissions, recommendations, practices, or procedures of an administrative agency." (Section 9[b], PD 1487).
[11]

The law defined "administrative agency" as "any department or other governmental unit including any government-owned or controlled corporation, any official, or any employee acting or purporting to act by reason of connection with the government but it does not include (1) any court or judge, or appurtenant judicial staff, (2) the members, committees, or staffs of the National Assembly, or (3) the President or his personal staff, or (4) the members of the Constitutional Commissions and their personal staffs." (Section 9[a], PD 1487).
[12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25]

Section 10 (a), PD 1487. Section 17, id. Creating a Special Court to be known as "Sandiganbayan" and for other Purposes. Section 12, PD 1486. Section 10 (a), PD 1607. Section 17, id. Section 19, id. Section 17, PD 1630. Section 12, Article XI, 1987 Constitution. Section 13, id. Section 7, id. 200 SCRA 667 (1991). 227 SCRA 627 (1993).

A complaint filed or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government owned or controlled corporations with an act or omission alleged to be illegal, unjust, improper, or inefficient is an Ombudsman case.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 163586 January 27, 2009

SHARON CASTRO, Petitioner, vs. HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court, Branch 65, Guimaras; the COA-Region VI, represented by its Director; and HON. COURT OF APPEALS, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court filed by Sharon Castro (petitioner) to assail the July 22, 2003 Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No. 69350; and the March 26, 2004 CA Resolution2 which denied the motion for reconsideration. The facts are of record. On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public Funds, under an Information which reads, as follows:

That on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista, Province of Guimaras, Philippines and within the jurisdiction of the this Honorable Court, abovenamed accused, a public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such, was in the custody and possession of public funds in the amount of P556,681.53, Philippine Currency, representing the value of her collections and other accountabilities, for which she is accountable by reason of the duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public position, with deliberate intent, and with intent to gain, did then and there willfully, unlawfully and feloniously appropriate, take, misappropriate, embezzle and convert to her own personal use and benefit said amount of P556,681.53, and despite notice and demands made upon her account for said public funds, she has failed to do so, to the damage and prejudice of the government. CONTRARY TO LAW.3 Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001. On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan,4 petitioner further argued that as she was a public employee with salary grade 27, the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by theSandiganbayan.5 The RTC denied the Motion to Quash in an Order6 dated September 7, 2001. It held that the jurisdiction of the RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter for the offense charged.7 Moreover, it sustained the prosecutorial authority of the Ombudsman in the case, pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory authority of the Ombudsman in cases cognizable by the RTC. The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule 117, for it was filed after petitioner pleaded not guilty under the Information.8 Petitioner filed a Motion for Reconsideration,9 which the RTC denied in its December 18, 2001 Order.10 Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed the petition in the Decision under review. Petitioners motion for reconsideration12 was also denied. Hence, the present petition, confining the issues to the following: 1. Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme Courts ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of the Ombudsman is limited to cases cognizable by the Sandiganbayan. 2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the constitutional provision on ex-post facto laws and denial of the accused to due process.13 Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26, 2000, then the August 9, 1999 Decision in Uy was applicable,

notwithstanding that the said decision was set aside in the March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case. The petition lacks merit. The petition calls to mind Office of the Ombudsman v. Enoc,14 wherein accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court in Uy15 in a motion to dismiss the 11 counts of malversation that were filed against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the Ombudsman, the Court reversed the RTC and held: In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him

with the regular prosecutors. WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the same. (Emphasis supplied) Similarly relevant is the case of Office of Ombudsman v. Hon. Breva,16 in which, citing the August 9, 1999 Decision in Uy, the RTC dismissed a criminal complaint that was filed before it by the Ombudsman. The Court reversed the RTC, for, "given the Courts Uy ruling under its March 20, 2001 Resolution, the trial courts assailed Orders x x x are, in hindsight, without legal support and must, therefore, be set aside." It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. Petitioner would argue, however, that the March 20, 2001 Resolution in Uy cannot have retroactive effect, for otherwise it would amount to "an ex-post facto law, which is constitutionally proscribed."17 Petitioner is grasping at straws. A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its original passage. Such interpretation does not create a new law but construes a pre-existing one; it merely casts light upon the contemporaneous legislative intent of that law.18 Hence, the March 20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7, 1989. Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal interpretation of such law, the Court, recognizing that acts may have been performed under the impression of the constitutionality of the law or the validity of its interpretation, has consistently held that such operative fact cannot be undone by the mere subsequent declaration of the nullity of the law or its interpretation; thus, the declaration can only have a prospective application.19 But where no law is invalidated nor doctrine abandoned, a judicial interpretation of the law should be deemed incorporated at the moment of its legislation.20 In the present case, the March 20, 2001 Resolution in Uy made no declaration of unconstitutionality of any law nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case. Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes conducted by the Ombudsman, such as the filing of the Information against petitioner. With the foregoing disquisition, the second issue is rendered moot and academic. WHEREFORE, the petition is DISMISSED for lack of merit. No costs. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ* Associate Justice Acting Chairperson WE CONCUR:

DANTE O. TINGA* Associate Justice MINITA V. CHICO-NAZARIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO** 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 Courts Division. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Acting Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Acting Chief Justice

Footnotes
*

In lieu of Justice Consuelo Ynares-Santiago, per Special Order No. 556 dated January 15, 2009. In lieu of Justice Diosdado M. Peralta, per Special Order No. 560 dated January 16, 2009.

**

Penned by Associate Justice Eloy Bello, Jr. and concurred in by Associate Justices Cancio Garcia (a retired member of the Supreme Court) and Mariano del Castillo; rollo, p. 42
2

Id. at 56. Rollo, pp. 18-19. G.R. No. 180214, August 9, 1999, 312 SCRA 77. Rollo, pp. 22-23. Rollo, p. 24. Id. at 25.

Id. at 25-26. Id. at 27. Id. at 32. Id. at 33. Id. at 50. Rollo, p. 8. G.R. Nos. 145957-68, January 25, 2002, 374 SCRA 691. Uy v. Sandiganbayan, supra note 4. G.R. No. 145938, February 10, 2006, 482 SCRA 182. Petition, rollo, p. 12.

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16

17

18

Roos Industrial Construction, Inc. v. National Labor Relations Commission, G.R. No. 172409, February 4, 2008, 543 SCRA 666.
19

Ejercito v. Sandiganbayan, G.R. No. 157294-95, November 30, 2006, 509 SCRA 190. Chavez v. Public Estates Authority, G. R. No. 133250, May 6, 2003, 403 SCRA 1.

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 163586 January 27, 2009

SHARON CASTRO, Petitioner, vs. HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court, Branch 65, Guimaras; the COA-Region VI, represented by its Director; and HON. COURT OF APPEALS, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court filed by Sharon Castro (petitioner) to assail the July 22, 2003 Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No. 69350; and the March 26, 2004 CA Resolution2 which denied the motion for reconsideration. The facts are of record. On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public Funds, under an Information which reads, as follows:

That on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista, Province of Guimaras, Philippines and within the jurisdiction of the this Honorable Court, abovenamed accused, a public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such, was in the custody and possession of public funds in the amount of P556,681.53, Philippine Currency, representing the value of her collections and other accountabilities, for which she is accountable by reason of the duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public position, with deliberate intent, and with intent to gain, did then and there willfully, unlawfully and feloniously appropriate, take, misappropriate, embezzle and convert to her own personal use and benefit said amount of P556,681.53, and despite notice and demands made upon her account for said public funds, she has failed to do so, to the damage and prejudice of the government. CONTRARY TO LAW.3 Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001. On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan,4 petitioner further argued that as she was a public employee with salary grade 27, the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by theSandiganbayan.5 The RTC denied the Motion to Quash in an Order6 dated September 7, 2001. It held that the jurisdiction of the RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter for the offense charged.7 Moreover, it sustained the prosecutorial authority of the Ombudsman in the case, pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory authority of the Ombudsman in cases cognizable by the RTC. The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule 117, for it was filed after petitioner pleaded not guilty under the Information.8 Petitioner filed a Motion for Reconsideration,9 which the RTC denied in its December 18, 2001 Order.10 Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed the petition in the Decision under review. Petitioners motion for reconsideration12 was also denied. Hence, the present petition, confining the issues to the following: 1. Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme Courts ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of the Ombudsman is limited to cases cognizable by the Sandiganbayan. 2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the constitutional provision on ex-post facto laws and denial of the accused to due process.13 Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26, 2000, then the August 9, 1999 Decision in Uy was applicable,

notwithstanding that the said decision was set aside in the March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case. The petition lacks merit. The petition calls to mind Office of the Ombudsman v. Enoc,14 wherein accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court in Uy15 in a motion to dismiss the 11 counts of malversation that were filed against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the Ombudsman, the Court reversed the RTC and held: In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him

with the regular prosecutors. WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the same. (Emphasis supplied) Similarly relevant is the case of Office of Ombudsman v. Hon. Breva,16 in which, citing the August 9, 1999 Decision in Uy, the RTC dismissed a criminal complaint that was filed before it by the Ombudsman. The Court reversed the RTC, for, "given the Courts Uy ruling under its March 20, 2001 Resolution, the trial courts assailed Orders x x x are, in hindsight, without legal support and must, therefore, be set aside." It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. Petitioner would argue, however, that the March 20, 2001 Resolution in Uy cannot have retroactive effect, for otherwise it would amount to "an ex-post facto law, which is constitutionally proscribed."17 Petitioner is grasping at straws. A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its original passage. Such interpretation does not create a new law but construes a pre-existing one; it merely casts light upon the contemporaneous legislative intent of that law.18 Hence, the March 20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7, 1989. Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal interpretation of such law, the Court, recognizing that acts may have been performed under the impression of the constitutionality of the law or the validity of its interpretation, has consistently held that such operative fact cannot be undone by the mere subsequent declaration of the nullity of the law or its interpretation; thus, the declaration can only have a prospective application.19 But where no law is invalidated nor doctrine abandoned, a judicial interpretation of the law should be deemed incorporated at the moment of its legislation.20 In the present case, the March 20, 2001 Resolution in Uy made no declaration of unconstitutionality of any law nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case. Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes conducted by the Ombudsman, such as the filing of the Information against petitioner. With the foregoing disquisition, the second issue is rendered moot and academic. WHEREFORE, the petition is DISMISSED for lack of merit. No costs. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ* Associate Justice Acting Chairperson WE CONCUR:

DANTE O. TINGA* Associate Justice MINITA V. CHICO-NAZARIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice

TERESITA J. LEONARDO-DE CASTRO** 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 Courts Division. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice Acting Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO A. QUISUMBING Acting Chief Justice

Footnotes
*

In lieu of Justice Consuelo Ynares-Santiago, per Special Order No. 556 dated January 15, 2009. In lieu of Justice Diosdado M. Peralta, per Special Order No. 560 dated January 16, 2009.

**

Penned by Associate Justice Eloy Bello, Jr. and concurred in by Associate Justices Cancio Garcia (a retired member of the Supreme Court) and Mariano del Castillo; rollo, p. 42
2

Id. at 56. Rollo, pp. 18-19. G.R. No. 180214, August 9, 1999, 312 SCRA 77. Rollo, pp. 22-23. Rollo, p. 24. Id. at 25.

Id. at 25-26. Id. at 27. Id. at 32. Id. at 33. Id. at 50. Rollo, p. 8. G.R. Nos. 145957-68, January 25, 2002, 374 SCRA 691. Uy v. Sandiganbayan, supra note 4. G.R. No. 145938, February 10, 2006, 482 SCRA 182. Petition, rollo, p. 12.

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Roos Industrial Construction, Inc. v. National Labor Relations Commission, G.R. No. 172409, February 4, 2008, 543 SCRA 666.
19

Ejercito v. Sandiganbayan, G.R. No. 157294-95, November 30, 2006, 509 SCRA 190. Chavez v. Public Estates Authority, G. R. No. 133250, May 6, 2003, 403 SCRA 1.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 129124 March 15, 2002

RENATO A. TAPIADOR, petitioner, vs. OFFICE OF THE OMBUDSMAN and ATTY. RONALDO P. LEDESMA, respondents. DE LEON, JR., J.: This is a petition for review on certiorari of the Resolution1 dated January 22, 1997 of the Office of the Ombudsman in OMBADM-0-94-0983 dismissing the petitioner from the government service for grave misconduct and the Order2 dated April 7, 1997 denying the petitioner's motion for reconsideration.
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The incipience of the case could be traced to the complaint-affidavit3 dated July 4, 1994 lodged with the Resident Ombudsman at the main office in Manila of the Bureau of Immigration and Deportation (BID for brevity) by Walter H. Beck, a U.S. citizen, against the petitioner, Renato A. Tapiador, BID Special Investigator and assigned as Technical Assistant in the office of the then Associate Commissioner Bayani M. Subido, Jr. The complaint alleged in substance that petitioner Tapiador demanded and received from Walter Beck the amount of Ten Thousand Pesos (P10,000.00) in exchange for the issuance of an alien certificate of registration (ACR for brevity) which was subsequently withheld deliberately by the petitioner despite repeated demands by Beck, unless the latter pay an additional amount of Seven Thousand Pesos (P7,000.00). Accompanying the complaint was the affidavit4executed by a certain Purisima C. Terencio which essentially seeks to corroborate the alleged payment of the amount of

Ten Thousand Pesos (P10,000.00) by Walter Beck and his wife to the petitioner in consideration for the issuance of the subject ACR. The petitioner categorically denied in his counter-affidavit5 dated July 11, 1994 that he demanded nor received any amount of money from Walter Beck in consideration for the issuance of the latter's ACR. In addition, the petitioner alleged that Beck and his wife, Monica Beck, came to the BID office in Manila on June 29, 1994 to follow-up his visa application. On the said occasion, when the petitioner advised the couple to accomplish first all the requirements for a visa application, Beck and his wife shouted invectives at him and charged the petitioner with having demanded money from them. This incident prompted the petitioner to file a criminal complaint for oral defamation before the Office of the City Prosecutor in Manila. The petitioner's allegations were corroborated by Rosanna C. Vigo, a BID employee and officemate of the petitioner, in her affidavit dated July 15, 1994.6 After investigation, BID Resident Ombudsman Ronaldo P. Ledesma found the petitioner liable for violating existing civil service rules and regulations as well as penal laws and thus, recommended that criminal and administrative charges be filed against the petitioner. Upon review of the case, the criminal charge was dismissed by the Ombudsman for lack of evidence;7 however, the Ombudsman found the petitioner liable for grave misconduct in the administrative aspect of the case and imposed the penalty of dismissal from the government service.8 His subsequent motion for reconsideration having been denied on April 7, 1997, the petitioner filed the instant petition for review9 which raises the following assignment of errors: I THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN FINDING THAT PETITIONER IS GUILTY OF GRAVE MISCONDUCT DESPITE LACK OF SUBSTANTIAL EVIDENCE TO SUPPORT IT. II THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN RENDERING THE QUESTIONED RESOLUTION ONLY AFTER ALMOST THREE YEARS, IN VIOLATION OF PETITIONER'S RIGHT TO SPEEDY TRIAL. III THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN RENDERING THE QUESTIONED RESOLUTION WITHOUT CONDUCTING A PRELIMINARY CONFERENCE AND ACTUAL HEARING IN VIOLATION OF ITS OWN RULES, THUS CONSTITUTING A VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS. IV THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN CONTRADICTING ITS OWN FINDING RELATIVE TO THE CRIMINAL ASPECT OF THIS CASE DISMISSING THE COMPLAINT FOR LACK OF EVIDENCE. V THE HONORABLE OFFICE OF THE OMBUDSMAN GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DISMISSAL AGAINST PETITIONER, DESPITE THE FACT THAT IT WAS HIS FIRST OFFENSE IN HIS THIRTY YEARS IN THE GOVERNMENT SERVICE. In the Resolution dated July 7, 1997, we required the public respondent to file his comment to the instant petition. After several

extensions of time given by this Court, the Office of the Solicitor General filed a Manifestation and Motion In Lieu of Comment10 on February 20, 1998 which essentially recommended that the petitioner be exonerated from the subject administrative charge on the ground that the assailed resolution of the Ombudsman was rendered in violation of procedural due process and that it was not supported by substantial evidence. Consequently, we directed the Office of the Ombudsman to file directly its own comment which it did on May 12, 1998.11 The petitioner filed a Reply12 thereto on August 14, 1998. Thereafter, this case was submitted for decision after the petitioner, the Office of the Ombudsman and the Office of the Solicitor General had filed their respective memoranda.13 The Office of the Ombudsman maintains that the petitioner was accorded due process of law inasmuch as he was duly informed and furnished a copy of the complaint against him as evidenced by his letters dated July 22 and 26, 1996 addressed to the investigating officer requesting for a copy of the case records to enable him to prepare for his defense. Likewise, there was no undue delay in the conduct of the administrative proceedings since the preliminary investigation was conducted immediately after the complaint was filed in 1994; and that after the criminal aspect of the case was resolved, the administrative proceeding was conducted shortly thereafter. That no preliminary conference had been conducted in the case was primarily due to the petitioner's manifestation to dispense thereof and submit the case for resolution inasmuch as he has already filed his memorandum of evidence. Moreover, the Ombudsman opined that the petitioner was absolved of criminal liability during the preliminary investigation of this case due to insufficiency of evidence constituting probable cause contrary to his claim that there was absolutely no evidence against him. However, the Ombudsman asserts that the sworn statements of Walter Beck a and his witness, Purisima Terencio, substantially established the administrative liability of the petitioner for grave misconduct by demanding from complainant Beck a sum of money in exchange for the issuance of the latter's ACR; and for that offense, petitioner should be imposed the corresponding penalty of dismissal from the government service.14 By way of reply, the petitioner adverted to the minutes15 of the preliminary hearing on July 18, 1998 and contended that it was the hearing officer, Atty. Vitaliano M. Mendoza, who instructed him and his counsel to simply file a memorandum within fifteen (15) days after which the case shall be deemed submitted for resolution. The petitioner reiterated that the Office of the Ombudsman found no evidence against him in its investigation of the criminal aspect of the case and thus, he argued that the instant administrative charge should also have been dismissed. In administrative proceedings, the complainant has the burden of proving, by substantial evidence, the allegations in the complaint.16 Substantial evidence does not necessarily import preponderance of evidence as is required in an ordinary civil case; rather, it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.17 In dismissing the petitioner from the government service the Office of the Ombudsman reasoned out, as follows: xxx [E]vidence for the complainant clearly established that respondent Tapiador unlawfully received the amount of P10,000.00 from spouses Walter and Monica Becker (sic), which act was personally witnessed by complainant's witness, Purisima C. Terencio, who in her affidavit dated July 01, 1994 positively identified the respondent as the person to whom spouses Becker (sic) gave the money. In quoting, witness Terencio states "That said spouses paid the full amount of P10,000.00 on February 23, 1992 to Mr. Tapiador as payment for the Alien Certificate of Registration with the promise for the immediate release of the same" (p. 13, Record). To us, the said declaration of witness Terencio appears to be credible and worthy of belief since there is no apparent reason for her to impute false statements against the respondent. It is also significant to observe that the said declaration of Terencio was aptly corroborated by complainant Walter Becker (sic), a foreigner, who in his desire to stay permanently in the Philippines became a victim of such irregularity. Moreover, there is no showing that respondent, in his capacity as Technical Assistant, is authorized to receive payment for the processing of ACR. Worse, Mrs. Becker (sic) also claimed that respondent demanded an additional amount of P7,000.00 from them for the release of the ACR.18 Notably, the instant administrative complaint was resolved by the Ombudsman merely on the basis of the evidence extant in the record of OMB-ADM-0-94-0983. The preliminary conference required under Republic Act No. 677019was dispensed with after the nominal complainant, then BID Resident Ombudsman Ronaldo P. Ledesma, manifested on July 29, 1996 that he was submitting the case for resolution on the basis of the documents on record20 while the petitioner agreed to simply file his

memorandum.21 Consequently, the only basis for the questioned resolution of the Ombudsman dismissing the petitioner from the government service was the unverified complaint-affidavit of Walter H. Beck and that of his alleged witness, Purisima Terencio. A thorough review of the records, however, showed that the subject affidavits of Beck and Terencio were not even identified by the respective affiants during the fact-finding investigation conducted by the BID Resident Ombudsman at the BID office in Manila. Neither did they appear during the preliminary investigation to identify their respective sworn statements despite prior notice before the investigating officer who subsequently dismissed the criminal aspect of the case upon finding that the charge against the petitioner "was not supported by any evidence".22 Hence, Beck's affidavit is hearsay and inadmissible in evidence. On this basis alone, the Administrative Adjudication Bureau of the Office of the Ombudsman should have dismissed the administrative complaint against the petitioner in the first instance. Nonetheless, a perusal of the affidavit executed by Walter Beck does not categorically state that it was petitioner Tapiador who personally demanded from Beck the amount of Ten Thousand Pesos (P10,000.00) in consideration for the issuance of the latter's ACR. On the other hand, it appears that Walter Beck and his wife sought the assistance of Purisima Terencio sometime in the later part of 1992 in facilitating the issuance of his ACR and in the process, Terencio allegedly informed the couple that Beck could be granted the same and would be allowed to stay in the Philippines permanently with the help of the petitioner and a certain Mr. Angeles who was also with the BID, for a fee of Ten Thousand Pesos (P10,000.00). Hence, Beck and his wife did not appear to have any direct or personal knowledge of the alleged demand of the petitioner except through the information allegedly relayed to them by Terencio. Likewise, although Beck claimed to have subsequently paid Ten Thousand Pesos (P10,000.00), his affidavit is silent as to the identity of the person who actually received the said amount from him. The pertinent portion of his affidavit reads, thus: 1. That during the months of Sept[ember] and Oct[ober] 1992 a certain Baby (Purisima)Terencio informed us that I could be granted an ACR and will be allowed to stay in the Philippines permanently thru Mr. Tapiador and Mr. Angeles, both from the Bureau of Immigration, Manila and the fees was agreed atP10,000.00, official receipts inclusive (sic); 2. That after completing all the requirements and the amount of P10,000.00 was given I waited but no ACR was given to me; 3. That sometime in February 1993 my wife went to see Mr. Tapiador and was informed that he will hold my passport while I have my ACR, which I refused; 4. That when we transferred (sic) our residence to Negros Occ[idental] we arranged with Mr. Tapiador to pick up the ACR before we will leave for that place, and when my wife went again to see Mr. Tapiador to pick up the ACR he was not in the office, and that Baby Terencio promised to (sic) us that the ACR will be mailed to us, but it was never mailed;23 xxx xxx xxx

Walter Beck could have easily stated in his affidavit that he paid the said amount directly to the petitioner if it were indeed the latter who actually received the same, but he did not. This significant omission in his affidavit is fatal in establishing the alleged administrative liability of the petitioner. It also appears that Beck and the petitioner would eventually meet personally for the first time only later, more specifically on June 23, 1994, at the office of the latter. On the said occasion, so Beck's affidavit went on to state, petitioner even informed him that his ACR had been approved but that he still needed to submit his quarantine clearance before the same could be issued to him. Before the said date however, it appears that Purisima Terencio had apparently been doing most of the legwork for the Beck couple in facilitating the release of the subject ACR. Consequently, there is logical basis to assume that it was to Terencio that the alleged payment was made by the Beck couple. Anent the affidavit of Purisima Terencio, the Ombudsman gave full faith and credit to her statement that the "spouses paid the full amount of Ten Thousand Pesos (P10,000.00) on February 23, 1992 to Mr. Tapiador as payment for the Alien Certificate of Registration with the promise for the immediate release of the same"24 on the mere assumption that there is no apparent reason

for her to impute false statements against the petitioner who is employed with the government for more than thirty (30) years.25 On the contrary, the rule that witnesses are presumed to tell the truth until proven otherwise26 does not apply to the case at bar for the reason that Terencio had the motive to impute falsities to avoid the inevitable wrath of the Beck spouses for reneging on her promise to send them by mail the subject ACR. The Ombudsman should have been more prudent in according credence to the allegations of Terencio coming as they do from a supposed "fixer". Besides, Purisima Terencio was adroit enough to make it appear in her affidavit that the Beck spouses had paid Ten Thousand Pesos (P10,000.00) in "grease money" to the petitioner on February 23, 1992 even without categorically stating that she had personal knowledge or had actually witnessed the alleged pay off. A close scrutiny of the allegations in her affidavit show that the alleged pay off had taken place as early as February 23, 1992. However, Beck claimed in his own affidavit that he was informed by Terencio only between the period from September to October 1992 that the processing of his ACR could be facilitated through the assistance of the petitioner and a certain Mr. Angeles. This glaring inconsistency more than sufficiently impeached Terencio's credibility thereby belying the assessment of the Ombudsman in the assailed resolution.
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In view of the foregoing, it is not necessary anymore to pass upon the other grounds raised by the petitioner in his petition. The complainant clearly failed to present the quantum of proof necessary to prove the charge in the subject administrative case, that is, with substantial evidence.27 Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution,28 the Ombudsman can only "recommend" the removal of the public official or employee found to be at fault, to the public official concerned. WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the Ombudsman dated January 22, 1997 dismissing the petitioner from the government service and the Order dated April 7, 1997 in OMB-ADM-0-94-0983 are REVERSED and SET ASIDE. The petitioner is hereby ordered REINSTATED immediately to his position in the government service more particularly in the Bureau of Investigation and Deportation, Manila, without loss nor diminution in his salaries and benefits. SO ORDERED. Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.

Footnote
1

Resolution approved by the Ombudsman on March 14, 1997. Petition, Annex "A", Rollo, pp. 18-21. Petition, Annex "B", Rollo, pp. 22-24. Denominated as "Affidavit of Explanation". Petition, Annex "C", Rollo, p. 25. Petition, Annex "D", Rollo, pp. 26-27. Rollo, p.28. Rollo, p. 34. Resolution approved by the Deputy Ombudsman for the Military on January 6, 1995. Rollo, pp. 35-38. See Note No. 1. Rollo, pp. 3-16.

10

Rollo, pp. 76-91. Rollo, pp. 102-110. Rollo, pp. 129-133.

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12

13

Rollo, pp. 141-154; 155-165. The memorandum filed by the Office of the Solicitor General in this case on November 27, 1998 can be located at the unnumbered later portion of the rollo.
14

See Note No. 11. Rollo, p. 124.

15

16

Lorena v. Encomienda, 302 SCRA 632, 641 (1999); Cortes v. Agcaoili, 294 SCRA 423, 456 (1998); Lachica v. Flordeliza, 254 SCRA 278, 284 (1996).
17

Santos v. Court of Appeals, 229 SCRA 524, 531 (1994); Heirs of E. B. Roxas, Inc. v. Tolentino, 167 SCRA 334, 341 (1988).
18

Rollo, pp. 19-20. Otherwise known as the Ombudsman Act of 1989. Rollo, p. 127. See Note No. 15. See Note No. 7. See Note No. 3. See Note No.4. Petition, Annex "F", Rollo, p. 39. People v. Gayomma, 315 SCRA, 639, 648 (1999); People v. Suplito, 314 SCRA 493, 503 (1999). See Note No. 17. "Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx

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(3) Direct the officer concerned to take appropriate action against a public official or employee at fault and recommend his removal xxx."

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FIRST DIVISION
ATTY. RONALDO P. LEDESMA, Petitioner, G.R. No. 161629 Present: Davide, Jr., C.J. (Chairman), Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ.

- versus -

HON. COURT OF APPEALS, HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, HON. ABELARDO L. APORTADERA, in his capacity as Assistant Ombudsman, and Ombudsmans Fact Finding and Intelligence Bureau, represented by Promulgated: Director AGAPITO ROSALES, Respondents. July 29, 2005 x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari seeks to reverse and set aside the decision[1] dated August 28, 2003 and the resolution[2] dated January 15, 2004 of the Court of Appeals[3] in CA-G.R. SP No. 58264 which affirmed with

modification public respondents (1) Joint Resolution dated January 22, 1999 , which ordered, among other things, petitioners suspension for one (1) year for conduct prejudicial to the service; and (2) Order dated February 8, 2000, as reiterated in a Memorandum dated March 17, 2000, which denied petitioners motion for reconsideration but reduced his suspension to nine (9) months without pay. The Court of Appeals modified the above issuances by further reducing petitioners suspension from nine (9) months to six (6) months and one (1) day without pay.[4] Petitioner Atty. Ronaldo P. Ledesma is the Chairman of the First Division of the Board of Special Inquiry (BSI) of the Bureau of Immigration and Deportation (BID). In a letter-complaint filed by Augusto Somalio with the Fact Finding and Intelligence Bureau (FIIB) of the Office of the Ombudsman, an investigation was requested on alleged anomalies surrounding the extension of the Temporary Resident Visas (TRVs) of two (2) foreign nationals. The FIIB investigation revealed seven (7) other cases of TRV extensions tainted with similar irregularities. As a result, the FIIB, as nominal complainant, filed before the Administrative Adjudication Bureau (AAB) of the Office of the Ombudsman a formal complaint against herein petitioner. Also charged administratively were Atty. Arthel Caronongan and Ma. Elena P. Ang, Board Member and Executive Assistant, respectively, in petitioners division. With respect to petitioner, the complaint was treated as both a criminal and an administrative charge and docketed as OMB-0-98-0214 (criminal aspect), for nine (9) counts of violation of the Anti-Graft and Corrupt Practices Act and for falsification of public documents, and OMB-ADM-0-98-0038 (administrative aspect), for nine (9) counts of Dishonesty, Grave Misconduct, Falsification of Public Documents and Gross Neglect of Duty. The complaint against petitioner, Caronongan and Ang alleged the following illegal acts: (a) irregularly granting TRVs beyond the prescribed period; and (b) using recycled or photocopied applications for a TRV extension without the applicants affixing their signatures anew to validate the correctness and

truthfulness of the information previously stated therein. Specifically, petitioner and Caronongan allegedly signed the Memorandum of Transmittal to the Board of Commission (BOC) of the BID, forwarding the applications for TRV extension of several aliens whose papers were questionable. In a Joint Resolution[5] dated January 22, 1999, Graft Investigation Officer Marlyn M. Reyes resolved the administrative cases filed against petitioner, Caronongan and Ang, as follows:
WHEREFORE, foregoing considered, it is respectfully recommended that: 1. Respondent ATTY. RONALDO P. LEDESMA be SUSPENDED from the service for one (1) year for Conduct Prejudicial to the Interest of the Service; The instant case against ATTY. ARTHEL B. CARONONGAN be DISMISSED, the same having been rendered moot and academic; and The instant case against respondent MA. ELENA P. ANG be DISMISSED for lack of sufficient evidence.

2.

3.

SO RESOLVED.[6]

Respondent Assistant Ombudsman Abelardo L. Aportadera, Jr. reviewed the Joint Resolution which was approved by respondent Ombudsman Desierto on December 29, 1999.[7] In the meantime, on July 9, 1999, respondent Ombudsman approved a Resolution[8] dated June 22, 1999 of Graft Investigation Officer Marilou B. Ancheta-Mejica, dismissing the criminal charges against petitioner for insufficiency of evidence.[9] Petitioner filed a motion for reconsideration[10] in the administrative case alleging that the BOC which reviews all applications for TRVs extension, approved the TRVs in question, hence, petitioner argued that it effectively declared the applications for extension regular and in order and waived any infirmity thereon.

In an Order[11] dated February 8, 2000, Graft Officer Reyes recommended the denial of the motion for reconsideration which was approved by respondent Ombudsman on March 24, 2000 but reduced the period of suspension from one (1) year to nine (9) months without pay. On April 13, 2000, petitioner filed a petition for review with the Court of Appeals, which included a prayer for the issuance of a writ of preliminary prohibitory mandatory injunction and/or temporary restraining order to enjoin public respondents from implementing the order of suspension. The Court of Appeals issued the TRO on April 19, 2000. In its Decision dated August 28, 2003, the Court of Appeals affirmed petitioners suspension but reduced the period from nine (9) months to six (6) months and one (1) day without pay.[12] With the denial of his motion for reconsideration, petitioner filed the instant petition for review on the following grounds:
I. IN PROMULGATING ITS ASSAILED DECISION, RESPONDENT COURT OF APPEALS MANIFESTLY OVERLOOKED THE FOLLOWING RELEVANT FACTS AND MATTERS WHICH, IF PROPERLY CONSIDERED, WOULD HAVE JUSTIFIED A DIFFERENT CONCLUSION IN FAVOR OF PETITIONER: ...

II. THE PRONOUNCEMENT OF RESPONDENT COURT OF APPEALS THAT THE FINDING OF THE OMBUDSMAN IS NOT MERELY ADVISORY ON THE BUREAU OF IMMIGRATION (BI) IS CONTRARY TO THE PERTINENT PROVISION OF THE 1987 CONSTITUTION AND APPLICABLE DECISIONS OF THE HONORABLE COURT. III. RESPONDENT COURT OF APPEALS ALSO FAILED TO CONSIDER THAT THE OMBUDSMANS RESOLUTION FINDING PETITIONER ADMINISTRATIVELY LIABLE CONSTITUTES AN INDIRECT ENCROACHMENT INTO THE POWER OF THE BUREAU OF IMMIGRATION OVER IMMIGRATION MATTERS.[13]

The petition lacks merit. Petitioner insists that it was the BOC which approved the questioned applications for the extension of the TRVs. He denies that he misled or deceived the BOC into approving these applications and argues that the BOC effectively ratified his actions and sanctioned his conduct when it approved the subject applications. Petitioner adds that he acted in good faith and the government did not suffer any damage as a result of his alleged administrative lapse. We are not persuaded. In his attempt to escape liability, petitioner undermines his position in the BID and his role in the processing of the subject applications. But by his own admission,[14] it appears that the BSI not only transmits the applications for TRV extension and its supporting documents, but more importantly, it interviews the applicants and evaluates their papers before making a recommendation to the BOC. The BSI reviews the applications and when it finds them in order, it executes a Memorandum of Transmittal to the BOC certifying to the regularity and propriety of the applications. In Arias v. Sandiganbayan,[15] we stated that all heads of offices have to rely to a reasonable extent on their subordinates. Practicality and efficiency in the conduct of government business dictate that the gritty details be sifted and reviewed by the time it reaches the final approving authority. In the case at bar, it

is not unreasonable for the BOC to rely on the evaluation and recommendation of the BSI as it cannot be expected to review every detail of each application transmitted for its approval. Petitioner being the Chairman of the First Division of the BSI has direct supervision over its proceedings. Thus, he cannot feign ignorance or good faith when the irregularities in the TRV extension applications are so patently clear on its face. He is principally accountable for certifying the regularity and propriety of the applications which he knew were defective. Petitioner could not validly claim that he was singled out for prosecution. It is of record that administrative cases were also filed against Caronongan and Ang, but extraneous circumstances rendered the case against Caronongan moot while the case against Ang was dismissed because it was proven that she merely implemented the approved decision of the BOC. Equally untenable is the contention that the BOCs approval of the defective applications for TRV extension cured any infirmities therein and effectively absolved petitioners administrative lapse. The instant administrative case pertains to the acts of petitioner as Chairman of the First Division of the BSI in processing nine (9) defective applications, independent of and without regard to the action taken by the BOC. It does not impugn the validity of the TRV extensions as to encroach upon the authority of the BID on immigration matters. The main thrust of the case is to determine whether petitioner committed any misconduct, nonfeasance, misfeasance or malfeasance in the performance of his duties. Anent the second and third grounds, petitioner essentially puts in issue the import of the Ombudsmans findings. Petitioner questions the Court of Appeals pronouncement that the findings of the Ombudsman may not be said to be merely recommendatory upon the Immigration Commissioner. He argues that to uphold the appellate courts ruling expands the authority granted by the Constitution to the Office of the Ombudsman and runs counter to prevailing jurisprudence on the matter, particularly Tapiador v. Office of the Ombudsman.[16] Petitioner submits that the Ombudsmans findings that the TRV applications were illegal constitutes an indirect interference by the Ombudsman into the powers of the BOC over immigration matters.

We do not agree. The creation of the Office of the Ombudsman is a unique feature of the 1987 Constitution.[17] The Ombudsman and his deputies, as protectors of the people, are mandated to act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.[18] Foremost among its powers is the authority to investigate and prosecute cases involving public officers and employees, thus:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) 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.

Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed into law on November 17, 1989 and provided for the structural and functional organization of the Office of the Ombudsman. RA 6770 mandated the Ombudsman and his deputies not only to act promptly on complaints but also to enforce the administrative, civil and criminal liability of government officers and employees in every case where the evidence warrants to promote efficient service by the Government to the people.[19] The authority of the Ombudsman to conduct administrative investigations as in the present case is settled.[20] Section 19 of RA 6770 provides:
SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (1) Are contrary to law or regulation; (2) Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agencys functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or

(6)

Are otherwise irregular, immoral or devoid of justification.

The point of contention is the binding power of any decision or order that emanates from the Office of the Ombudsman after it has conducted its investigation. Under Section 13(3) of Article XI of the 1987 Constitution, it is provided:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and 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. (Emphasis supplied)

Petitioner insists that the word recommend be given its literal meaning; that is, that the Ombudsmans action is only advisory in nature rather than one having any binding effect, citing Tapiador v. Office of the Ombudsman,[21] thus:
... Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only recommend the removal of the public official or employee found to be at fault, to the public official concerned.[22]

For their part, the Solicitor General and the Office of the Ombudsman argue that the word recommend must be taken in conjunction with the phrase and ensure compliance therewith. The proper interpretation of the Courts statement in Tapiador should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency concerned to implement the penalty imposed. In other words, it merely concerns theprocedural aspect of the Ombudsmans functions and not its jurisdiction.

We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination. The provisions of RA 6770 support public respondents theory. Section 15 is substantially the same as Section 13, Article XI of the Constitution which provides for the powers, functions and duties of the Ombudsman. We draw attention to subparagraph 3, to wit:
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: ... (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (Emphasis supplied)

We note that the proviso above qualifies the order to remove, suspend, demote, fine, censure, or prosecute an officer or employee akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring

officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsmans recommendation is not merely advisory in nature but is actually mandatory within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged.[23] By stating therefore that the Ombudsman recommends the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer, which in this case would be the head of the BID. It is likewise apparent that under RA 6770, the lawmakers intended to provide the Office of the Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate as protector of the people against inept and corrupt government officers and employees. The Office was granted the power to punish for contempt in accordance with the Rules of Court.[24] It was given disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies (with the exception only of impeachable officers, members of Congress and the Judiciary).[25] Also, it can preventively suspend any officer under its authority pending an investigation when the case so warrants.[26] The foregoing interpretation is consistent with the wisdom and spirit behind the creation of the Office of the Ombudsman. The records of the deliberations of the Constitutional Commission[27] reveal the following:
MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea

of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO: Madam President, what I am worried about is if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them. MR. MONSOD: I agree with the Commissioner.

MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature?[28] MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630did not follow the main thrust; instead it created the Tanodbayan, ... ... MR. MONSOD: (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position, The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed. So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. (Emphasis supplied)[29]

It is thus clear that the framers of our Constitution intended to create a stronger and more effective Ombudsman, independent and beyond the reach of political influences and vested with powers that are not merely persuasive in character. The Constitutional Commission left to Congress to empower the

Ombudsman with prosecutorial functions which it did when RA 6770 was enacted. In the case of Uy v. Sandiganbayan,[30] it was held:
Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the peoples complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions. ...[31]

In light of the foregoing, we hold that the Court of Appeals did not commit any error in finding the petitioner guilty of conduct prejudicial to the interest of the service and reducing petitioners period of suspension to six (6) months and one (1) day without pay, taking into account the education and length of service of petitioner. WHEREFORE, the instant petition is DENIED. The Decision dated August 28, 2003 and the Resolution dated January 15, 2004 of the Court of Appeals in CA-G.R. SP No. 58264 are AFFIRMED. SO ORDERED.

CONSUELO YNARES-SANTIAGO Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR. Chief Justice

LEONARDO A. QUISUMBING Associate Justice

ANTONIO T. CARPIO Associate Justice

ADOLFO S. AZCUNA Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

HILARIO G. DAVIDE, JR. Chief Justice

[1] [2]

Rollo, pp. 38-53. Id. at 55. [3] Penned by then Court of Appeals Presiding Justice (currently Supreme Court Associate Justice) Cancio C. Garcia as concurred in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria III. [4] Rollo, p. 52. [5] Id. at 56-65. [6] Id. at 64. [7] Id. at 65. [8] Id. at 76-82. [9] Id. at 82. [10] Id. at 66-74. [11] Id. at 83-88. [12] Id. at 52. [13] Id. at 14-16 [14] Id. at 19. [15] G.R. No. 81563, 19 December 1989, 180 SCRA 309, 316. See also Nicolas v. Desierto, G.R. No. 154668, 16 December 2004; Kara-an v. Office of the Ombudsman, G.R. No. 119990, 21 June 2004, 432 SCRA 457. [16] 429 Phil. 47, 58 (2002). [17] Article XI, Accountability of Public Officers. [18] Article XI, Section 12. [19] Section 13, RA 6770. [20] See also Mayor Garcia v. Hon. Mojica, 372 Phil. 892, 903 (1999). [21] Supra. [22] Id. at 58. [23] Sanchez v. Demetriou, G.R. Nos. 111771-77, 9 November 1993, 227 SCRA 627, 637. [24] Section 15(9). [25] Section 21. [26] Section 24. [27] As cited in Camanag v. Guerrero, 335 Phil. 945 (1997). [28] The enumeration of the powers, functions and duties of the Office of the Ombudsman under the 1987 Constitution included this provision which was the basis for the issuance of RA 6770: Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: ... (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. [29] Supra, note 27 at 964-965. [30] G.R. Nos. 105965-70, 20 March 2001, 354 SCRA 651. [31] Id. at 666.

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Republic of the Philippines SUPREME COURT Manila EN BANC G. R. No. 159314 June 26, 2006

EDGARDO V. ESTARIJA, Petitioner, vs. EDWARD F. RANADA and the Honorable OMBUDSMAN Aniano A. Desierto (now succeeded by Hon. Simeon Marcelo), and his Deputy OMBUDSMAN for Mindanao, Hon. Antonio E. Valenzuela, Respondents. DECISION QUISUMBING, J.: This petition for review on certiorari assails the February 12, 2003 Decision1 of the Court of Appeals in CA-G.R. SP No. 62557 which affirmed the October 2, 2000 Decision2 of the Office of the Ombudsman-Mindanao in OMB-MIN-ADM-98-183. The facts are as follows: On August 10, 1998, respondent Edward F. Ranada, a member of the Davao Pilots Association, Inc. (DPAI) and Davao Tugboat and Allied Services, Inc., (DTASI) filed an administrative complaint for Gross Misconduct before the Office of the OmbudsmanMindanao, against petitioner Captain Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority (PPA), Port of Davao, Sasa, Davao City.3

The complaint alleged that Estarija, who as Harbor Master issues the necessary berthing permit for all ships that dock in the Davao Port, had been demanding monies ranging from P200 to P2000 for the approval and issuance of berthing permits, and P5000 as monthly contribution from the DPAI. The complaint alleged that prior to August 6, 1998, in order to stop the mulcting and extortion activities of Estarija, the association reported Estarijas activities to the National Bureau of Investigation (NBI). On August 6, 1998, the NBI caught Estarija in possession of the P5,000 marked money used by the NBI to entrap Estarija. Consequently, the Ombudsman ordered petitioners preventive suspension4 and directed him to answer the complaint. The Ombudsman filed a criminal case docketed as Criminal Case No. 41,464-98, against Estarija for violation of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act, before the Regional Trial Court of Davao City, Branch No. 8.5 In his counter-affidavit6 and supplemental counter-affidavit,7 petitioner vehemently denied demanding sums of money for the approval of berthing permits. He claimed that Adrian Cagata, an employee of the DPAI, called to inform him that the DPAI had payables to the PPA, and although he went to the associations office, he was hesitant to get the P5,000 from Cagata because the association had no pending transaction with the PPA. Estarija claimed that Cagata made him believe that the money was a partial remittance to the PPA of the pilotage fee for July 1998 representing 10% of the monthly gross revenue of their association. Nonetheless, he received the money but assured Cagata that he would send an official receipt the following day. He claimed that the entrapment and the subsequent filing of the complaint were part of a conspiracy to exact personal vengeance against him on account of Ranadas business losses occasioned by the cancellation of the latters sub-agency agreement with Asia Pacific Chartering Phil., Inc., which was eventually awarded to a shipping agency managed by Estarijas son. On August 31, 2000, the Ombudsman rendered a decision8 in the administrative case, finding Estarija guilty of dishonesty and grave misconduct. The dispositive portion reads: WHEREFORE, premises considered, there being substantial evidence, respondent EDGARDO V. ESTARIJA is hereby found guilty of Dishonesty and Grave Misconduct and is hereby DISMISSED from the service with forfeiture of all leave credits and retirement benefits, pursuant to Section 23(a) and (c) of Rule XIV, Book V, in relation to Section 9 of Rule XIV both of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292). He is disqualified from reemployment in the national and local governments, as well as in any government instrumentality or agency, including government owned or controlled corporations. This decision is immediately executory after it attains finality. Let a copy of this decision be entered in the personal records of respondent EDGARDO V. ESTARIJA. PPA Manager Manuel C. Albarracin is hereby directed to implement this Office Decision after it attains finality. SO DECREED.9 Estarija seasonably filed a motion for reconsideration.10 Estarija claimed that dismissal was unconstitutional since the Ombudsman did not have direct and immediate power to remove government officials, whether elective or appointive, who are not removable by impeachment. He maintains that under the 1987 Constitution, the Ombudsmans administrative authority is merely recommendatory, and that Republic Act No. 6770, otherwise known as "The Ombudsman Act of 1989", is unconstitutional because it gives the Office of the Ombudsman additional powers that are not provided for in the Constitution. The Ombudsman denied the motion for reconsideration in an Order11 dated October 31, 2000. Thus, Estarija filed a Petition for Review with urgent prayer for the issuance of a temporary restraining order and writ of preliminary prohibitory injunction before the Court of Appeals. The Court of Appeals, on February 12, 2003, dismissed the petition and affirmed the Ombudsmans decision. The Court of Appeals held that the attack on the constitutionality of Rep. Act No. 6770 was procedurally and substantially flawed. First, the constitutionality issue was belatedly raised in the motion for reconsideration of the decision of the Ombudsman. Second, the petitioner was unable to prove the constitutional breach and failed to overcome the presumption of constitutionality in favor of the questioned statute. The Court of Appeals affirmed the decision of the Ombudsman, holding that receiving extortion money constituted dishonesty

and grave misconduct. According to the Court of Appeals, petitioner failed to refute the convincing evidence offered by the complainant. Petitioner presented affidavits executed by the high-ranking officials of various shipping agencies which were found by the Court of Appeals to be couched in general and loose terms, and according to the appellate court, could not be given more evidentiary weight than the sworn testimonies of complainant and other witnesses that were subjected to cross-examination. Petitioner filed a motion for reconsideration but the Court of Appeals denied the same for lack of merit. Hence, the instant petition assigning the following errors: (A) That certain basic factual findings of the Court of Appeals as hereunder specified, are not borne by any substantial evidence, or are contrary to the evidence on record, or that the Court of Appeals has drawn a conclusion or inference which is manifestly mistaken or is based on a misappreciation of the facts as to call for a corrective review by this Honorable Supreme Court; (B) That Republic Act No. 6770, otherwise known as the "Ombudsmans Act of 1989", isunconstitutional, or that the Honorable OMBUDSMAN does not have any constitutional direct and immediate power, authority or jurisdiction to remove, suspend, demote, fine or censure, herein Petitioner and all other government officials, elective or appointive, not removable by impeachment, consistent with Sec. 13, par. No. (3), Art XI, of the 1987 Philippine Constitution. (C) That corollary to, or consistent with, the aforecited Second Reason, said REPUBLIC ACT No. 6770, as amended, is constitutionally impaired and invalid insofar as it is inconsistent with, or violative of, the aforecited constitutional provisions (Sec 13, No. 3, Art XI). (D) That the issue of "jurisdiction" or constitutionality or validity of a law, statute, rule or regulation can be raised at any stage of the case, even by way of a motion for reconsideration after a decision has been rendered by the court or judicial arbiter concerned. (E) That the DECISION of the Court of Appeals is contrary to jurisprudential law, specifically to the ruling of this Honorable SUPREME COURT in the case of "Renato A. Tapiador, Petitioner versusOffice of the Ombudsman and Atty. Ronaldo P. Ledesma, Respondents, G.R No. 129124" decided on March 15, 2002. (F) That assuming arguendo that the Honorable OMBUDSMAN does have such direct constitutional power to remove, suspend, etc. government officials not removable by impeachment, the DECISION rendered in said case OMB-MIN-ADM-98-[183], finding Petitioner "guilty of Dishonesty and Grave Misconduct" and directing his "dismissal from the service, with forfeiture of all leave credits and retirement benefits xxx", is still contrary to law and the evidence on record, or, at the very least, the charge of "Dishonesty" is not included in RANADAs administrative complaint and absolutely no evidence was presented to prove "Dishonesty" and the complaint which was limited to "[Grave] Misconduct" only; (G) That further assuming arguendo that Petitioner is subject to direct administrative disciplinary authority by the Honorable OMBUDSMAN whether under the Constitution or RA 6770, and assuming that he is "guilty" of "Dishonesty and Grave Misconduct", the Court of Appeals violated Sec. 25 of R.A. 6770 for not considering and applying, several mitigating circumstances in favor of Petitioner and that the penalty (of dismissal with loss of benefits) imposed by OMBUDSMAN is violative of Sec. 25, of R.A. 6770 and is too harsh, inhumane, violative of his human dignity, human rights and his other constitutional right not to be deprived of his property and/or property rights without due process, is manifestly unproportionate to the offense for which Petitioner is being penalized, and, should, therefore, be substantially modified or reduced to make it fair, reasonable, just, humane and proportionate to the offense committed. (Emphasis supplied).12 Essentially, the issues for our resolution are: First, Is there substantial evidence to hold petitioner liable for dishonesty and grave

misconduct? Second, Is the power of the Ombudsman to directly remove, suspend, demote, fine or censure erring officials unconstitutional? On the first issue, petitioner claims that the factual findings of the Court of Appeals are not supported by substantial evidence, and that the Court of Appeals misappreciated the facts of the case. Petitioner contends that he cannot be liable for grave misconduct as he did not commit extortion. He insists that he was merely prodded by Adrian Cagata to receive the money. He claims that as a bonded official it was not wrong for him to receive the money and he had authority to assist the agency in the collection of money due to the agency, e.g. payment for berthing permits. Moreover, he argues that the signing of berthing permits is only ministerial on his part and he does not have influence on their approval, which is the function of the berthing committee. Consequently, he avers, it makes no sense why he would extort money in consideration of the issuance of berthing permits. We note that indeed petitioner has no hand in the approval of berthing permits. But, it is undisputed that he does decide on the berthing space to be occupied by the vessels. The berthing committee likewise consults him on technical matters. We note, too, that he claims he was only instructed to receive the money from Cagata, yet he admits that there was no pending transaction between the PPA and the DPAI. In his Comment, the Ombudsman, through the Solicitor General, counters that petitioner raised questions of facts which are not reviewable by this Court. He argued that contrary to the petitioners claim, the judgment of guilt for dishonesty and grave misconduct was based on the evidence presented. Petitioner was caught red-handed in an entrapment operation by the NBI. According to the Ombudsman, the entrapment of the petitioner met the test for a valid entrapment i.e. the conduct of the law enforcement agent was not likely to induce a normally law-abiding person, other than one who is ready and willing to commit the offense. The presumption in entrapment is that a law abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully. Entrapment is contingent on the accuseds predisposition to commit the offense charged, his state of mind, and his inclination before his exposure to government agents. Thus, entrapment is not made ineffectual by the conduct of the entrapping officers. When Estarija went to the office of Adrian Cagata to pick up the money, his doing so was indicative of his willingness to commit the crime. In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence, that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.13Further, precedents tell us that the factual findings of the Office of the Ombudsman when supported by substantial evidence are conclusive,14 and such findings made by an administrative body which has acquired expertise are accorded not only respect but even finality.15 As shown on the records, Estarija called the office of the DPAI and demanded the payment of the monthly contribution from Captain Zamora. Captain Zamora conveyed the demand to Ranada who in turn reported the matter to the NBI. Thereafter, an entrapment operation was staged. Adrian Cagata called Estarija to confirm the payment, and that the money was already available at their office. Accordingly, Estarija went to the DPAI office and collected the P5,000 marked money. Upon departure of Estarija from the office, the NBI operatives frisked him and recovered the P5,000 marked money. We are unconvinced by Estarijas explanation of his conduct. He does not deny that he went to the DPAI office to collect the money and that he actually received the money. Since there was no pending transaction between the PPA and the DPAI, he had no reason to go to the latters office to collect any money. Even if he was authorized to assist in the collection of money due the agency, he should have issued an official receipt for the transaction, but he did not do so. All told, we are convinced that there is substantial evidence to hold petitioner liable for grave misconduct. Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. And when the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are manifest, the public officer shall be liable for grave misconduct.16 We are convinced that the decision of the Ombudsman finding petitioner administratively liable for grave misconduct is based on substantial evidence. When there is substantial evidence in support of the Ombudsmans decision, that decision will not be overturned.17

The same findings sustain the conclusion that Estarija is guilty of dishonesty. The term dishonesty implies disposition to lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity, lack of honesty, probity or integrity in principle, lack of fairness and straightforwardness, disposition to defraud, deceive or betray.18 Patently, petitioner had been dishonest about accepting money from DPAI. Now, the issue pending before us is: Does the Ombudsman have the constitutional power to directly remove from government service an erring public official? At the outset, the Court of Appeals held that the constitutional question on the Ombudsmans power cannot be entertained because it was not pleaded at the earliest opportunity. The Court of Appeals said that petitioner had every opportunity to raise the same in his pleadings and during the course of the trial. Instead, it was only after the adverse decision of the Ombudsman that he was prompted to assail the power of the Ombudsman in his motion for reconsideration. The Court of Appeals held that the constitutional issue was belatedly raised in the proceedings before the Ombudsman, thus, it cannot be considered on appeal. When the issue of unconstitutionality of a legislative act is raised, the Court may exercise its power of judicial review only if the following requisites are present: (1) an actual and appropriate case and controversy; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question raised is the very lis mota of the case.19 For our purpose, only the third requisite is in question. Unequivocally, the law requires that the question of constitutionality of a statute must be raised at the earliest opportunity. In Matibag v. Benipayo,20 we held that the earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, if it was not raised in the pleadings before a competent court, it cannot be considered at the trial, and, if not considered in the trial, it cannot be considered on appeal. In Matibag, President Gloria Macapagal-Arroyo appointed, ad interim, Alfredo L. Benipayo as Chairman of the Commission on Elections (COMELEC). Ma. J. Angelina G. Matibag was the Director IV of the Education and Information Department (EID) but Benipayo reassigned her to the Law Department. Matibag sought reconsideration of her relief as Director of the EID and her reassignment to the Law Department. Benipayo denied her request for reconsideration. Consequently, Matibag appealed the denial of her request to the COMELEC en banc. In addition, Matibag filed a complaint against Benipayo before the Law Department for violation of the Civil Service Rules and election laws. During the pendency of her complaint before the Law Department, Matibag filed a petition before this Court assailing the constitutionality of the ad interim appointment of Benipayo and the other COMELEC Commissioners. We held that the constitutional issue was raised on time because it was the earliest opportunity for pleading the constitutional issue before a competent body. In the case of Umali v. Guingona, Jr.,21 the question of the constitutionality of the creation of the Presidential Commission on AntiGraft and Corruption (PCAGC) was raised in the motion for reconsideration after the Regional Trial Court of Makati rendered a decision. When appealed, the Court did not entertain the constitutional issue because it was not raised in the pleadings in the trial court. In that case, the Court did not exercise judicial review on the constitutional question because it was belatedly raised and not properly pleaded, thus, it cannot be considered by the Court on appeal. In this case, petitioner raised the issue of constitutionality of Rep. Act No. 6770 in his motion for the reconsideration of the Ombudsmans decision. Verily, the Ombudsman has no jurisdiction to entertain questions on the constitutionality of a law. Thus, when petitioner raised the issue of constitutionality of Rep. Act No. 6770 before the Court of Appeals, which is the competent court, the constitutional question was raised at the earliest opportune time. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.22 In assailing the constitutionality of Rep. Act No. 6770, petitioner contends that the Ombudsman has only the powers enumerated under Section 13,23 Article XI of the Constitution; and that such powers do not include the power to directly remove, suspend, demote, fine, or censure a government official. Its power is merely to recommend the action to the officer concerned. Moreover, petitioner, citing Tapiador v. Office of the Ombudsman,24 insists that although the Constitution provides that the Ombudsman can promulgate its own rules of procedure and exercise other powers or perform such functions or duties as may be provided by law,

Sections 15,25 21,26 2227 and 2528 of Rep. Act No. 6770 are inconsistent with Section 13, Article XI of the Constitution because the power of the Ombudsman is merely to recommend appropriate actions to the officer concerned. For the State, the Solicitor General maintains that the framers of the 1987 Constitution did not intend to spell out, restrictively, each act which the Ombudsman may or may not do, since the purpose of the Constitution is to provide simply a framework within which to build the institution. In addition, the Solicitor General avers that what petitioner invoked was merely an obiter dictum in the case of Tapiador v. Office of the Ombudsman. We find petitioners contentions without merit. Among the powers of the Ombudsman enumerated in Section 13, Article XI of the Constitution are: Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: 1. 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. 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. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Rep. Act No. 6770 provides for the functional and structural organization of the Office of the Ombudsman. In passing Rep. Act No. 6770, Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by public officers and employees to make him a more active and effective agent of the people in ensuring accountability in public office.29 Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement his own actions.30 In Ledesma v. Court of Appeals,31 we held that Rep. Act No. 6770 is consistent with the intent of the framers of the 1987 Constitution. They gave Congress the discretion to give the Ombudsman powers that are not merely persuasive in character. Thus, in addition to the power of the Ombudsman to prosecute and conduct investigations, the lawmakers intended to provide the Ombudsman with the power to punish for contempt and preventively suspend any officer under his authority pending an investigation when the case so warrants. He was likewise given disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies except members of Congress and the Judiciary.

We also held in Ledesma that the statement in Tapiador v. Office of the Ombudsman that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and cannot be cited as a doctrinal declaration of this Court.32 Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and functions. Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during the interpellation by Commissioner Rodrigo in the Constitutional Commission of 1986 on the debates relative to the power of the Ombudsman: MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that: The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except those conferred on the office of the Ombudsman created under this Constitution. The powers of the Ombudsman are enumerated in Section 12. MR. COLAYCO: They are not exclusive. MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan? MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. MR. RODRIGO: Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise such powers or perform such functions or duties as may be provided by law." So, the legislature may vest him with powers taken away from the Tanodbayan, may it not? MR. COLAYCO: Yes. MR. MONSOD: Yes. xxxx MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are "such functions or duties as may be provided by law." x x x MR. COLAYCO: Madam President, that is correct. MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO: Madam President, what I am worried about is, if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them. MR. MONSOD: I agree with the Commissioner. MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why

not leave this to the legislature? MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it created the Tanodbayan (2 record, 270-271). (emphasis supplied) xxxx MR. MONSOD (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the [H]onorable Commissioner has looked at it in too much of an absolutist position. The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed. So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (emphasis supplied).33 Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary.34 To conclude, we hold that Sections 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. WHEREFORE, the petition is DENIED. The assailed Decision dated February 12, 2003 of the Court of Appeals in CA-G.R. SP No. 62557 and Resolution dated July 28, 2003 are hereby AFFIRMED. No costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice

REYNATO S. PUNO Associate Justice

CONSUELO YNARES-SANTIAGO Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice ADOLFO S. AZCUNA Associate Justice MINITA V. CHICO-NAZARIO Associate Justice

ANTONIO T. CARPIO Asscociate Justice RENATO C. CORONA Asscociate Justice ROMEO J. CALLEJO, SR. Asscociate Justice DANTE O. TINGA Asscociate Justice CANCIO C. GARCIA Asscociate Justice

PRESBITERO J. VELASCO, JR. Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. ARTEMIO V. PANGANIBAN Chief Justice

Footnotes
1

Rollo, pp. 49-60. Penned by Associate Justice Josefina Guevara-Salonga, with Associate Justices Marina L. Buzon, and Danilo B. Pine concurring.
2

Id. at 153-165. Rollo, pp. 46-47. CA rollo, pp. 65-67. Id. at 120. Rollo, pp. 74-93. Id. at 118-128.

Id. at 153-165. Id. at 164-165. Id. at 166-182. Id. at 183-188. Id. at 17-18. Avancena v. Liwanag, A.M. No. MTJ-01-1383, July 17, 2003, 406 SCRA 300, 303. Republic Act No. 6770 (1989), Sec. 27(2). Advincula v. Dicen, G.R. No. 162403, May 16, 2005, 458 SCRA 696, 712. Bureau of Internal Revenue v. Organo, G.R. No. 149549, February 26, 2004, 424 SCRA 9, 16.

10

11

12

13

14

15

16

17

Morong Water District v. Office of the Deputy Ombudsman, G.R. No. 116754, March 17, 2000, 328 SCRA 363, 373.
18

Philippine Amusement and Gaming Corporation v. Rilloraza, G.R. No. 141141, June 25, 2001, 359 SCRA 525, 540.
19

Arceta v. Mangrobang, G.R. No. 152895, June 15, 2004, 432 SCRA 136, 140. G.R. No. 149036, April 2, 2002, 380 SCRA 49. G.R. No. 131124, March 29, 1999, 305 SCRA 533. Matibag v. Benipayo, supra note 20 at 65. Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) 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. (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

20

21

22

23

Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.
24

G.R. No. 129124, March 15, 2002, 379 SCRA 322.

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:
25

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations 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 officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, 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; (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents; (6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: Provided, That the Ombudsman under its rules and regulations may determine what cases may not be made public:Provided, further, That any publicity issued by the Ombudsman shall be balanced, fair and true;

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; (9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein; (10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided; (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein. The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties. SEC. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.
26

SEC. 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.
27

In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. SEC. 25. Penalties. (1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein shall be applied.
28

(2) In other administrative proceedings, the penalty ranging from suspension without pay for one year to dismissal with forfeiture of benefits or a fine ranging from five thousand pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.
29

Uy v. Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001, 354 SCRA 651, 660. Id. at 666. G.R. No. 161629, July 29, 2005, 465 SCRA 437. Id. at 449.

30

31

32

33

Acop v. Office of the Ombudsman, G.R. Nos. 120422 and 120428, September 27, 1995, 248 SCRA 566, 576579.
34

Supra note 26.

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EN BANC OFFICE OF THE OMBUDSMAN and DENNIS M. VILLA-IGNACIO, in his capacity as Special Prosecutor, Office of the Ombudsman, Petitioners, G.R. No. 164250 Present: DAVIDE, JR., C.J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ.

- versus -

ATTY. GIL A. VALERA and COURT OF APPEALS Promulgated: (Special First Division), Respondents. September 30, 2005 x------------------------------------ --------------x DECISION CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Office of the Ombudsman and Dennis M. Villa-Ignacio, in his capacity as the Special Prosecutor, Office of the Ombudsman, seeking the reversal of
__________________ * No part.

the Decision[1] dated June 25, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 83091. The assailed decision set aside the Order dated March 17, 2004 issued by petitioner Special Prosecutor Villa-Ignacio in OMB-C-A-03-0379-J placing respondent Atty. Gil A. Valera, Deputy Commissioner, Office of the Revenue Collection Monitoring Group, Bureau of Customs, under preventive suspension for a period of six months without pay. Factual and Procedural Antecedents Respondent Valera was appointed Deputy Commissioner of the Bureau of Customs by President Gloria Macapagal-Arroyo on July 13, 2001. He took his oath of office on August 3, 2001 and assumed his post on August 7, 2001. He is in charge of the Revenue Collection Monitoring Group. On August 20, 2003, the Office of the Ombudsman received the Sworn Complaint dated July 28, 2003 filed by then Director Eduardo S. Matillano of the Philippine National Police Criminal Investigation and Detection Group (PNPCIDG). In the said sworn complaint, Director Matillano charged respondent Valera with criminal offenses involving violation of various provisions of Republic Act (R.A.) No. 3019,[2] the Tariff and Customs Code of the Philippines (TCCP), Executive Order No. 38,[3] Executive Order No. 298[4] and R.A. No. 6713[5] as well as administrative offenses of Grave Misconduct and Serious Irregularity in the Performance of Duty. Likewise subject of the same sworn complaint was respondent Valeras brother-in-law Ariel Manongdo for violation of Section 4 of R.A. No. 3019. The sworn complaint alleged that:

On January 30, 2002, while in the performance of his official functions, Atty. Gil A. Valera had compromised the case against the Steel Asia Manufacturing Corporation in Civil Case No. 01-102504 before Branch 39, RTC, Manila without proper authority from the Commissioner of the Bureau of Customs in violation of Section 2316 TCCP (Authority of Commission to make Compromise) and without the approval of the President, in violation of Executive Order No. 156 and Executive Order No. 38. Such illegal acts of Atty. Gil A. Valera, indeed, caused undue injury to the government by having deprived the government of its right to collect the legal interest, surcharges, litigation expenses and damages and gave the Steel Asia unwarranted benefits in the total uncollected amount ofFOURTEEN MILLION SEVEN HUNDRED SIXTY-TWO THOUSAND FOUR HUNDRED SIXTY-SEVEN PESOS AND SEVENTY CENTAVOS (P14,762,467.70), which is violative of Sections 3(e) and (g) respectively of RA 3019.

Further investigation disclosed that Atty. Gil A. Valera while being a Bureau of Customs official directly and indirectly had financial or pecuniary interest in the CACTUS CARGOES SYSTEMS a brokerage whose line of business or transaction, in connection with which, he intervenes or takes part in his official capacity by way of causing the employment of his brother-in-law, Ariel Manongdo, thus, violating Section 3(h) of RA 3019 and RA 6713 and Section 4, RA 3019 as against Ariel Manongdo.

Finally, investigation also disclosed that on April 21, 2002 Atty. Gil A. Valera traveled to Hongkong with his family without proper authority from the Office of the President in violation of Executive Order No. 298 (foreign travel of government personnel) dated May 19, 1995, thus, he committed an administrative offense of Grave Misconduct.[6]

The sworn complaint prayed that:

1) Appropriate preliminary investigation be conducted with the end-in-view of filing the necessary information before the Sandiganbayan;

2)

Pending investigation, Atty. Gil A. Valera be indefinitely suspended from public office in order to prevent him from further committing acts of irregularity in public office;

3) This Group be furnished a copy of the Resolution of this (sic) cases.[7]

At about the same time as the filing of the complaint against respondent Valera, Director Matillano also filed charges against other officials of the Department of Public Works and Highways (DPWH) and Bureau of Customs. The Philippine Daily Inquirer featured a news article on them with the title More govt execs flunk lifestyle check.[8] Prior to Director Matillanos sworn complaint, criminal and administrative charges were also filed with the Office of the Ombudsman by Atty. Adolfo Casareo against respondent Valera. The complaint of Atty. Casareo contained similar allegations as those in the complaint of Director Matillano in that respondent Valera, without being duly authorized by the Commissioner of Customs, entered into a compromise agreement with Steel Asia Manufacturing Corp. in Civil Case No. 01-102504 to the prejudice of the government.

The cases against respondent Valera before the Ombudsman were docketed as follows:

OMB-C-C-02-0568-I (For: Violation of Sec. 3(e), R.A. 3019, as amended, and Section 3604 of the Tariff and Customs Code) entitled Alfredo Casareo v. Gil A. Valera and Antonio M. Lorenzana OMB-C-C-03-0547-J (For: Violation of Sec. 3(e), (g) and (h) of R.A. 3019, as amended) entitled PNP-CIDG v. Gil A. Valera and Ariel N. Manongdo OMB-C-A-0379-J (For: Grave Misconduct and Serious Irregularity in the Performance of Duty) entitled PNP-CIDG v. Gil A. Valera

On November 12, 2003, Ombudsman Simeon V. Marcelo issued a Memorandum[9] inhibiting himself from the foregoing criminal cases as well as the related administrative case and directing petitioner Special Prosecutor VillaIgnacio to act in his (the Ombudsmans) stead and place. The said memorandum reads:
MEMORANDUM TO : HON. DENNIS M. VILLA-IGNACIO Special Prosecutor Office of the Special Prosecutor OMB-C-C-02-0568-I entitled Alfredo Casareo vs. Gil Valera, et al., CPL No. C-03-1829 entitled PNP-CIDG vs. Atty. Gil Valera and Ariel Manongdo and OMB-C-A-0379-J entitled PNPCIDG vs. Atty. Gil Valera

SUBJECT

DATE : November 12, 2003 __________________________________________________________ __ The undersigned is inhibiting himself in the above-captioned cases. Please act in his stead and place.

(Sgd.) SIMEON V. MARCELO Tanodbayan (Ombudsman)

On March 17, 2004, pursuant to the above memorandum, petitioner Special Prosecutor Villa-Ignacio, in the administrative case OMB-C-A-0379-J, issued the Order placing respondent Valera under preventive suspension for six months without pay. In the said order, petitioner Special Prosecutor Villa-Ignacio found that respondent Valera entered into the compromise agreement with Steel Asia Manufacturing Corp. in Civil Case No. 01-102504 without being duly authorized to do so by the Commissioner of Customs and without the approval of the Secretary of Finance in violation of Section 2316[10] of the TCCP. As earlier mentioned, Civil Case No. 01-102504 was a collection suit filed by the Republic of the Philippines represented by the Bureau of Customs against Steel Asia Manufacturing Corp. for payment of duties and taxes amounting to P37,195,859.00. The said amount was allegedly paid by Steel Asia

Manufacturing Corp. with spurious tax credit certificates. In addition to the principal amount, the government likewise demanded payment of penalty charges (25% thereof), legal interest from date of demand, litigation expenses and exemplary damages. Petitioner Special Prosecutor Villa-Ignacio made the finding that by entering into the said compromise agreement whereby Steel Asia Manufacturing Corp. shall pay the overdue taxes and duties in thirty (30) monthly installments of P1,239,862 from January 2002 to June 2004, respondent Valera may have made concessions that may be deemed highly prejudicial to the government, i.e., waiver of the legal

interest from the amount demanded, penalty charges imposed by law, litigation expenses and exemplary damages. Further, by the terms of the compromise agreement, respondent Valera had virtually exonerated Steel Asia Manufacturing Corp. of its fraudulent acts of using spurious tax credit certificates. Petitioner Special Prosecutor Villa-Ignacio concluded the Order dated March 17, 2004 by stating that [c]onsidering the strong evidence of guilt of respo ndent Deputy Commissioner Valera and the fact that the charges against him consist of Grave Misconduct and/or Dishonesty which may warrant his removal from the service, it is hereby declared that the requirements under Section 24 of R.A. No. 6770, in relation to Sec. 9, Rule III of Administrative Order No. 7, on the Rules of Procedure of the Office of the Ombudsman, as amended, are present, and placing respondent Deputy Commissioner Valera under preventive suspension pending administrative investigation on the matter for a period of six (6) months without pay is clearly justified.[11] The decretal portion of the March 17, 2004 Order reads:
WHEREFORE, pursuant to Sec. 24 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, in relation to Sec. 9, Rule III of Administrative Order No. 7, respondent ATTY. GIL A. VALERA, Deputy Commissioner, Office of the Collection and Monitoring Group, Bureau of Customs, is hereby placed under preventive suspension for SIX (6) MONTHS WITHOUT PAY.

Pursuant to Sec. 27(1) of R.A. No. 6770, this Order of Preventive Suspension is deemed immediately effective and executory.

The Honorable Commissioner Antonio M. Bernard, Bureau of Customs, is hereby directed to implement the Order immediately upon receipt hereof and to promptly inform this Office of compliance herewith.

Respondent Atty. Gil A. Valera, Deputy Commissioner, Office of the Collection and Monitoring Group, Bureau of Customs, is hereby ordered to file his counter-affidavit and other controverting evidence to the complaint, copy of which together with the annexes, is hereto attached, within ten (10) days from receipt hereof in three (3) legible copies addressed to the Central Records Division, Office of the Ombudsman, Ombudsman Building, Agham Road, Government Center, North Triangle, Diliman, Quezon City, furnishing the complainant with a copy of said counter-affidavit.

Further, respondent is also ordered to submit proof of service of his counteraffidavit to the complaint, who may file its reply thereto within a period of ten (10) days from receipt of the same.

Failure to comply as herein directed within the period prescribed by the rules shall be deemed as a waiver of the right to submit the partys counter-affidavit or reply, nonetheless, despite said non-filing, the investigation shall proceed pursuant to existing rules.

This Order is being issued by the undersigned in view of the inhibition of the Honorable Tanodbayan Simeon Marcelo from his case as contained in a Memorandum dated 12 November 2003.

SO ORDERED.[12]

Respondent Valera sought reconsideration of the said Order claiming denial of due process. He averred that he had already submitted his counter-affidavit refuting the charges leveled against him by the PNP-CIDG way back on November 6, 2003. He pointed out that Director Matillanos sworn complaint was filed on August 20, 2003 and it was only two months later or on October 22, 2003 that the Ombudsman found enough basis to proceed with the administrative investigation of the case by requiring respondent Valera to file his counter-affidavit. He did so

on November 6, 2003. During the said period of two months, the Preliminary Investigation and Administrative Adjudication Bureau-A (PIAB-A) of the Office of the Ombudsman did not find enough bases to preventively suspend him. According to respondent Valera, he was at a loss as to why it was only then (March 17, 2004) that he was being placed under preventive suspension.

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G.R. No. 102781. April 22, 1993. BONIFACIO SANZ MACEDA, Presiding Judge, Branch 12, Regional Trial Court, Antique, petitioner, vs. HON. OMBUDSMAN CONRADO M. VASQUEZ AND ATTY. NAPOLEON A. ABIERA, respondents. Bonifacio Sanz Maceda for and in his own behalf. Public Attorney's Office for private respondent. SYLLABUS 1. REMEDIAL LAW; JURISDICTION; OFFICE OF THE OMBUDSMAN HAS JURISDICTION TO INVESTIGATE OFFENSE COMMITTED BY JUDGE WHETHER OR NOT OFFENSE RELATES TO OFFICIAL DUTIES; REASON. Petitioner also contends that the Ombudsman has no jurisdiction over said cases despite this Court's ruling in Orap vs. Sandiganbayan, since the offense charged arose from the judge's performance of his official duties, which is under the control and supervision of the Supreme Court . . . The Court disagrees with the first part of petitioner's basic argument. There is nothing in the decision in Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A judge who falsifies his certificate of

service is administratively liable to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State under the Revised Penal Code for his felonious act. 2. ID.; ID.; ID.; JURISDICTION TO INVESTIGATE OFFENSE RELATED TO OFFICIAL DUTIES SUBJECT TO PRIOR ADMINISTRATIVE ACTION TAKEN AGAINST JUDGE BY SUPREME COURT; REASON. However, We agree with petitioner that in the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. 3. ID.; ID.; ID.; ID.; PROCEDURE TO BE OBSERVED BY OMBUDSMAN REGARDING COMPLAINT AGAINST JUDGE OR OTHER COURT EMPLOYEE; PURPOSE. Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination . . . In fine, where a criminal complaint against a judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said judge or court employee had acted within the scope of their administrative duties. 4. ID.; ID.; ID.; ID.; OMBUDSMAN CANNOT SUBPOENA SUPREME COURT AND ITS PERSONNEL; REASON. The Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-complaint. The rationale for the foregoing pronouncement is evident in this case. Administratively, the question before Us is this: should a judge, having been granted by this Court an extension of time to decide cases before him, report these cases in his certificate of service? As this question had not yet been raised with, much less resolved by, this Court, how could the Ombudsman resolve the present criminal complaint that requires the resolution of said question? DECISION NOCON, J p: The issue in this petition for certiorari with prayer for preliminary mandatory injunction and/or restraining order is whether the Office of the Ombudsman could entertain a criminal complaint for the alleged falsification of a judge's certification submitted to the Supreme Court, and assuming that it can, whether a referral should be made first to the Supreme Court. Petitioner Bonifacio Sanz Maceda, Presiding Judge of Branch 12 of the Regional Trial Court of Antique, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated September 18, 1991 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and (2) the Order dated November 22, 1951 denying petitioner's motion for reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences. In his affidavit-complaint dated April 18, 1991 filed before the Office of the Ombudsman, respondent Napoleon A. Abiera of the Public Attorney's Office alleged that petitioner had falsified his Certificate of Service 1 dated February 6, 1989, by certifying "that all civil and criminal cases which have been submitted for decision or determination for a period of 90 days have been determined and decided on or before January 31, 1998," when in truth and in fact, petitioner knew that no decision had been rendered in five (5) civil and ten (10) criminal cases that have been submitted for decision. Respondent Abiera further alleged that petitioner similarly falsified his certificates of service for the months of February, April, May, June, July and August, all in 1989; and the months beginning January up to September 1990, or for a total of seventeen (17) months. On the other hand, petitioner contends that he had been granted by this Court an extension of ninety (90) days to decide the aforementioned cases. Petitioner also contends that the Ombudsman has no jurisdiction over said case despite this Court's ruling in Orap vs. Sandiganbayan, 2 since the offense charged arose from the judge's performance of his official duties, which is under the control and supervision of the Supreme Court. Furthermore, the investigation of the Ombudsman constitutes an encroachment into the Supreme Court's constitutional duty of supervision over all inferior courts.

The Court disagrees with the first Part of petitioner's basic argument. There is nothing in the decision in Orap that would restrict it only to offenses committed by a judge unrelated to his official duties. A judge who falsifies his certificate of service is administratively liable to the Supreme Court for serious misconduct and inefficiency under Section 1, Rule 140 of the Rules of Court, and criminally liable to the State under the Revised Penal Code for his felonious act. However, We agree with petitioner that in the absence of any administrative action taken against him by this Court with regard to his certificates of service, the investigation being conducted by the Ombudsman encroaches into the Court's power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers. Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is only the Supreme Court that can oversee the judges' and court personnel's compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. The Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, 3 for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary. Thus, the Ombudsman should first refer the matter of petitioner's certificates of service to this Court for determination of whether said certificates reflected the true status of his pending case load, as the Court has the necessary records to make such a determination. The Ombudsman cannot compel this Court, as one of the three branches of government, to submit its records, or to allow its personnel to testify on this matter, as suggested by public respondent Abiera in his affidavit-complaint. 4 The rationale for the foregoing pronouncement is evident in this case. Administratively. the question before Us is this: should a judge, having been granted by this Court an extension of time to decide cases before him, report these cases in his certificate of service? As this question had not yet been raised with, much less resolved by, this Court. how could the Ombudsman resolve the present criminal complaint that requires the resolution of said question? In fine, where a criminal complaint against a Judge or other court employee arises from their administrative duties, the Ombudsman must defer action on said complaint and refer the same to this Court for determination whether said Judge or court employee had acted within the scope of their administrative duties. WHEREFORE, the instant petition is hereby GRANTED. The Ombudsman is hereby directed to dismiss the complaint filed by public respondent Atty. Napoleon A. Abiera and to refer the same to this Court for appropriate action. SO ORDERED. Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Bellosillo, Melo and Quiason, JJ ., concur. Footnotes 1. New Judicial Form No. 86, Revised 1986. 2. L-50508-11, 139 SCRA 252 (1985). 3. The Order of September 18, 1991, in denying petitioner's ex-parte motion to refer the case to the Supreme Court, cited Article XI, section 13 (1) and (2), which provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on compliant be 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. (2) Direct, upon complaint or at it 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. 4. Rollo, p. 19.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 132177 July 19, 2001

JUDGE JOSE F. CAOIBES, JR., petitioner, vs. THE HONORABLE OMBUDSMAN and JUDGE FLORENTINO M. ALUMBRES, respondents. BUENA, J.: Petitioner Jose F. Caoibes, Jr., Presiding Judge of Branch 253 of the Regional Trial Court of Las Pias City, seeks the review of the following orders of the Office of the Ombudsman: (1) the Order dated August 22, 1997 denying the ex-parte motion to refer to the Supreme Court filed by petitioner; and (2) the Order dated December 22, 1997 denying petitioners motion for reconsideration and directing petitioner to file his counter-affidavit and other controverting evidences. On May 23, 1997, respondent Florentino M. Alumbres, Presiding Judge of Branch 255 of the Regional Trial Court of Las Pinas City, filed before the Office of the Ombudsman, a Criminal Complaint1 for physical injuries, malicious mischief for the destruction of complainants eyeglasses, and assault upon a person in authority. Respondent alleged therein that on May 20, 1997, at the hallway on the third floor of the Hall of Justice, Las Pinas City, he requested petitioner to return the executive table he borrowed from respondent; that petitioner did not answer so respondent reiterated his request but before he could finish talking, petitioner blurted "Tarantado ito ah," and boxed him at his right eyebrow and left lower jaw so that the right lens of his eyeglasses was thrown away, rendering his eyeglasses unserviceable; and that respondent had the incident blottered with the Las Pias Police

Station. He prayed that criminal charges be filed before the Sandiganbayan against the petitioner. On June 13, 1997, respondent Judge lodged another Complaint2 against petitioner, this time and administrative case with the Supreme Court, docketed as Adm. Case No. 97-387-RTJ, praying for the dismissal of petitioner from the judiciary on the ground of grave misconduct or conduct unbecoming a judicial officer. Said complaint is based on the same facts as those in the complaint filed earlier with the office of the Ombudsman. In the Order3 dated June 25, 1997, the Office of the Ombudsman required petitioner to file a counter-affidavit within ten (10) days from receipt thereof. Instead of filing a counter-affidavit, petitioner filed on July 7, 1997 and "Ex-Parte Motion for Referral to the Honorable Supreme Court,"4 praying that the Office of the Ombudsman hold its investigation of Case No. OMB-0-97-0903 in abeyance, and refer the same to the Supreme Court which, through the Office of the Court Administrator, is already investigating what transpired on May 20, 1997. Petitioner contended that the Supreme Court, not the Office of the Ombudsman, has the authority to make a preliminary determination of the respective culpability of petitioner and respondent Judge who, both being members of the bench, are under its exclusive supervision and control. On August 22, 197, the Office of the Ombudsman issued an Order5 denying the motion for referral to the Supreme Court. Invoking Section 15 (1) of Republic Act No. 6770, the Office of the Ombudsman held that it is within its jurisdiction to investigate the criminal charges of respondent Judge against petitioner. Petitioner moved for reconsideration6 of the foregoing order, maintaining that the Office of the Ombudsman should either refer Case No. OMB-0-97-0903 to the Supreme Court for preliminary evaluation, or await the latters resolution of Adm. Case No. 97387-RTJ which involves the same parties and subject matter. Otherwise, petitioner argues, the absurd situation may result wherein the Office of the Ombudsman files criminal charges against petitioner who, on the other hand, is declared without fault by the Supreme Court. In the Order7 dated December 22, 1997, the Office of the Ombudsman denied the motion for reconsideration and required petitioner to submit a counter-affidavit within an inextendible period of five (5) days from receipt thereof. Hence, petitioner filed this petition for certiorari, asking for the reversal of the assailed Orders dated August 22, 1997 and December 22, 1997 of the Office of the Ombudsman and the issuance of a writ of injunction or temporary restraining order, directing the Office of the Ombudsman to refrain from taking further action in the implementation of the challenged orders. The issue in this case is whether or not the Office of the Ombudsman should defer action on case No. OMB-0-97-0903 pending resolution of Adm. Case No. 97-387-RTJ. The issue is not novel. In Maceda vs. Vasquez,8 this Court resolved in the affirmative the issue of whether or not the Ombudsman must defer action on a criminal complaint against a judge, or a court employee where the same arises from their administrative duties, and refer the same to this Court for determination whether said judge or court employee had acted within the scope of their administrative duties. Invoking Section 15 of R.A. 6770, the Office of the Ombudsman refuses to refrain from taking cognizance of Case NO. OMB-097-0903 in favor of this Court on the ground that, allegedly, the accusations therein against petitioner constitute simple criminal charges falling within the parameters of its constitutional power and duty to investigate and prosecute any act or omission of any public officer or employee which appears to be illegal, unjust, improper or inefficient. Section 15 (1) of R.A. 6770 grants, among others, the following powers and duties to the Office of the Ombudsman: "(1) Investigate and prosecute on its own, or on complaint by any person, any act or omission of any public officer or employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may takeover, at any stage, from any investigatory agency of Government, the investigation of such

cases; "(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations 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 officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure or prosecution, and ensure compliance therewith, or enforce its disciplinary authority as provided in Section 21 of this Act..." The foregoing provisions supply the legal basis for the Ombudsman in maintaining its jurisdiction over the charges of physical injuries, malicious mischief and assault upon a person in authority filed by respondent Judge against petitioner. This conclusion seems to be reinforced by Section 16 of R.A. 6770 which states that the powers of the Office of the Ombudsman apply to all kinds of malfeasance, misfeasance and nonfeasance committed by public officers and employees during their tenure or office. The Office of the Solicitor General in its Manifestations, in Lieu of Comment, correctly opined and we quote: "xxx the grant of the aforequoted powers to the Office of the Ombudsman is not tantamount to giving it exclusive authority thereon. In fact, Section 15 (1) of R.A. 6770, which is relied upon by the Office of the Ombudsman in its assailed order, provides that it has primary, not exclusive, jurisdiction over graft and corruption cases and felonies committed by public officers in relation to their office. Moreover, it was held in Sanchez vs. Demetriou, 227 SCRA 627 [1993], that the Ombudsmans power under Section 15 (1) of R.A. 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged."9 It appears that the present case involves two members of the judiciary who were entangled in a fight within court premises over a piece of office furniture. Under Section 6, Article VIII of the Constitution, it is the Supreme Court which is vested with exclusive administrative supervision over all courts and its personnel. Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a criminal complaint against a judge, or court employee, involves an administrative matter. The Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred to the Supreme Court for determination as to whether and administrative aspect is involved therein. This rule should hold true regardless of whether an administrative case based on the act subject of the complaint before the Ombudsman is already pending with the Court. For, aside from the fact that the Ombudsman would not know of this matter unless he is informed of it, he should give due respect for and recognition of the administrative authority of the Court, because in determining whether an administrative matter is involved, the Court passes upon not only administrative liabilities but also other administrative concerns, as is clearly conveyed in the case of Maceda vs. Vasquez.10 The Ombudsman cannot dictate to, and bind the Court, to its findings that a case before it does or does not have administrative implications. To do so is to deprive the Court of the exercise of its administrative prerogatives and to arrogate unto itself a power not constitutionally sanctioned. This is a dangerous policy which impinges, as it does, on judicial independence. Maceda is emphatic that by virtue of its constitutional power of administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk, it is only the Supreme Court that can oversee the judges and court personnels compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. WHEREFORE, the petition for certiorari is hereby GRANTED. The Ombudsman is hereby directed to dismiss the complaint filed by respondent Judge Florentino M. Alumbres and to refer the same to this Court for appropriate action.
1w phi 1.nt

SO ORDERED.

Bellosillo, Mendoza, and De Leon, Jr., JJ., concur. Quisumbing, J., on official business.

Footnotes
1

Annex "A," Petition, Rollo, pp. 14-15. Rollo, pp. 28-30. Original Records, p. 12. Annex "B," Petition, Rollo, pp. 21-22. Annex "C," Petition, Rollo, pp. 23-24. Annex "D," Petition, Rollo, pp. 25-27. Annex "E," Petition, Rollo, pp. 39-40. 221 SCRA 464 [1993]. Manifestation in Lieu of Comment, p. 8, Rollo, p. 64. Supra.

10

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Republic of the Philippines SUPREME COURT Manila EN BANC

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

MENDOZA, J.: This case requires us to determine the extent to which the Ombudsman may call upon government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as ordered by the Ombudsman, an

administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime was filed against her and the Provincial Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the Ombudsman. In the meantime the two were placed under preventive suspension. This is a petition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman with respect to the two proceedings. The background of this case is as follows: On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio Ilustrisimo. 1 The cases were filed with the Office of the Ombudsman-Visayas where they were docketed as OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively. The complaint was assigned to a graft investigation officer who, after an investigation, found no prima facieevidence and accordingly recommended the dismissal of the complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez, disapproved the recommendation and instead directed that Mayor Ilustrisimo be charged with attempted rape in the Regional Trial Court. 2 Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao City, . . ." 3 The case was eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa. It appears that petitioner conducted a preliminary investigation on the basis of which she found that only acts of lasciviousness had been committed. 4 With the approval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial Court of Santa Fe. 5 In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. 6 As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to show cause why they should not be punished for contempt for "refusing and failing to obey the lawful directives" of the Office of the Ombudsman. 7 For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor were given until August 3, 1994 within which to submit their answer. 8 An answer 9 was timely filed by them and hearings were thereupon conducted. It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One was an administrative complaint for violation of Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) 10and another one was a criminal complaint for violation of 3(e) of Republic Act No. 3019 and Art. 208 of the Revised Penal Code. 11 The complaints were based on the alleged refusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of six (6) months, 12 pursuant to Rule III, 9 of the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in relation to 24 of R.A. No. 6770. The

order was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial Prosecutor of Cebu. On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders 13 in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter affidavits and controverting evidence. On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari and prohibition to set aside the following orders of the Office of the Ombudsman and Department of Justice: (a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica and related orders, referring to the Office of the Cebu Provincial Prosecutor the records of OMB-VIS-CRIM93-0140, entitled Jessica V. Dayon vs. Mayor Rogelio Ilustrisimo, "for filing of the appropriate action (for Attempted Rape) with the Regional Trial Court of Danao City. (b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in writing within three (3) days from receipt why they should not be punished for indirect Contempt of the Office of the Ombudsman "for refusing and failing . . . to file the appropriate Information for Attempted Rape against Mayor Rogelio Ilustrisimo. (c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J. Liwag, ordering the Office of the Provincial Prosecutor to comply with the directive of the Office of the Ombudsman that a charge for attempted rape be filed against respondent Mayor Ilustrisimo in recognition of the authority of said Office. (d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved by Ombudsman Conrado Vasquez, and related orders in OMB-VIS-(ADM)-94-0189, entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension for a period of six (6) months, without pay. (e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to implement the letter dated August 15, 1994 of Ombudsman Vasquez, together with the Order dated August 15, 1994, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension. (f) Department Order No. 259 issued by Acting Secretary Liwag on August 18, 1994, designating Assistant Regional State Prosecutor Concepcion Acting Provincial Prosecutor of Cebu. Petitioner raises a number of issues which will be discussed not necessarily in the order they are stated in the petition. I. The pivotal question in this case is whether the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo. Lastimosa claims that the Office of the Ombudsman and the prosecutor's office have concurrent authority to investigate public officers or employees and that when the former first took cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the latter. It then became the duty of the Ombudsman's office, according to petitioner, to finish the preliminary investigation by filing the information in court instead of asking the Office of the Provincial

Prosecutor to do so. Petitioner contends that the preparation and filing of the information were part and parcel of the preliminary investigation assumed by the Office of the Ombudsman and the filing of information in court could not be delegated by it to the Office of the Provincial Prosecutor. Petitioner defends her actuations in conducting a preliminary investigation as having been made necessary by the insistence of the Ombudsman to delegate the filing of the case to her office. In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office. For this reason it is argued that the Office of the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders and to cite them for indirect contempt for such refusal. Petitioner's contention has no merit. The office of the Ombudsman has the power to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient." 14 This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected with, or arise from, the performance of his official duty 15 It is enough that the act or omission was committed by a public official. Hence, the crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute. In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance. 31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides: Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate of deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him as herein provided shall be under his supervision and control. (Emphasis added) It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an information for attempted rape against Mayor Rogelio Ilustrismo. It does not matter that the Office of the Provincial Prosecutor had already conducted the preliminary investigation and all that remained to be done was for the Office of the Provincial Prosecutor to file the corresponding case in court. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. This is because under 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) decision. 16 Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman. II. The records show that despite repeated orders of the Ombudsman, petitioner refused to file an information for attempted rape against Mayor Ilustrisimo, insisting that after investigating the complaint in the case she found that he had committed only acts of lasciviousness. 15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein." There is no merit in the argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an administrative, rather than judicial, proceeding before the Office of

the Ombudsman. As petitioner herself says in another context, the preliminary investigation of a case, of which the filing of an information is a part, is quasi judicial in character. Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance, disobedience or resistance of a lawful process, order or command of the Ombudsman thus making her liable for indirect contempt under Rule 71, 3 of the Rules of Court is for respondents to determine after appropriate hearing. At this point it is important only to note the existence of the contempt power of the Ombudsman as a means of enforcing his lawful orders. III. Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the Ombudsman's power to place her in the meantime under preventive suspension. The pertinent provisions of the Ombudsman Act of 1989 state: 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. 22. Preventive Suspension. The Ombudsman or his Deputy may suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. A. Petitioner contends that her suspension is invalid because the order was issued without giving her and Provincial Prosecutor Kintanar the opportunity to refute the charges against them and because, at any rate, the evidence against them is not strong as required by 24. The contention is without merit. Prior notice and hearing is a not required, such suspension not being a penalty but only a preliminary step in an administrative investigation. As held in Nera v. Garcia: 17 In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the opportunity to prove his innocence. (Emphasis added). It is true that, under 24 of the Ombudsman's Act, to justify the preventive suspension of a public official, the

evidence against him should be strong, and any of the following circumstances is present: (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. As held in Buenaseda v. Flavier, 18 however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case:
The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. . . . 19

In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of petitioner and Provincial Prosecutor Kintanar on the following grounds: A careful assessment of the facts and circumstances of the herein cases and the records pertaining thereto against respondents [Provincial Prosecutor Kintanar and herein petitioner] clearly leads to the conclusion that the evidence on record of guilt is strong and the charges involved offenses of grave misconduct, gross neglect of duty and dishonesty which will warrant respondents [Provincial Prosecutor Kintanar and herein petitioner] removal from the service. Moreover, considering the unabashed attitude of respondents in openly announcing various false pretexts and alibis to justify their stubborn disregard for the lawful directives of the Ombudsman as their official position in their pleadings filed in OMB-VIS-0-94-0478 and in print and broadcast media, the probability is strong that public service more particularly in the prosecution of cases referred by the Office of the Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and prejudiced and the records of said cases even be tampered with if respondents [Provincial Prosecutor Kintanar and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's Office during the pendency of these proceedings. Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts justifying the preventive suspension of petitioner and the Provincial Prosecutor since the acts alleged in the administrative complaint against them were done in the course of their official transaction with the Office of the Ombudsman. The administrative complaint against petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent Deputy Ombudsman did not have to go far to verify the matters alleged in determine whether the evidence of guilt of petitioner and Provincial Prosecutor was strong for the purpose of placing them under preventive suspension. Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be hampered. 20 In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. B.

Petitioner questions her preventive suspension for six (6) months without pay and contends that it should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in error. She is referring to cases where the law is either silent or expressly limits the period of suspension to ninety (90) days. With respect to the first situation, we ruled in the case of Gonzaga v. Sandiganbayan 21 that To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows: 1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuances thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act. 2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall both be counted in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the continuance of his suspension shall be for a reasonable time as the circumstances of the case may warrant. On the other hand, petitioner and the Provincial Prosecutor were placed under preventive suspension pursuant to 24 of the Ombudsman Act which expressly provides that "the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay." Their preventive suspension for six (6) months without pay is thus according to law. C. Nor is there merit in petitioner's claim that the contempt charge should first be resolved before any action in the administrative complaint case can be taken because the contempt case involves a prejudicial question. There is simply no basis for this contention. The two cases arose out of the same act or omission and may proceed hand in hand, or one can be heard before the other. Whatever order is followed will not really matter. WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Francisco, JJ., concur. Romero, J., is on leave.

Separate Opinions

REGALADO, J., concurring: I concur and welcome this opportunity to make some observations on the matter of the power of the Ombudsman to preventively suspend petitioner for six (6) months without pay, and which petitioner assails in the case at bar. It would, of course, be a handy expedient to just refer petitioner to the provisions of Section 24 of Republic Act No. 6770 which expressly grants that authority to respondent Ombudsman. Conveniently, we would merely need to remind petitioner that for this Court to limit such authority to suspend to a lesser period would, in effect, be constitutive of judicial legislation. But I will go a little further by essaying the rationale for such conferment of a more extended authority to the Ombudsman on the issue of preventive suspension,vis-a-vis the provisions on preventive suspension in other enactments, and thereby dispel lingering doubts or misgivings thereon. It is true that the Civil Service Decree allows a maximum preventive suspension of only ninety (90) days. 1However, a comparison of the grounds therefor 2 with those provided for in the Ombudsman Act 3 will readily show that there is in the latter the added requirement that the evidence of guilt is strong and the additional ground that "the respondent's continued stay in office may prejudice the case filed against him." Further, in the aforecited Section 41 of the Civil Service Decree, preventive suspension may be imposed on the mere simple showing that the charge involves dishonesty, oppression or grave misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service: whereas in Section 24 of Republic Act No. 6770, it is required thatsuch charges must be supported by strong evidence of guilt in order to justify preventive suspension. On the other hand, the still shorter period of sixty (60) days prescribed in the Local Government Code of 1991 4 as the maximum period for the preventive suspension of local elective officials is justifiable and deemed sufficient not only because the respondent involved is elected by the people, but more precisely because such preventive suspension may only be ordered "after the issues are joined." That means that before the order of suspension is issued, all the preliminary requirements and exchanges had been completed and the respondent had already filed his counter-affidavits to the affidavits of the complainant and the latter's witnesses. At that stage, the case is ready for resolution if the parties would not opt for a formal hearing. The preparatory procedures before such stage is reached undoubtedly necessitate and consume a lot of time. Yet, it will be noted that those preliminary steps are included in the case of the period of preventive suspension ordered even before issues are joined, as in preventive suspension by the Ombudsman pursuant to the aforecited Section 24 of Republic Act No. 6770. They conceivably include the service of thesubpoena or order for the respondent to file his counter-affidavits, the usual resort to motions for extension of time to comply with the same, the improvident recourse to the Supreme Court to suspend, annul or otherwise delay the proceedings, as well as the filing and resolution of motions to dismiss or for a bill of particulars or for the inhibition of the investigating officer, the denial of which motions is often also brought all over again to this Court on petitions for certiorari. An illustration of how the proceedings can be delayed by such procedural maneuvers is afforded by the case of Buenaseda, et al. vs. Flavier, et al., 5 the decision in which was ultimately promulgated by this Court on September 21, 1993. The petitioners therein questioned through repeated resourceful submissions the order of preventive suspension issued by the Ombudsman on January 7, 1992 and it took more than twenty (20) months before said order could eventually be reviewed on the merits and finally sustained by the Supreme Court. That is not all. Even after the formal hearing is scheduled, respondents can easily resort to the same dilatory tactics usually employed by an accused in regular court trials in criminal actions. Such stratagems can obviously

result in the continued occupancy by the respondent of his office and, in the language of the law, could "prejudice the case filed against him." The longer period of six (6) months for preventive suspension under Republic Act No. 6770 was evidently induced by a desire to more meaningfully emphasize and implement the authority of the Office of the Ombudsman over public officials and employees in order to serve as a deterrent against illegal, unjust, improper and inefficient conduct on their part. As the agency mandated by the Constitution to undertake such task, it was invested with the corresponding authority to enable it to perform its mission. This intention is easily deducible from the pertinent constitutional provisions creating said office and from the express provisions of Republic Act No. 6770. Significantly, it is the only body authorized to investigate even officials removable by impeachment. 6 For purposes of the present case, therefore, and specifically on the issue subject of this concurring opinion, it would be advisable to recall what we said in Buenaseda, to wit: The purpose of RA No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objective of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided. A statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for Department of which it was created (Cf. Department of Public Utilities v. Arkansas Louisiana Gas, Co., 200 Ark. 983, 142 S.W. [2d] 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E. 438 [1934]). On the foregoing considerations, which are much a matter of judicial and legislative experience, it is puerile for petitioner to impugn the expanded authority of preventive suspension as now granted by law to the Ombudsman. In fact, in certain situations, the maximum allowable period may even prove too short to subserve the intended purpose of the law.

Separate Opinions REGALADO, J., concurring: I concur and welcome this opportunity to make some observations on the matter of the power of the Ombudsman to preventively suspend petitioner for six (6) months without pay, and which petitioner assails in the case at bar. It would, of course, be a handy expedient to just refer petitioner to the provisions of Section 24 of Republic Act No. 6770 which expressly grants that authority to respondent Ombudsman. Conveniently, we would merely need to remind petitioner that for this Court to limit such authority to suspend to a lesser period would, in effect, be constitutive of judicial legislation. But I will go a little further by essaying the rationale for such conferment of a more extended authority to the Ombudsman on the issue of preventive suspension,vis-a-vis the provisions on preventive suspension in other enactments, and thereby dispel lingering doubts or misgivings thereon. It is true that the Civil Service Decree allows a maximum preventive suspension of only ninety (90) days. 1However, a comparison of the grounds therefor 2 with those provided for in the Ombudsman Act 3 will readily show that there is in the latter the added requirement that the evidence of guilt is strong and the additional ground that "the respondent's continued stay in office may prejudice the case filed against him." Further, in the aforecited Section 41 of the Civil Service Decree, preventive suspension may be imposed on the mere simple

showing that the charge involves dishonesty, oppression or grave misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service: whereas in Section 24 of Republic Act No. 6770, it is required thatsuch charges must be supported by strong evidence of guilt in order to justify preventive suspension. On the other hand, the still shorter period of sixty (60) days prescribed in the Local Government Code of 1991 4 as the maximum period for the preventive suspension of local elective officials is justifiable and deemed sufficient not only because the respondent involved is elected by the people, but more precisely because such preventive suspension may only be ordered "after the issues are joined." That means that before the order of suspension is issued, all the preliminary requirements and exchanges had been completed and the respondent had already filed his counter-affidavits to the affidavits of the complainant and the latter's witnesses. At that stage, the case is ready for resolution if the parties would not opt for a formal hearing. The preparatory procedures before such stage is reached undoubtedly necessitate and consume a lot of time. Yet, it will be noted that those preliminary steps are included in the case of the period of preventive suspension ordered even before issues are joined, as in preventive suspension by the Ombudsman pursuant to the aforecited Section 24 of Republic Act No. 6770. They conceivably include the service of thesubpoena or order for the respondent to file his counter-affidavits, the usual resort to motions for extension of time to comply with the same, the improvident recourse to the Supreme Court to suspend, annul or otherwise delay the proceedings, as well as the filing and resolution of motions to dismiss or for a bill of particulars or for the inhibition of the investigating officer, the denial of which motions is often also brought all over again to this Court on petitions for certiorari. An illustration of how the proceedings can be delayed by such procedural maneuvers is afforded by the case of Buenaseda, et al. vs. Flavier, et al., 5 the decision in which was ultimately promulgated by this Court on September 21, 1993. The petitioners therein questioned through repeated resourceful submissions the order of preventive suspension issued by the Ombudsman on January 7, 1992 and it took more than twenty (20) months before said order could eventually be reviewed on the merits and finally sustained by the Supreme Court. That is not all. Even after the formal hearing is scheduled, respondents can easily resort to the same dilatory tactics usually employed by an accused in regular court trials in criminal actions. Such stratagems can obviously result in the continued occupancy by the respondent of his office and, in the language of the law, could "prejudice the case filed against him." The longer period of six (6) months for preventive suspension under Republic Act No. 6770 was evidently induced by a desire to more meaningfully emphasize and implement the authority of the Office of the Ombudsman over public officials and employees in order to serve as a deterrent against illegal, unjust, improper and inefficient conduct on their part. As the agency mandated by the Constitution to undertake such task, it was invested with the corresponding authority to enable it to perform its mission. This intention is easily deducible from the pertinent constitutional provisions creating said office and from the express provisions of Republic Act No. 6770. Significantly, it is the only body authorized to investigate even officials removable by impeachment. 6 For purposes of the present case, therefore, and specifically on the issue subject of this concurring opinion, it would be advisable to recall what we said in Buenaseda, to wit: The purpose of RA No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objective of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided. A statute granting powers to an agency created by the Constitution should be liberally construed

for the advancement of the purposes and objectives for Department of which it was created (Cf. Department of Public Utilities v. Arkansas Louisiana Gas, Co., 200 Ark. 983, 142 S.W. [2d] 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E. 438 [1934]). On the foregoing considerations, which are much a matter of judicial and legislative experience, it is puerile for petitioner to impugn the expanded authority of preventive suspension as now granted by law to the Ombudsman. In fact, in certain situations, the maximum allowable period may even prove too short to subserve the intended purpose of the law. Footnotes 1 Petition for Certiorari and Prohibition, Annex A, Rollo, pp. 42-43. 2 Annex B, Rollo, pp. 47-52. 3 Annex D, Rollo, p. 54. 4 Annex H, Rollo, pp. 59-69. 5 Annex I, Rollo, p. 70. 6 Annex E & F, Rollo, pp. 55-57. 7 Rollo, p. 72. 8 Annex O, Rollo, p. 80. 9 Annex Q, Rollo, pp. 83-90. 10 OMB-VIS-(ADM)-94-0189. 11 OMB-VIS-(CRIM)-94-0475. 12 Annex V, Rollo, pp. 95-96. 13 Annexes FF and GG, Rollo, pp. 110 and 118. 14 Ombudsman Act of 1989, (R.A. No. 6770) 15(1). 15 Deloso v. Domingo, 191 SCRA 545 (1990). 16 ADMINISTRATIVE CODE of 1987, Bk IV, Ch. 7, 38(1). 17 106 Phil. 1031 (1960). Accord, Buenaseda v. Flavier, 226 SCRA 645 (1993). 18 226 SCRA 645 (1993). 19 At 655. 20 Cf. Lacson v. Rogue, 92 Phil. 456, 469 (1953).

21 201 SCRA 417, 427-8 (1991). REGALADO, J., concurring: 1 Section 42, Presidential Decree No. 807. 2 Section 41, id. 3 Section 24, Republic Act No. 6770. 4 Section 63, Republic Act No. 7160. 5 G.R. No. 196719, September 21, 1993, 226 SCRA 645. 6 Section 22, Republic Act No. 6770.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 109113 January 25, 1995 CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS),petitioners, vs. HON. OMBUDSMAN CONRADO M. VASQUEZ AND MEMBERS OF THE PHILIPPINE LARGE DIAMETER PRESSURE PIPE MANUFACTURERS ASSOCIATION (PLDPPMA), respondents.

VITUG, J.: The Ombudsman, in its 19th October 1992 Order, 1 directed the Board of Trustees of Metropolitan Waterworks and Sewerage System ("MWSS") (a) to set aside the recommendation of its Pre-qualification, Bids and Awards Committee for Construction Services and Technical Equipment ("PBAC-CSTE") that Contract No. APM-01 be given to a contractor offering fiberglass pipes and (b) to instead award the contract to a complying and responsive bidder pursuant to the provisions of Presidential Decree No. 1594. 2 The subsequent motion for reconsideration was denied by the Ombudsman in its Order 01 March 1993. These two Orders are now sought to be annulled in this petition for certiorari, with prayer for preliminary injunction or a restraining

order, lodged by the "Concerned Officials of the Metropolitan Waterworks and Sewerage System" 3led by its former Administrator Teofilo I. Asuncion. Let us first touch on the factual backdrop. In order to provide about 1.3 million liters of water daily to about 3.8 million people in the metropolitan area, 4MWSS launched the Angat Water Supply optimization ("AWSOP") consisting of several phases. The entire project would be, in most part, financed by funds loaned by the Overseas Economic Cooperation Fund ("OECF") of Japan to the national government and allocated to MWSS in the form of equity. 5 With the completion of the construction of the main aqueduct from Angat Dam all the way down to La Mesa Dam in Novaliches, Quezon City, from where water mains for the distribution system of the entire Metro Manila begin, MWSS focused its attention to the Distribution System Phase of the AWSOP. The projects were denominated Projects APM-01 and APM-02 which consist of the construction of the Distribution System Phase of the AWSOP, that would particularly call for the supply of labor, materials and equipment, and of the installation of new watermains (43,305 linear meters for APM-01 and 31,491 linear meters for APM-02), 6 comprising of fittings, valves and pipes of different sizes. 7 Under Clause IB-34 of the contract documents for APM-01 and APM-02 the permitted alternative pipe materials for the projects were to include the following items:
(millimeters) Asbestos cement Pipe (ACP) Cast Iron Pipe (CIP) Polyethylene Pipe (PE) Polyvinyl Chloride Pipe (DIP) Steel Pipe (SP) 100 mm to 600 mm 50 and larger 50 mm to 250 mm 50 mm and larger 400 mm and larger 300 mm and larger 8

Fiberglass Pressure Pipe (FPP)

On 30 August 1991, MWSS caused the publication in two (2) leading newspapers of an "Invitation for Pre-qualification and Bids" for Projects were opened for international competitive bidding, copies of the "Invitation for pre-qualification and Bids" were sent to the respective embassies and trade missions of member countries of the OECF. The advertisement and invitation to prospective bidders announced that "(g)oods and services to be supplied under (the) contract must have their origin from countries defined in the Guidelines for Procurement of Goods under OECF loans" and that "(j)oint ventures between foreign and domestic firms as encouraged." While there were twenty-five (25) prospective applicants who secured pre-qualification documents, only fourteen (14) contractors submitted corresponding applications to the PBAC-CSTE. On 20 November 1991, the PBAC-CSTE, after evaluating the applications for pre-qualification, issued a report 9concluding that only eleven (11) 10 out of the fourteen (14) contractors were pre-qualified to bid for the 31st March 1992 scheduled bidding covering both the APM-01 and APM-02 proposed contracts. The major factors considered in the evaluation were the applicants' financial condition, technical qualifications and experience to undertake the project under bid. Meanwhile, private respondent Philippine Large Diameter pressure Pipes Manufacturers' Association ("PLDPPMA"), 11 sent seven (7) letters, between 13 January and 23 March 1992, to the MWSS requesting clarification, as well as offering some suggestions, on the technical specifications for APM-01 and APM-02. The first letter, dated 13 January 1992, 12 sought clarification on the design criteria of thickness used for fiberglass and ductile iron pipes which varied from the standard thickness given by manufacturers. The second letter, dated 29 January 1992, 13 suggested that all alternative pipes for Projects APM-01 and APM-02 should have the same design criteria on stiffness class, pressure class, rating, elevated temperature and wall thickness and should be manufactured in accordance with American water Works Association ("AWWA") standards. PLDPPMA, in its third letter of 13 February 1992, 14 sought to be elaborated on the imposition of the testing procedure of stiffness factor on steel pipes used in Fiberglass Reinforced Pipes ("FRP") and suggested that the 5-year minimum experience by manufacturers be required for alternative pipes.

In its fourth letter, dated 25 February 1992, 15 PLDPPMA reiterated their request that the deflection allowance of 3% under the AWWA standards on steel pipes be also applied to all alternative pipes and suggested that a comparative study should be undertaken by the MWSS on the feasibility of using filament wound fiberglass pipes ("FRP") and centrifugally cast fiberglass pipes ("GRP"). In their fifth letter, dated 05 March 1992, 16 PLDPPMA appealed to the MWSS to have steel pipes placed in equal footing with other alternative pipes, specifically filament wound and centrifugally cast fiberglass pipes, in order to avoid an unfair requirement on stiffness value. In their penultimate letter of 16 March 1992, 17 PLDPPMA informed MWSS of their computation for wall thickness and stiffness values for cement lined/cement coated and epoxy lined/coal tar enamel coated steel pipes based on AWWA standards. Finally, in their seventh letter of 23 march 1992, 18 PLDPPMA reiterated their request for correcting the specifications for steel and fiberglass pipes, particularly on wall thickness and deflections, because of MWSS Addendum #5 where the wall thickness for steel pipes were noted to be more than the wall thickness computed in the previously agreed agenda. Former Administrator Luis Sison issued, between 10 February and 24 March 1992, six (6) addenda to the bidding documents that embodied the meritorious suggestions of PLDPPMA on various technical specifications. In his 24th March 1992 letter to the PLDPPMA, in response to the latter's 23rd march 1992 (seventh) letter, Sison explained that the additional thickness for steel pipes was so required in order to serve as a pipe corrosion allowance to counter imperfection in the preparation and application of lining and coating, the limit service life of epoxy resin lining and the corrosive element of the local soil. The bidding was conducted by PBAC on the previously scheduled date of 31 March 1992. The prequalified bidders using steel and fiberglass pipes submitted their respective bid proposals. The approved agency cost estimate for Project APM-01 was Three Hundred Sixty Six Million Six Hundred Fifty Thousand Pesos (P366,650,000,00). 19 The Three (3) lowest bidders for the said project (APM-01) were the following:
BIDDER 1 2 3 DYWIDAG/TITAN/WILPER PLDPPMA/GREEN JADE (Joint Venture) F.F. CRUZ & CO., INC. J.V. ANGELES CONST. CORP./JA DEVT. CORP. P278,205,457.00 20 P267,345,574.00 P268,815,729.00 BID PRICE

while the three lowest bidders for Project APM-02 included:

BIDDER 1 2 3 ENG'G. EQUIPMENT, INC. (EEI) FF CRUZ & CO., INC. J.V ANGELES CONST. CORP./JA DEVT. CORP. P277,304,604.00 21 BID PRICE P219,574,538.00 P233,533,537.00

In APM-01, Joint Venture and F.F. Cruz and Co., Inc. proposed to use fiberglass pipes. In APM-02, Eng'g. Equipment Inc. and F.F. Cruz likewise preferred to use fiberglass pipes. After the three lowest bidders for both projects were known, a meeting was held on 27 May 1992 by the PBAC-CSTE, composed of MWSS Deputy Administrator for Engineering Eduardo M. del Fierro, as Acting Chairman, and deputy Administrator for Operations Ruben A. Hernandez, Acting Chief of Legal office Precioso E. Remolacio, and Project Manager Cesar S. Guevarra, as members, to decide on what should be done about Contract APM-01. Three of the members, namely, Hernandez, Guevarra

and Asuncion, recommended for the contract on the following grounds: a. Ambiguity of Addendum No. 6 The Addendum is subject to different interpretations because there was no illustrations provided. Further, it could also be said that some contractors did not use the FRP because said Addendum was not clearly explained. b. There was no provision for maintenance/repair materials for bidders who opted to use FRP which is relatively new pipe to be used in the country. It was suggested that a 5% to 10% allowance be provided for maintenance purposes.
c. Further review of pipe design should be made by the Consultant (NJS) in order to accommodate the load to be carried in the Umiray-Angat Loop. 22

Precioso E. Remolacio abstained; he felt that "technical evaluation (was) more essential in deciding the issues in (the) Contract." For his part, Acting Chairman Eduardo M. del Fierro recommended that no rebidding should be undertaken and that an award should be made to either the lowest or the second lowest bidder. On 29 May 1992, PBAC-CSTE met again to discuss and evaluate the bids in APM-02. Here again, three members, namely, Guevarra, Hernandez and Asuncion, opined that a rebidding should be conducted, while Acting Chairman del Fierro and Remolacio believed that the contract should be awarded to the lowest bidder. Finally, on 02 June 1992, the PBAC-CSTE formally submitted its report 23 on its bid evaluation on APM-01. The PBAC-CSTE held that while Joint Venture's bid might have been the lowest it was, however, invalid due to its failure to acknowledge Addendum No. 6, a major consideration, that could not be waived. It accordingly recommended that the contract be instead awarded to the second lowest but complying bidder, F.F. Cruz & Co., Inc., subject to the latter's manifestation that it would only hire key personnel with experience in the installation of fiberglass pressure pipes (due to PBAC-CSTE's observation in the report that the company and its key personnel did not have previous experience in the installation of fiberglass reinforced pipes). Acting Chairman del Fierro, together with members Guevarra and Asuncion, approved the PBAC-CSTE's findings and recommendation. Hernandez and Remolacio both disagreed with the findings of the PBAC-CSTE; the former opted for a rebidding while the latter batted for awarding the contract to Joint Venture. On the following day, or on 03 June 1992, the MWSS Board Committee on Construction Management and the Board Committee on Engineering, acting jointly on the recommendation of Administrator Sison, recommended that Contract No. APM-01 be awarded to F.F. Cruz & Co., Inc., being the lowest complying bidder. 24 Prior thereto, or on 07 April 1992 (seven days after the submission of the bid proposals on 31 March 1992), private respondent PLDPPMA, through its President Ramon Pastor, filed with the Office of the Ombudsman a letter-complaint 25 (docketed Case No. OMB-0-92-0750) protesting the public bidding conducted by the MWSS for Projects APM-01 and APM-02, detailing charges of an "apparent plan" on the part of the MWSS to favor suppliers of fiberglass pipes, and urging the Ombudsman to conduct an investigation thereon and to hold in abeyance the award of the contracts. PLDPPMA's letter-complaint, in part, read: Even before the bidding had started, there appears to be an apparent plan on the part of the MWSS to favor a particular supplier of pipes for the project considering the following events: Firstly, the bid documents particularly the specifications for alternative pipes when first released in December 1991 whimsically and arbitrarily set such rigid standards for steel pipes so that MWSS had to issue six addenda to the bidding documents and had to postpone the bidding several times in a vain attempt to correct the apparent prejudice against the use of steel pipes for the APM 01 and 02 projects; Secondly, despite our prior agreement with MWSS Engineering Department that the alternative pipes to be used for the project should comply with internationally accepted AWWA specifications was written

arbitrarily and in complete disregard of AWWA specifications increased by 1 mm. the thickness required for steel pipes thereby effectively increasing the cost of steel pipes for the APM 01 project bid by about P30 Million, or more than twice the difference between the lowest bid and the bid that utilized steel pipes; Thirdly, despite the fact that it was/is of common knowledge that FRP and GRP (Fiberglass) pipes have had a long history of failures in the United States such that even MWSS Pre-qualification, Bidding and Awards Committee resolved in a meeting held in March 1992 not to use FRP and GRP pipes for large projects, bids utilizing such pipes were still accepted for the FRP and GRP pipes for large projects, bids utilizing such pipes were still accepted for the APM 01 and 02 projects; and Lastly, the undue preference for the use of GRP pipes became more apparent when the supposed lowest bidder for the APM 01 project (who did not participate in the bidding for APM 02 project), and the supposed lowest bidder for the APM 02 project (who also did not participate in the bidding for APM 01 project), both submitted bids utilizing GRP pipes. On 10 June 1992, the Ombudsman referred PLDPPMA's 07th April 1992 letter-complaint to the MWSS Board of Trustees for comment along with a directive to it to hold in abeyance the awarding of the subject contract. 26MWSS asked for an extension of time within which to submit its comment but called, at the same time, the attention of the Ombudsman to Presidential Decree No. 1818 27 prohibiting the issuance of restraining orders/injunctions in cases involving government infrastructure projects. After the submission by the parties of their respective pleadings, the case was referred to the Fact-Finding and Intelligence Bureau of the Office of the Ombudsman for Investigation and report 28 was submitted to, and approved by, the Ombudsman which became the basis for the issuance of the now challenged order, dated 19 October 1992, 29 reading as follows: In view of the findings of this Office on the above-entitled case as contained in the Fact-Finding Report, dated September 14, 1992, of the Fact Finding Investigation Bureau (copy attached), and pursuant to the Powers, Functions and Duties of the Office of the Ombudsman as mandated under Section 15 of Republic Act 6770 (Ombudsman Act), the MWSS Board of Trustees in hereby directed to: 1) Set aside the recommendation of the MWSS Pre-qualification, Bids and Awards Committee for Construction Services and Technical Equipment (PBAC-CSTE) to award Contract APM-01 to a contractor offering fiberglass pipes; 2) Award the subject contract to a complying and responsive bidder pursuant to the provisions of PD 1594, Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts. The Board of Trustees is further directed to inform this Office of the action taken thereon. SO ORDERED. A motion by herein petitioners for the reconsideration of the order was denied on 01 March 1993. 30 Petitioners cite to us the following reasons for its petition for certiorari. I RESPONDENT OMBUDSMAN ACTED BEYOND THE COMPETENCE OF HIS OFFICE WHEN HE ASSUMED JURISDICTION OVER THE COMPLAINT AT BAR NOTWITHSTANDING THAT THE SAME IS CLEARLY AMONG THE CASES EXCEPTED BY SECTION 20 OF THE OMBUDSMAN ACT OF 1989 (RA NO. 6770) WHICH ENUMERATED THE ADMINISTRATIVE ACT OR OMISSION THAT MAY NOT

BE THE SUBJECT OF INVESTIGATION BY HIS OFFICE. II RESPONDENT OMBUDSMAN, AFTER HAVING TAKEN COGNIZANCE OF THE COMPLAINT, ARBITRARILY ISSUED A DIRECTIVE IN THE NATURE OF A RESTRAINING ORDER OR WRIT OF PRELIMINARY INJUNCTION TO PETITIONERS "TO HOLD IN ABEYANCE THE AWARDING OF THE CONTRACT . . . UNTIL FURTHER ORDER FROM THIS OFFICE," A POWER OR AUTHORITY NOT VESTED IN HIS OFFICE. III RESPONDENT OMBUDSMAN ACTED WITHOUT JURISDICTION IN ISSUING THE ORDER OF OCTOBER 1993, CONSIDERING THAT UNDER THE LAW THE OMBUDSMAN'S JURISDICTION CANNOT AND SHOULD NOT BE EXPANDED TO INCLUDE THE DECISION MAKING POWER OVER A CIVIL ADJUDICATORY MATTER SUCH AS THE MWSS BIDDING PROCESS. IV RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION, BY ARBITRARILY AND CAPRICIOUSLY INTERPRETING WITH THE EXERCISE OF SOUND DISCRETION BY THE MWSS WHICH IS A SPECIALIZED AGENCY OF GOVERNMENT WITH WHICH EVEN COURTS OF JUSTICE GENERALLY DO NOT INTERFERE TO ISSUE THE ORDERS. V RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION, IN ISSUING THE SUBJECT ORDERS IN GROSS DISREGARD OF THE CARDINAL PRINCIPLES OF DUE PROCEEDINGS, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE SAID ORDERS. VI RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION, IN GROSSLY MISAPPREHENDING THE RECORD BY FAILING TO TAKE INTO ACCOUNT THE FINDINGS OF EXPERTS THAT THE MWSS SPECIFICATIONS ARE FAIR, AND BY CONCLUDING BASELESSLY THAT MWSS FORMULATED ITS SPECIFICATIONS TO FAVOR FIBERGLASS PIPES OVER STEEL PIPES, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE THE SUBJECT ORDERS. VII RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF LAW, AND ACTED ARBITRARILY AND CAPRICIOUSLY, IN IMPLYING BASELESSLY THAT MWSS ACTED UNFAIRLY, OPPRESSIVELY AND WITH GRAVE ABUSE OF DISCRETION, ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO ISSUE THE SUBJECT ORDERS. VIII
IN CONSEQUENCE, THE ORDERS OF OCTOBER 19, 1992 AND MARCH 1, 1993 MUST BE REVERSED,

ANNULLED AND SET ASIDE. 31

After the required pleadings were filed by the parties, this Court, in its resolution of 19 May 1994 gave due course to the petition and required the parties to submit memoranda. In compliance therewith, the parties filed their respective memoranda, petitioners (MWSS) on 07 July 1994, the Solicitor-General on 28 June 1994, and PLDPPMA on 19 July 1994. Petitioners opposed Titan's intervention. This Court, ultimately, denied the motion for leave to intervene. The various alleged errors raised by petitioners can be grouped into two basic issues, i.e., (a) whether or not the rudiments of due process have been properly observed in the issuance of the assailed 19th October 1992 and 01st march 1993 orders of the Ombudsman; and, more pivotal that the first, (b) whether or not the Ombudsman has jurisdiction to take cognizance of PLDPPMA's complaint and to correspondingly issue its challenged orders directing the Board of Trustees of the MWSS to set aside the recommendation of the PBAC-CSTE. Relative to the first issue, we are more than convinced, after a scrutiny of the records of this case, that petitioners have been amply accorded the opportunity to be heard. Petitioners were asked to comment on the letter-complaint of PLDPPMA. On 25 June 1992, petitioners moved for an extension of time within which to comment. On July 16, 1992, petitioners filed their letter-comment. Responding to the reply of PLDPPMA, petitioners later filed a rejoinder. When an adverse order was rendered against them, petitioners moved for its reconsideration, albeit to no avail. The absence of due process is an opportunity to be heard. 32 One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. 33 In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense. On the threshold matter that puts to issue the Ombudsman's directive to the Board of Trustees of MWSS to set aside the recommendation of the PBAC CSTE to award Contract No. APM-01 to the lowest complying bid, we find, this time, the petition to be impressed with merit. Petitioners maintain that while Republic Act ("R.A.") No. 6770, otherwise known as the Ombudsman Act of 1989, extends certain well-defined powers and authority to the Office of the Ombudsman to, among other functions, investigate and prosecute complaints filed therewith, the same law, however, expresses limits to the exercise of such jurisdictional power and authority. Section 20 of the Act is cited; viz: Sec. 20. Exceptions. The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that: (1) The Complainant has an adequate remedy in another judicial or quasi-judicial body; (2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman; (3) The complaint is trivial, frivolous interest in the subject matter of the grievance; or (4) The complaint is trivial, frivolous, vexations or made in bad in bad faith; (5) The complaint was filed after one year from the occurrence of the act or omission complained of. Petitioners contend that PLDPPMA's complaint falls under exceptions (1) to (4) of Sec. 20 of R.A. No. 6770, and that, therefore,

the Ombudsman should not have taken cognizance of the complaint. Asserting, upon the other hand, that the Ombudsman has jurisdiction over PLDPPMA's complaint, the Solicitor-General enumerations various constitutional and statutory provisions; to wit: (a) Section 13, Article XI of the 1987 Constitution providing thusly: Sec. 13. The Office of the Ombudsman shall have the following powers, functions and duties: (1) 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. (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 of Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rule of procure and exercise such other powers or perform such functions or duties as may be provided by law. (b) Section 13 of republic Act No. 6770 which reads: Sec. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the to the people. (c) Section 15, paragraphs (1) to (7), of republic Act No. 6770 which reproduced verbatim the aforequoted provisions of Section

13 of the 1987 Constitution with some additional salient statutory provisions; hence: Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: xxx xxx xxx (8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; (9) Punish for contempt in accordance with the Rules of Court and under the same penalties provided therein; (10) delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions and duties herein or hereinafter provided; (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein; The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties. (d) And, finally, Section 26 of the Ombudsman Act which expresses, as follows: Sec. 26. Inquiries. The Office of the Ombudsman shall inquire into acts or omissions of the public officer, employee, office or agency which, from the reports or complaints it has received the Ombudsman or his Deputies consider to be: (a) contrary to law or regulation; (b) unreasonable, unfair, oppresive, irregular or inconsistent with the general course of the operations and functions of a public officer, employee, office or agency; (c) an error in the application or interpretation of law, rules or regulations, or a gross or palpable error in the appreciation of facts; (d) based on improper motives or corrupt considerations; (e) unclear or inadequately explained when reasons should have been revealed; or (f) inefficiently performed or otherwise objectionable. 2. The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt thereof. If the answer is found satisfactory, it shall dismiss the case.

3. When the complaint consists in delay or refusal to perform a duty required by law, or when urgent action is necessary to protect or preserve the rights of the Ombudsman shall take steps or measures and issue such orders directing the officer, employee, office or agency concerned to: (a) expedite the performance of duty; (b) cease or desist from the performance of a prejudicial act; (c) correct the omission; (d) explain fully the administrative act in question; or (e) take any steps as may be necessary under the circumstances to protect and preserve the rights of the complainant. 4. Any delay or refusal to comply with the referral or directive of the Ombudsman or any of his Deputies shall constitute a ground for administrative disciplinary action against the officer or employee to whom it was rendered. On the basis of all the foregoing provisions of law, the Solicitor-General insists that the authority of the Ombudsman is sufficiently broad enough to cloth it with sufficient power to look into the alleged irregularities in the bidding conducted on 31 March 1992 leading to the recommendation made by the PBAC-CSTE on contract APM-01. He argues that even if no criminal act could be attributed to the former MWSS Administrator and members of the PBAC-CSTE, the questioned report could still be embraced in the all-encompassing phrase "all kinds of malfeasance, misfeasance, and non-feasance," and falls within the scope of the constitutional provision calling for an investigation of "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." Indeed, in Deloso v. Domingo, 35 this Court had occasion to explain not only the rationale for the creation of an office of the Ombudsman but also the grant to it of broad investigative authority, thus: The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office." To begin with, the owners, functions and duties of the Ombudsman have generally been categorized into the following headings: Investigatory Power; Prosecutory Power; Public Assistance Functions; Authority to Inquire and Obtain Information; and Function to Adopt, Institute and Implement Preventive Measures. Although the Solicitor-General has practically enumerated all the constitutional and statutory provisions describing the ample authority and responsibilities of the Ombudsman, the particular aspect of his functions that, however, really finds relevance to the present case relates to his investigatory power and public assistance duties which can be found in the first and second paragraphs, respectively, of Section 13, Article XI, of the Constitution, along with the corresponding provisions of the Ombudsman Act. This much can be gleaned from the findings of the Office of the Ombudsman leading to its questioned orders.

We quote: a. There is an evident on the part of the MWSS under then Administrator Sison to favor suppliers of fiberglass when it prescribed rigid standards for steel pipes but set lenient requirements for pipes made of fiberglass, for the following reasons: 1. MWSS management rely on the AWWA standards for fiberglass pipe but neglect the same AWWA standards for steel pipes. The MWSS management under Administrator Sison disregarded the AWWA specifications by increasing 1mm thickness for steel pipes. 2. Complainant sent seven letters to the MWSS questioning and making suggestions of the rules of the bidding it set but only one was answered by Administrator Sison dated and received (by the complainant) after the bidding. 3. The MWSS' original specification for stiffness of fiberglass (36 psi) was [c]hanged to 54 psi (pounds per square inch) in its Addendum No. 1 as a result of the complaints of the PLDPPMA members. But in its Addendum No. 4, the MWSS reverted to the original stiffness class of 36 psi. In the letter-comment dated July 26, 1992 of the MWSS, thru Acting Administrator Teofilo I. Asuncion, the MWSS tried to mislead this office by stating that the stiffness class of fiberglass pipes was increased from 36 psi to 54 psi when in truth, as appearing in its Addendum No. 4, the MWSS reverted to the original stiffness class of 36 psi. there is nothing in the subsequent Addenda (Nos. 5 and 6) that will show that the MWSS finally settled for the stiffness class of 54 psi. 4. The MWSS failed to prescribe specific pipe laying procedure for fiberglass pipes. Contrary to the claim of the MWSS that pipes is not a complicated procedure as it is similar with other types of pipes, the installation of fiberglass pipes seems to be a critical factor in the successful implementation of a project as shown in the findings of experts, attached by the MWSS in its motion, and quoted as follows: . . . 5. The MWSS failed to include in the Specifications a provision for the maintenance/repair materials for bidders who opted to use fiberglass pipes. The importance of a provision for repair of fiberglass pipes can be inferred in the findings of experts cited by the MWSS and quoted as follows: . . . 6. The MWSS tried to limit the acceptable joints for fiberglass pipes favorable to a fiberglass manufacturer by issuing Addendum No. 6 which was undated. The provision of Addendum No. 6 "The only acceptable joints are gasketted bell and Spigot and Mechanical Type" appears to be vague and ambiguous as it cannot be determined clearly whether the bidders will be using the Mechanical Type of Joint. As stated in the Report, the cost of the Bell and Spigot Joint is cheaper than the cost of mechanical Type Joint. Moreover, it was only June 1, 1992 or two (2) months after the bidding that the MWSS issued clarification to the effect that fiberglass pipes bidders can use either the Bell and Spigot type or Mechanical type. 7. In connection with Addendum No. 6, this office recently got hold of a copy of a letter dated January 31, 1992 (found on Folder I, records) of Joseph Albanese, Gruppo Sarplast, Milan, Italy (Manufacturer/Supplier of fiberglass pipes for F.F. Cruz & Co. Inc.), addressed to Felipe Cruz. The letter was officially stamped/received by the Office of the MWSS Administrator on February 12, 1992. It also has a verio From: Mr. F.F. Cruz." The pertinent portion of the letter in the light of Addendum No. 6 is quoted as follows:

8. Conclusion "During the pre-bid meeting our friends should stay: our Spec TS-23 is a general one, but for this case only the pipes produced with discontinuing filament winding will be accepted and only bell and spigot joint." The existence of such a letter in such a situation can only mean that F.F. Cruz and Sarplast, Italy had previous communications with the top officials of the MWSS even before the opening of the bids on march 31, 1992. Clearly, the issuance of Addendum No. 6 would only fit well for F.F. Cruz Co., Inc. and Sarplast who is proposing the use of discontinuous filament winding fiberglass pipe with bell and Spigot joint. b. MWSS has no experience and sufficient knowledge on the use of fiberglass pipes. c. The Contractors who proposed to use fiberglass pipes have no tract record or experience in the installation of the same. Thus, they are not qualified to undertake projects pursuant to the provisions of PD 1594 and under the guidelines of the Overseas Economic Cooperation Fund. d. The would-be manufacturers of fiberglass pipes has no manufacturing plant at this stage and there is no guarantee whether such manufacturing plants will be operational.
e. There is no assurance that the manufacturers of fiberglass would be able to produce the kind of pipe desired.36

In sum, the Office of the Ombudsman has considered three issues: (1) whether or not the technical specifications prescribed by the MWSS in projects APM 01 and 02 have been so designed as to really favor Fiberglass Pipes-Contractors/Bidders; (2) whether or not the MWSS has the technical knowledge and expertise with fiberglass pipes; and (3) whether or not the contractors and local manufacturers of fiberglass pipes; and (3) whether or not the contractors and local manufacturers of fiberglass pipes have the experience and qualification to undertake the APM-01 and APM-02 projects. While the broad authority of the Ombudsman to investigate any act or omission which ". . . appears illegal, unjust, improper, or inefficient" may be yielded, it is difficult to equally concede, however, that the Constitution and the Ombudsman Act have intended to likewise confer upon it veto or revisory power over an exercise of judgment or discretion by an agency or officer upon whom that judgment or discretion is lawfully vested. It would seem to us that the Office of the Ombudsman, in issuing the challenged orders, has not only directly assumed jurisdiction over, but likewise pre-empted the exercise of discretion by, the Board of Trustees of MWSS. Indeed, the recommendation of the PBAC-CSTE to award Contract APM-01 appears to be yet pending consideration and action by the MWSS Board of Trustees. We can only view the assailed 19th October 1992 Order to be more of an undue interference in the adjudicative responsibility of the MWSS Board of Trustees rather than a mere directive requiring the proper observance of and compliance with law. The report submitted by the Fact-Finding and Intelligence Bureau of the Office of the Ombudsman reveals its predisposition against the use of fiberglass pipes, a technical, rather than a legal, matter. The fact-finding report has dealt with such matters as (1) the wall thickness of pipes; (2) the joints; (3) the pipe laying procedure; (4) the technical expertise of the MWSS, on the one hand, and the fiberglass proponements, on the other; and (5) the supposed negative international feedback on the use of fiberglass pipes. The question could be asked: Was the 31st March 1992 bidding really that faulty? During the bidding, the people present were the PBAC members, a COA representative, the bidders and the general public. The eleven (11) prequalified contractors, according to the prequalification evaluation 37 of the PBAC, possessed the required experience, technical qualification and financial condition to undertake the project. It should not be amiss to mention that the PBAC, under the implementing rules and regulations of P.D. No. 1594, 38 was tasked with the responsibility "for the conduct of prequalification, bidding, evaluation of bids and recommending award of contracts." In evaluating the bids, PBAC stated in its report that it had examined the three lowest bids. Part of PBAC's review was to verify whether the proposed pipe materials were in conformity with the permitted alternative materials specified in Clause IB-34 of the bid document. 39 In thereafter recommending that the award be made to F.F. Cruz, Inc.,

instead of Joint venture, PBAC explained: As presented above, evaluation of the bid results touches on a number of parameters to determine whether the bids are "substantially responsive to the bidding documents and has offered the lowest evaluated bid, and that the bidder has the capacity and resources to effectively carry out the Contract Works." The evaluation was conducted as fairly and accurately as possible to come up with a recommendation that satisfies the interest of the MWSS which in the final analysis, shall bear the consequences if the contract is not fully performed. Conclusions of the important issues are hereunder presented. A. Establishing the validity of the Bid of the Lowest Bidder The deficiencies with respect to the bidding requirements enumerated in

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 120422 September 27, 1995 CHIEF SUPT. ROMEO ACOP and SENIOR SUPT. FRANCISCO G. ZUBIA, petitioners, vs. THE OFFICE OF THE OMBUDSMAN and HON. MANUEL B. CASACLANG, in his capacity as the Deputy Ombudsman for the Military, respondents. G.R. No. 120428 September 27, 1995 P/CHIEF SUPT. PANFILO M. LACSON, P/CHIEF INSP. MICHAEL RAY B. AQUINO, P/SR. INSP. BASILIO LUCERO, JR., P/SR. INSP. ROLANDO B. MENDOZA, P/INSP. GIL B. LAGMAN, P/INSP. MANUEL BUKARNO B. ALVAREZ, and OTHER TASK FORCE HABAGAT PERSONNEL CHARGED BEFORE THE OMBUDSMAN IN OMB-AFP-CRIM-95-0084, petitioners, vs. BGEN. MANUEL B. CASACLANG, in his capacity as the Deputy Ombudsman for the Military, P/CHIEF SUPT. JOB A. MAYO, JR., MYRNA ABALORA, NENITA G. ALAP-AP, and IMELDA PANCHO MONTERO,respondents.

DAVIDE, JR., J.: These cases, both filed under Rule 65 of the Rules of Court, were consolidated as they arose from the same factual milieu. At the oral arguments on 5 July 1995, the Court defined the common issues within which the parties agreed to limit their arguments: 1. Whether it is the Office of the Ombudsman or the Office of the Special Prosecutor which has jurisdiction over the complaint in question; and 2. Whether or not public respondent Deputy Ombudsman for Military Manuel Casaclang committed grave abuse of discretion when he set the case for preliminary investigation and required the petitioners to submit their counter-affidavits before any preliminary evaluation of the complaint as required by Section 2, Rule II of Administrative Order No. 07 of the Office of the Ombudsman. The first is the kernel issue raised in G.R. No. 120422 and the petitioners therein pray that this Court re-examine the holding in Zaldivar vs. Sandiganbayan. 1 Provoked during oral arguments was the corollary issue of whether the Deputy Ombudsman for the Military can conduct investigations involving civilian personnel of the Government. The undisputed facts which gave rise to this controversy are summarized in the Consolidated Comment of the Office of the Solicitor General as follows: On May 18, 1995, eleven (11) suspected members of the notorious robbery gang, "Kuratong Baleleng," were killed in an alleged shootout with composite teams of the National Capital Regional Command (NCRC), Traffic Management Command (TMC), Presidential Anti-Crime Commission (PACC), Central Police District Command (CPDC) and Criminal Investigation Command (CIC). On May 22, 1995, Senior Police Officer (SPO) 2 Eduardo de los Reyes of the Central Intelligence Command (CIC) made an expose', stating that there was no shootout. De los Reyes stated that the eleven (11) suspected members of the "Kuratong Baleleng" gang were victims of summary execution. The following day, he executed a sworn statement to this effect. . . . On May 24, 1995, the Commission on Human Rights (CHR) received the separate sworn statements of Myrna Abalora, Nenita G. Alap-ap and Imelda Pancho Montero are relatives of the slain suspected gang members, accusing the PACC, NCRC, TMC, CIC and CPDC of murder. On May 26, 1995, Acting Ombudsman Francisco A. Villa, in a handwritten note, directed public respondent Deputy Ombudsman Casaclang to monitor the investigations being conducted by the Commission on Human Rights, the Senate Committee on Justice and Human Rights, and the Philippine National Police (PNP) Director for Investigation regarding the alleged shootout. . . . In response to the above directive, public respondent Casaclang issued on the same date Office Order No. 95-17, Series of 1995, directing Ombudsman Investigator Bienvenido C. Blancaflor and Associate Graft Investigation Officers Richard U. Correos and Ricardo A. Sullano to monitor the investigations being conducted by the above-mentioned agencies. . . . . On May 29, 1995, public respondent Casaclang sent written requests to Senator Raul Roco, Chairman of the Senate Committee on Justice and Human Rights, and Hon. Sedfrey Ordoez, Chairman of the Commission on Human Rights, for documents relative to the May 18, 1995, alleged shootout incident. . . . On May 30, 1995, the CHR, through Commissioner Narciso Monteiro, furnished public respondent Casaclang with copies of the

sworn statements of the relatives of the slain suspected "Kuratong Baleleng" gang. . . . On May 30, 1995, SPO2 Corazon de la Cruz appeared and testified before the Joint Senate Committee conducting a legislative inquiry into the May 18, 1995 incident. SPO2 De la Cruz corroborated the statements of SPO2 De los Reyes stating that no shootout had taken place and that the eleven (11) slain suspected "Kuratong Baleleng" gang members were summarily executed by the composite teams. . . . On June 1, 1995, public respondent Casaclang issued Office Order No. 95-18, creating a panel of investigators with Ombudsman Investigator Bienvenido Blancaflor as head of the panel and Investigators Avelino C. Macamus, Jr. and Domingo Doctor Jr. as members. . . . On the same date, respondent P/Chief Supt. Job A. Mayo, Jr., in a letter-complaint addressed to the Ombudsman, charged petitioners and several others with murder in connection with the killing of the eleven (11) suspected "Kuratong Baleleng" gang members. He attached to his letter-complaint the Investigation Report dated May 31, 1995, signed by him in his capacity as Chairman of the Special Investigating Committee, PNP. . . . The letter-complaint was docketed at the Office of the Ombudsman as case OMB-AFP-CRIM-95-0084. On June 2, 1995, respondent Casaclang directed the Panel of Investigator[s] to terminate the investigation and submit its resolution within 60 days from receipt of his order. . . . On June 5, 1995, public respondent Casaclang was furnished by the Senate Committee on Justice and Human Rights with copies of various documents, as well as transcripts of its proceedings, relative to its investigation of the May 18, 1995 incident. Respondents undertake to submit the documents and transcripts if this Honorable Court so requires as they are voluminous and reproduction and sorting thereof will take time. On June 7, 1995, respondent Casaclang issued a subpoena duces tecum/ad testificandumaddressed to PNP Director General Recaredo Sarmiento, directing him or his duly authorized representative to appear before the Panel of Investigators and to submit the "After Operations Report" of the PNP relative to the operations which resulted in the May 18, 1995, incident. . . . On June 8, 1995, the Panel of Investigators submitted their Evaluation Report in OMB-AFP-CRIM-950084 to public respondent Casaclang. The report recommended that a preliminary investigation be conducted against herein petitioners and all the participating personnel of the NCRC, PACC, CIC, TMC and CPDC listed in the After Operations Report of the PNP. . . . On June 13, 1995, respondent Mayo, in behalf of the PNP Director General, submitted to the, Ombudsman the required After Operations Report of the PNP. The report contained the list of personnel and officers involved in the May 18, 1995, operations against the "Kuratong Baleleng" gang. . . .
On June 14, 1995, public respondent Casaclang issued the questioned order directing petitioner[s] and nine others to submit their counter-affidavits and controverting evidence within ten days from receipt thereof. . . . 2

The petitioners did not comply with the 14 June 1995 order, neither did they move for reconsideration. Instead, the petitioners questioned the conduct of the preliminary investigation without the required preliminary evaluation in their respective petitions filed with this Court on: 19 June 1995 in G.R. No. 120422; 20 June 1995 in G.R. No. 120428; and on 3 July 1995, a supplemental petition in G.R. No. 120428. After the oral arguments on 5 July 1995, we ordered the parties to submit their respective memoranda. The petitioners in G.R.

No. 120422 complied on 17 July 1995, while the petitioners in G.R. No. 120428 and the public respondents on 19 July 1995. On 17 July 1995, we required the respondents in G.R. No. 120428 to comment on the supplemental petition filed therein. Further developments in G.R. No. 120428 which lead to the status quo are as follows: On 26 July 1995, Acting Ombudsman Francisco Villa ordered the petitioners in G.R. No. 120428 to file their counter-affidavits to the complaint within ten days from notice. Consequently, on 27 July 1995, the petitioners filed a motion with this Court to cite Acting Ombudsman Villa in contempt of court. The petitioners contended that the 26 July 1995, order preempted this Court from ruling on the issue regarding the Ombudsman's jurisdiction to conduct a preliminary investigation on the complaint filed against the petitioners. Thus, the petitioners concluded, the order contravened Section 3 (a), (c), and (d), Rule 71 of the Rules of Court and prayed that Villa be cited in contempt and a temporary restraining order be issued to enjoin him from implementing his order. Anent the turn of events in G.R. No. 120422, the progress of the case may be traced in this wise: On 23 June 1995, the petitioners filed a motion with respondent Casaclang to suspend the preliminary investigation against them pending resolution of the petition for certiorari filed with the Supreme Court. On 28 June 1995, respondent Casaclang granted the motion, only to be reversed by Acting Ombudsman Villa. In a memorandum dated 21 July 1995, Acting Ombudsman Villa took over "the direct supervision and control of the preliminary investigation" and subsequently issued the questioned 26 July 1995 order. In a Manifestation and Omnibus Motion filed with this Court on 28 July 1995, the petitioners in G.R. No. 120422 challenged the take-over, asserting: First, that it violated Section 3, Rule II of Administrative Order No. 07 issued by the Ombudsman. The petitioners emphasized that the enumeration in the said Section does not include the Ombudsman himself nor the Acting Ombudsman among those authorized to conduct preliminary investigations. Second, that in so doing, Villa effectively denied the petitioners the different appellate levels within the Office of the Ombudsman. And third, that Villa's take-over and order in question prejudged the very issues pending before the Supreme Court and was, therefore, contemptuous. Hence, the petitioners in G.R. No. 120422 joined cause with the prayer of the petitioners in G.R. No. 120428. On 31 July 1995, we required the respondents to comment on the motions for contempt, and in compliance, Acting Ombudsman Villa filed his comment on 7 August 1995. He asserted that pursuant to Peza vs. Alikpala, 3 the mere pendency of a special civil action for certiorari before this Court, commenced in relation to a case pending before a lower court, does not interrupt the latter's course when no writ of injunction restraining it has been issued as in the present case. The public respondents filed their Comment on 15 August 1995. I As to the first issue, the petitioners in G.R. No. 120422 concede that in the light of this Court's decision in Zaldivar,4 it is the Ombudsman, and not the Office of the Special Prosecutor, which has jurisdiction to conduct the preliminary investigation on the complaint filed against them. The petitioners plead, however, for this Court re-examine the conclusion reached in Zaldivar, i.e., that under the 1987 Constitution, the Tanodbayan no longer has the authority to conduct preliminary investigations except upon order of the Ombudsman. Said conclusion, the petitioners assert, "is based on a wrong premise." In substance, the petitioners forward two propositions in support of their plea: First, the petitioners posit that the Ombudsman's "duty to investigate on its own or on complaint of any person" 5 is separate and distinct from "the power to conduct preliminary investigations," 6 and maintain that the latter "remains with the Tanodbayan, now the Special Prosecutor"; and second, that based on the pertinent provisions of the 1987 Constitution, it is erroneous to conclude that the Special Prosecutor is a subordinate of or may be subsumed by the Ombudsman under the Constitution. 7 As to the first proposition, the petitioners refer to the Record of the Constitutional Commission of 1986 (hereinafter Commission) on the debates relative to the powers of the Ombudsman proposed by the Committee on Accountability of Public Officers. The petitioners extensively quote the admissions of Commissioners Christian S. Monsod and Jose S. Colayco (Chairman and ViceChairman, respectively, of the Committee) during the interpellations to the effect that it was the intention of the Committee not to grant to the proposed Ombudsman prosecutorial powers which would, instead, be left to the proposed Office of the Special Prosecutor. Thus:

MR. MONSOD: (sponsorship speech) xxx xxx xxx

With respect to the Sandiganbayan and the Tanodbayan, the Committee decided to make a distinction between the purely prosecutory function of the Tanodbayan and the function of a pure Ombudsman who will use the prestige and persuasive powers of his office. To call the attention of government officials to any impropriety, misconduct or injustice, we conceive the Ombudsman as a champion of the citizens. . . The concept of the Ombudsman here is admittedly a little bit different from the 1973 concept. . . 8

xxx xxx xxx MR. RODRIGO: I noticed that the proposed provisions of the Ombudsman retain the Tanodbayan, and there seems to be an overlapping in the functions of the Tanodbayan and the Ombudsman. What is the clear-cut dividing line between the functions of the Ombudsman and the Tanodbayan, so that our people will know when to go to the Tanodbayan and when to go to the Ombudsman? MR. MONSOD:
Madam President, essentially, the difference lies in one being a prosecutory arm and the other a champion of the citizen who is not bound by legal technicalities of legal forms, but I would like to ask Commissioner Nolledo to explain this in detail. 9

MR. RODRIGO: So, the Ombudsman does not have a prosecutory function nor punitive powers. MR. COLAYCO: None. MR. RODRIGO: All that he relies upon is his persuasive power. MR. COLAYCO: Yes. Persuasive power plus the ability to require that the proper legal steps be taken to compel the officer to comply. MR. RODRIGO:
Yes, but what is meant by "required" is that the Ombudsman cannot compel. 10

Then Commissioner, now a highly respected Member of the Court, Florenz D. Regalado, also remarked: MR. REGALADO:

In connection also with that concern of Commissioner Rodrigo regarding the Ombudsman being merely a duplication, I have here the records of the former Ombudsman to show that one of the reasons he could not function in his administrative or recommendatory capacity was the number of cases for prosecution which took almost all his time. So I believe that there should really be an Ombudsman to take care of the recommendatory, policy-determining, policy-suggesting or administrative aspect of his position. The whole task of prosecution should be left to a regular Tanodbayan. 11

The petitioners hardly persuade us on this matter. While the intention to withhold prosecutorial powers from the Ombudsman was indeed present, 12 the Commission did not hesitate to recommend that the Legislature could, through statute, prescribe such other powers, functions, and duties to the Ombudsman. Paragraph 6, Section 12 of the original draft of the proposed Article on Accountability of Public Officers, which the Committee recommended for incorporation in the Constitution, reads: Sec. 12. The Office of the Ombudsman shall have the following powers, functions and duties: xxx xxx xxx
(6) To exercise such powers and perform such functions or duties as may be provided by Law. 13

As finally approved by the Commission after several amendments, this is now embodied in paragraph 8, Section 13, Article XI (Accountability of Public Officers) of the Constitution, which provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx (8) Promulgate its rules of procedure and exercise such other functions or duties as may be provided by law. (emphasis supplied). Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during interpellation by Commissioner Rodrigo: MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that: The Tanodbayan. . . . shall continue to function end exercise its powers as provided by law, except those conferred on the office of the Ombudsman created under this Constitution. The powers of the Ombudsman are enumerated in Section 12. MR. COLAYCO: They are not exclusive. MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan?

MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. MR. RODRIGO: Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise such powers or perform such functions or duties as may be provided by law." So, the legislature may vest him with powers taken away from the Tanodbayan, may it not? MR. COLAYCO: Yes. MR. MONSOD: Yes. MR. RODRIGO: And it is possible that pretty soon the Tanodbayan will be a useless appendage and will lose all his powers. MR. COLAYCO: No. I am afraid the Gentleman has the wrong perception of the system. We are leaving to the Tanodbayan the continuance of his functions and the exercise of the jurisdiction given to him pursuant to. . . . MR. RODRIGO: Law. MR. COLAYCO: No. Pursuant first to the Constitution and the law which mandated the creation of the office. MR. RODRIGO: Madam President. Section 5 reads: "The Tanodbayan shall continue to function and exercise its powers as provided by law." MR. COLAYCO: That is correct, because it is under P. D. No. 1630. MR. RODRIGO:

So, if it is provided by law, it can be taken away by law, I suppose. MR. COLAYCO: That is correct. MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are "such functions or duties as may be provided by law." The sponsors admitted that the legislature later on might remove some powers from the Tanodbayan and transfer these to the Ombudsman. MR. COLAYCO: Madam President, that is correct. MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see fit may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO: Madam President, what I am worried about is, if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them. MR. MONSOD: I agree with the Commissioner. MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature? MR. MONSOD:
Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman; but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it created the Tanodbayan. 14(emphasis supplied).

xxx xxx xxx MR. MONSOD (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position. The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We do not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. 15(emphasis supplied)

In view of the foregoing, it is evident that the petitioners have not borne out any distinction between "the duty to investigate" and "the power to conduct preliminary investigations"; neither have the petitioners established that the latter remains with the Tanodbayan, now the Special Prosecutor. Thus, this Court can only reject the petitioners' first proposition. At bottom, the second proposition raised by the petitioners in G.R. No. 120422 is that the Office of the Special Prosecutor is not a subordinate agency to the Ombudsman and is, in fact, separate and distinct from the Ombudsman. The petitioners call this Court's attention to the fact that, on one hand, the former is not at all mentioned in Section 5, Article XI of the Constitution, while Sections 6, 8, 9, 10, 11, and 12 thereof only speak of the Ombudsman and his deputies (with the composition of the Office of the Ombudsman enumerated in Section 5). On the other hand, the petitioners note, Section 7 recognizes the continued existence of the Tanodbayan, thereafter known as the Office of the Special Prosecutor. Thus, the petitioners deduce that Section 7 does not imply that the Office of the Special Prosecutor is absorbed by subsumed under the Office of the Ombudsman. 16 By way of elaboration, the petitioners contend further that the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the President, as shown by the following excerpts of the proceedings of the Commission: THE PRESIDENT: May the Chair inquire from the Chairman of the Committee what office would have administrative supervision now over the Tanodbayan? Is there any office that would have administrative supervision over the Tanodbayan, as described in Section 5? MR. ROMULO: Madam President, as the decree now reads, no one has jurisdiction over the Tanodbayan. He may be removed by the President for a cause. THE PRESIDENT:

So he is directly under the Office of the President? MR. ROMULO:

Yes, because it is the President who may remove him for a cause. In effect, he comes under the Office of the President. 17

For these reasons, the petitioners conclude that the inclusion of the Office of the Special Prosecutor as among the offices under the Office of the Ombudsman in Section 3 18 of R.A. No. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman and for Other Purposes") is unconstitutional and void. The contention is not impressed with merit. Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the President. The said statement obviously referred to the Tanodbayan under P.D. No. 1630 note how specific the erstwhile Commissioner was in stating: ". . . as the decree now reads. . . ." Further, in complete contrast to the petitioners' stand, one of the principal reasons for the proposal to withhold prosecutorial powers from the Ombudsman was precisely to remove the office from presidential control. This was explained by then Commissioner Florenz D. Regalado as follows: MR. REGALADO: xxx xxx xxx In other words, Madam President, what actually spawned or caused the failure of the justices of the Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was due to two reasons: First, almost all their time was taken up by criminal cases; and second, since they were under the Office of the President, their funds came from that office. I have a sneaking suspicion that they were prevented from making administrative monitoring because of the sensitivity of the then head of that office, because if the Tanodbayan would make the corresponding reports about failures, malfunctions or omissions of the different ministries, then that would reflect upon the President who wanted to claim the alleged confidence of the people. xxx xxx xxx
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not necessarily so. If he is toothless, then let us give him a little more teeth by making him independent of the Office of the President because it is now a constitutional creation, so that the insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity to render service to Juan dela Cruz. . . . . 19 (emphasis supplied).

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 orsubsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman. Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman.

In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770. Through the said law, the Office of the Special Prosecutor was made an organic component of the Office of the Ombudsman, 20 while the Ombudsman was granted the following powers, 21 among others: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; xxx xxx xxx (10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or herein after provided. Likewise, R.A. No. 6770 authorized the office of the Special Prosecutor, under the supervision and control and upon the authority of the Ombudsman, to: (a) [C]onduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; (b) [E]nter into plea bargaining agreements; and
(c) [P]erform such other duties assigned to it by the Ombudsman. 22 (emphasis supplied)

In fine, this Court holds that the plea to re-examine Zaldivar vs. Sandiganbayan is bereft of merit and deserves no further consideration. II. Before we enter into a discussion of the second principal issue raised in these cases, the corollary issue of whether respondent Casaclang as Deputy Ombudsman for Military Affairs has the authority to conduct a preliminary investigation involving civilian personnel of the Government must first be resolved. In view of Section 6, Article XVI of the Constitution 23 and the law implementing it, R.A. No. 6975, 24 the petitioners, who are officers of the Philippine National Police (PNP), are civilian personnel of the Government. 25 It is thus suggested that the Deputy Ombudsman for Military Affairs does not have jurisdiction over them, for by the description of his office, his authority is or must be confined to the military. At first blush, the suggestion seems logical. The proposal to have a separate Deputy Ombudsman for the military establishment came by way of an amendment by Commissioner Blas Ople. This was introduced during the period of individual amendments at the time the Commission deliberated on the proposed Article on Accountability of Public Officers Commissioner Ople's original idea was to authorize the Ombudsman to designate the said deputy; however, the amendment to the amendment introduced by this writer, who was then a member of the Commission, was to authorize the President to appoint the said deputy. Thus: MR. OPLE: With the indulgence of Commissioner Rodrigo and of the Committee, may I proceed to

read the amendment which is to add a last sentence to Section 11, line 21: THE OMBUDSMAN MAY DESIGNATE A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT, so that the entire Section 11 will now read as follows: "The Ombudsman and his Deputies, as champions of the people, shall act promptly on the complaints filed, in any form or manner, against public officials or employees of the government, including government-owned corporations, agencies or instrumentalities, and shall notify the complainants of the action taken and the results thereof. THE OMBUDSMAN MAY DESIGNATE A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT. May I state a brief reason for this amendment, Madam President. THE PRESIDENT: The Commissioner has five minutes to explain his proposed amendment. MR. OPLE: Thank you. The original Ombudsman was created in Sweden in 1810 and has survived practically unchanged for over 170 years. The military Ombudsman appeared for the first time in history in Norway in 1952 and in West Germany in 1956. In Norway, the military Ombudsman, known as Ombudsmannen for forsvaret, was superimposed on an existing structure of enlisted spokesmen chosen by each unit of the Norwegian Armed Forces. In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association outside the chain of command proposing reformist objectives. They constitute, in fact, an informal grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank[s] and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement or RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El Diablo and other organizations dominated by enlisted men function, more or less, as grievance collectors and as mutual aid societies. This proposed amendment merely seeks to extend the office of the Ombudsman to the military establishment, just as it champions the common people against bureaucratic indifference. The Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance to higher authorities. This deputy will, of course, work in close cooperation with the Minister of National Defense and the Armed Forces of the Philippines' Chief of Staff because of the necessity to maintain the integrity of the chain of command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may not have to fall back on their own informal devices to obtain redress for their grievances. The Ombudsman will help raise troop morale in accordance with a major professed goal of the President and the military authorities themselves. I seek the Committee's kind concurrence to this proposal. xxx xxx xxx THE PRESIDENT:

Commissioner Davide is recognized. MR. DAVIDE: I would have no objection to the proposed amendment, but it should not be on Section 11. It should be placed on Section 6 because if we put it here, the appointing authority will no longer be the President but the Ombudsman, and that is not, I think, the philosophy of the provision. So it should also be covered by the manner by which an appointment may be extended to it. So I would propose that it be transferred principally to Section 6. MR. OPLE: The Committee has no jurisdiction; personally, I have no objection, Madam President. MR. DAVIDE: But I would propose that the wording would be: A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT MAY BE APPOINTED, after "Mindanao" on Section 6, line 16, page 3. MR. OPLE: I accept the amendment, Madam President. THE PRESIDENT: Commissioner Ople has accepted the amendment. How about the Committee? MR. MONSOD: We accept, Madam President. xxx xxx xxx THE PRESIDENT: May we have the amendment now as phrased by the Committee. MR. MONSOD: May we ask Commissioner Davide to restate the amendment, as amended. THE PRESIDENT: Commissioner Davide is recognized. MR. DAVIDE:

Madam President, on line 61 page 3, add a new sentence after the period (.) following "Mindanao" to read as follows: A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT MAY LIKEWISE BE APPOINTED. VOTING THE PRESIDENT: Those in favor of this particular amendment, as amended, please raise their hand. (Several Members raised their hand.) xxx xxx xxx
The results show 22 votes in favor and 11 against; the proposed amendment, jointly submitted by Commissioners Ople and Davide and accepted by the Committee, is approved. 26

The approved amendment is now found in Section 5, Article XI of the Constitution, which reads: Sec. 5. There is hereby created the independent Office of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. (emphasis supplied). The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. On the contrary, a review of the relevant Constitutional provisions reveals otherwise. As previously established, the Ombudsman "may exercise such other powers or perform such functions or duties"27 as Congress may prescribe through legislation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsman's deputies, one being the deputy for the military establishment. 28 In this light, Section 11 of R.A. No. 6770 provides: Sec. 11. Structural Organization. The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its powers and functions shall be vested in the Ombudsman, who shall have supervision and control of the said Office. While Section 31 thereof declares: Sec. 31. Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein provided shall be under his supervision and control. Accordingly, the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. In these cases at bench, therefore, no irregularity attended the referral by the Acting Ombudsman of the Kuratong Baleleng case to respondent Casaclang who, in turn, created a panel of investigators. III We will now address the second principal issue. We do not share the petitioners' view that respondent Casaclang set the case for preliminary investigation and required the

petitioners to file their counter-affidavits without the conduct of a preliminary evaluation of the complaint as required by the Rules, of the Office of the Ombudsman. In the case before us, no evidence to that effect was adduced. On the contrary, as shown by the summary of antecedent facts earlier quoted, the Panel of Investigators submitted its evaluation report on 8 June 1995, and it was only on 14 June 1995 that respondent Casaclang issued the questioned order. Section 2, Rule II of Administrative Order No. 07 of the Office of the Ombudsman (Rules of Procedure of the Office of the Ombudsman), on the process and nature of the evaluation required, reads as follows: Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether it may be (a) dismissed outright for want of palpable merit; (b) referred to respondent for comment; (c) indorsed to the proper government office or agency which has jurisdiction over the case; (d) forward to the appropriate office or official for fact-finding investigation; (e) referred for administrative adjudication; or (f) subjected to a preliminary investigation. It cannot be denied that the evaluation required is merely preliminary in nature and scope, not a detailed inquiry. Likewise, the conduct of such evaluation involves the exercise of discretion which has not been shown to be abused in the instant case. IN VIEW OF THE FOREGOING, these two petitions and the motion to cite Acting Ombudsman Francisco Villa in contempt of court are DENIED for want of merit. This decision is immediately executory. Costs against the petitioners. SO ORDERED. Padilla, Bellosillo and Kapunan, JJ., concur. Hermosisima, Jr., is on leave. Footnotes 1 160 SCRA 843 [1988]. 2 Rollo, 265-271. 3 160 SCRA 31 [1988]. 4 Supra note 1. 5 Paragraph 1, Section 13, Article XI, 1987 Constitution. 6 Sections 10(e) and 17, P.D. No. 1630.

7 Rollo, 402-403. 8 Record of the Constitutional Commission, vol. 2, 265 (hereinafter 2 Record). 9 Id., 268. 10 2 Record, 270. 11 Id., 274. See also, 295-297 for a Longer disquisition on his thesis. 12 Id., 266, 268, 284, 295, and 317, wherein the Commission originally envisioned the adoption of the traditional Ombudsman as known in Europe. 13 2 Record, 264. 14 2 Record, 270-271. 15 Id., 295. 16 Rollo, 17-18. 17 2 Record, 336. 18 It provides: Sec. 3. Office of the Ombudsman. The Office of the Ombudsman shall include the Office of the overall Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for Visayas, the Office of the Deputy for Mindanao, the office of the Deputy for the Armed Forces, and the Office of the Special Prosecutor. The President may appoint the Deputies as the necessity for it may arise, as recommended by the Ombudsman. 19 2 Record, 295-296. 20 Section 3. 21 Section 15. 22 Section 11(4). 23 The Provision reads, in part: Sec. 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character. . . . (emphasis supplied) 24 Entitled, "An Act Establishing the Philippine National Police Under a Reorganized Department of the Interior and Local Government and For Other Purposes," otherwise know as the Department of the Interior and Local Government Act of 1990. 25 See Republic vs. Asuncion, 231 SCRA 211 [1994].

26 2 Record, 317-320. 27 Paragraph 8, Section 13, Article XI, 1987 Constitution. 28 Section 5, Id., Id.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 125296 July 20, 2006

ISMAEL G. KHAN, JR. and WENCESLAO L. MALABANAN, petitioners, vs. OFFICE OF THE OMBUDSMAN, DEPUTY OMBUDSMAN (VISAYAS), ROSAURO F. TORRALBA* and CELESTINO BANDALA**, respondents. DECISION CORONA, J.: This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of whether public respondents Deputy Ombudsman (Visayas) and the Ombudsman have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA) 3019 1(the Anti-Graft and Corrupt Practices Act). In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders.

Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019. In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners' omnibus motion to dismiss. On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the Government Service Insurance System (GSIS).4 Therefore, it became a government-owned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan.5 On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government." The dispositive portion of the Deputy Ombudsman's order read: WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO DISMISS, the same is hereby DENIED and petitioners are hereby ordered to submit their answer within ten (10) days from receipt hereof.6 xxx xxx xxx

Petitioners appealed the order to the Ombudsman. There, they raised the same issues. Treating the appeal as a motion for reconsideration, the Ombudsman dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC, hence, he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's ruling thatQuimpo was applicable to petitioners' case. In this petition for certiorari, with prayer for issuance of a temporary restraining order, petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against them although they were officers of a private corporation and not "public officers."8 In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; (2)Quimpo does not apply to the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law. We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation of RA 3019. JURISDICTION OF THE OMBUDSMAN OVER GOCCS IS CONFINED ONLY TO THOSE WITH ORIGINAL CHARTERS The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2) provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx

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

prevent, and correct any abuse or impropriety in the performance of duties. (italics supplied) xxx xxx xxx

Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners. Quimpo Not Applicable to the Case at Bar Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan had jurisdiction over them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC) acquired its shares. In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here. In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on oil."11 The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that the government acquired the controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS. No governmental functions at all were involved. Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article XIII, Section 6: SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as the Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. (italics supplied) The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer only to those with original charters.12 Petitioners, as then Officers of PAL, were not Public Officers Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied

definitions and concepts are found in different statutes13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the term "public officers": A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. xxx xxx xxx

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

Footnotes
*

In a resolution dated March 24, 1999, the Court dismissed the petition against Rosauro Torralba who died in December 1997. The resolution became final and executory on June 10, 1999. Entry of judgment was accordingly made on the same day.
**

Respondent died on April 23, 1999 per certified true copy of his death certificate furnished by his counsel.Rollo, p. 220.

Approved on August 17, 1960. Rollo, pp. 20-24. Hon. Juan M. Hagad. GSIS converted PAL's outstanding loans into equity shares.

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.

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. 343 Phil. 307 (1997). Supra at note 5. Id. See Juco, supra at note 9.

10

11

12

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). Id., pp. 672-673. Citing F.R. MECHEM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS,

16

1.
17

Supra.

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 118141 September 5, 1997 LEONILA GARCIA-RUEDA, petitioner, vs. WILFRED L. PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable CONRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City Prosecutor, Manila, respondents.

ROMERO, J.: May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated in Ocampo v. Ombudsman 1 which states: In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he

finds it to be insufficient in form and substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form. Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been guilty of negligence but upon their being charged, a series of nine prosecutors toss the responsibility of conducting a preliminary investigation to each other with contradictory recommendations, "ping-pong" style, perhaps the distraught widow is not to be blamed if she finally decides to accuse the City Prosecutors

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 87193 June 23, 1989 JUAN GALLANOSA FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents. J.L. Misa & Associates for petitioner. Lladoc, Huab & Associates for private respondent.

CRUZ, J.: Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United

States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section 253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not sue under the said section. Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in another Order dated February 21, 1988. He then came to this Court in a petition forcertiorari and prohibition to ask that the said orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition, we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required comments from the respondents. In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988 that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone. Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino. In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not "impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a naturalborn citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus Election Code. Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied. It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in

accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC. The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this basic question. The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A. OFFICE OF THE CLERK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA September 23, 1988 TO WHOM IT MAY CONCERN: Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178. Petition No. 280225. Alien Registration No. A23 079 270. Very truly yours,

WILLIAM L. WHITTAKER Clerk by: (Sgd.)

ARACELI V. BAREN

Deputy Clerk This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any convention in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The International Court of Justice held Nottebohm to be still a national of Germany, with which he was more closely connected than with Liechtenstein. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by

naturalization, or by repatriation. While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections in this country, he automatically forfeited American citizenship under the laws of the United States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the Philippines. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officer's entire tenure. Once any of the required qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a foreigner during her term and by her act or omission acquires his nationality, would she have a right to remain in office simply because the challenge to her title may no longer be made within ten days from her proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization was discovered only eight months after his proclamation and his title was challenged shortly thereafter. This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of this country. The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. It is true as the petitioner points out that the status of the natural-born citizen is favored by the Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.

WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected ViceGovernor of the said province once this decision becomes final and executory. The temporary restraining order dated March 9, 1989, is LIFTED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part. Cortes J., concurs in the result.

Separate Opinions GUTIERREZ, JR., J., concurring: I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province. It is an established rule of long standing that the period fixed by law for the filing of a protest whether quo warranto or election contest is mandatory and jurisdictional. 1 As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. 2 The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. 3 The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. 4 However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, 5 the Court should allow a person like respondent Estuye or his league to bring the action. I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. 6Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day period should be applied strictly. The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice.

Separate Opinions GUTIERREZ, JR., J., concurring: I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province. It is an established rule of long standing that the period fixed by law for the filing of a protest whether quo warranto or election contest is mandatory and jurisdictional. 1 As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. 2 The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. 3 The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. 4 However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, 5 the Court should allow a person like respondent Estuye or his league to bring the action. I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. 6Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, 7 I believe that the ten-day period should be applied strictly. The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice. Footnotes Gutierrez, Jr. 1 Ferrer v. Gutierrez and Lucot, 43 Phil. 795 [1922]; and Nisperos v. Araneta Diaz and Flores, 47 Phil. 806 [1925]. 2 Section 253, Omnibus Election Code, B.P. Blg. 881. 3 Municipal Council of Masantol v. Guevarra, 44 Phil. 580 [1923]. 4 Rule 66, Section 1, Rules of Court. 5 Rule 66, Section 2. 6 Section 253, Omnibus Election Code; See Casin v. Caluag, 80 Phil. 758 [1948]. 7 Among them are corrupting voters or election officials with money or other material considerations (Section 68, B.P. 881); committing acts of terrorism to enhance one's

candidacy (id); over spending for election expenses (id); soliciting, receiving, or making prohibited contributions (Sections 89, 95, 96, 97, and 104 of B.P. 881); the use of a void certificate of candidacy (Section 78, id); engaging in partisan political activity outside of the campaign period (Section 80, id); destroying or defacing lawful election propaganda (Section 83, id); using prohibited forms of certificate election propaganda (Section 85, id); unlawful use of mass media (Section 86, id); coercion by a public officer of subordinates to campaign for or against a candidate (Section 261-d, id); using threats and intimidation to force a person to campaign or to prevent him from campaigning for or against a candidate (Section 261 -e, id); electioneering within the prohibited space around or inside a polling place (Section 261 -k, id); use of public funds for certain election purposes (Section 261 u, id); and use of a void certificate of candidacy (Section 78). Under Section 2175 of the Revised Administrative Code, certain persons like ecclesiastics and soldiers in the active service are disqualified from running for elective municipal office.
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SYLLABI/SYNOPSIS

EN BANC

[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents. DECISION
MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows:

Eduardo B. Manzano Ernesto S. Mercado Gabriel V. Daza III

103,853 100,894 54,275[1]

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998,[2] the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELECs Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American

citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.[3] The motion remained pending even until after the election held on May 11, 1998. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in disqualification.[4] Petitioners motion was opposed by private respondent. the case for

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections.[5]

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 88831 November 8, 1990 MATEO CAASI, petitioner, vs. THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents. G.R. No. 84508 November 13, 1990 ANECITO CASCANTE petitioner, vs. THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents. Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508. Montemayor & Montemayor Law Office for private respondent.

GRIO-AQUINO, J.: These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988. G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder. In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987. After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that: The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508). In his dissenting opinion, Commissioner Badoy, Jr. opined that: A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.) In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: ... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo,

G.R. No. 88831.) These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Section 18, Article XI of the 1987 Constitution provides: Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides: SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC). In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case. In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was,"Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Alien Registration Receipt Card. Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.) Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it. An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.) As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS

527). This is in return for the protection given to him during the period of his residence therein. Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility. In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529-530.) Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides: xxx xxx xxx Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.' Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code). Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residen

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 130140 October 25, 1999 PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS represented by MAGTANGGOL C. GUNIGUNDO, PCGG Chairman and ORLANDO C. SALVADOR, as Consultant, Technical Working Group of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, petitioners, vs. HON. ANIANO A. DESIERTO as Ombudsman; JOSE Z. OSIAS; PACIFICO E. MARCOS; EDUARDO V. ROMUALDEZ; FERNANDO C. ORDOVEZA; and JUANITO ORDOVEZA, Members of the Board of Directors of Philippine Seeds, Inc.; CONCERNED MEMBERS OF THE DEVELOPMENT BANK OF THE PHILIPPINES,respondents. DAVIDE, JR., C.J.: The core issue in this special civil action for certiorari is whether public respondent Ombudsman Aniano A. Desierto (hereafter OMBUDSMAN) committed grave abuse of discretion in holding that the offenses with which the other respondents were charged in OMB-0-96-0968 had already prescribed. This case originated as G.R. No. 129763, the docket number given to the Motion for Extension of Time to File Petition for Review filed by the Presidential Commission on Good Government (PCGG). 1 The motion was granted. However, what was filed was a

petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, with the Presidential Ad Hoc Fact-Finding Committee on Behest Loans (hereafter COMMITTEE) as petitioner. The petition was docketed as G.R. No. 130140. Accordingly, G.R. No. 129763 is now deemed functus officio. Initially, the Court dismissed the petition in this case on technical grounds. But, upon petitioner's motion for reconsideration, the petition was reinstated, and the respondents were required to comment on the petition. In its Manifestation (In Lieu of Comment), 2 the Development Bank of the Philippines (DBP) manifested that it would "rel[y] on the evaluation and exercise of the discretionary power conferred on Petitioner in the prosecution of the instant petition." In its Manifestation and Motion 3 of 16 February 1998, the Office of the Solicitor General (OSG) informed the Court that it could not represent the OMBUDSMAN for the following reasons: (a) the Solicitor General is the Vice-Chairman of petitioner COMMITTEE; (b) being an agency of the Government, the COMMITTEE is entitled to be represented by the OSG; and (c) the petition was signed by Associate Solicitor Salvador C. Guevarra, who is presently on detail with the PCGG, and by Commissioner Herminio A. Mendoza of the PCGG, which is also a client of the OSG. The Court then required the OMBUDSMAN to file his own comment, which he did on 11 June 1998. 4 Copies of the resolution requiring comment on the petition sent to the other respondents were returned to sender because the said respondents had "MOVED." Since the challenged resolution and order of the OMBUDSMAN were issued before said other respondents were even required to submit their counter-affidavits, impleading them in this case is not necessary; hence, this case can be resolved without their inclusion as respondents. As culled from the initiatory pleadings and MEMORANDA of the COMMITTEE and the OMBUDSMAN, the undisputed facts are as follows: On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and one representative each from the Office of the Executive Secretary, Department of Finance, Department of Justice, Development Bank of the Philippines, Philippine National Bank, Asset Privatization Trust, Government Corporate Counsel, and the Philippine Export and Foreign Loan Guarantee Corporation as members. The Committee was directed to perform the following functions: 1. Inventory all behest loans; identify the lenders and borrowers, including the principal officers and stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the grant thereof; 2. Identify the borrowers who were granted "friendly waivers," as well as the government officials who granted these waivers; determine the validity of these waivers.
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3. Determine the courses of action that the government should take to recover those loans, and to recommend appropriate actions to the Office of the President within sixty (60) days from the date hereof. On 9 November 1992, President Ramos issued Memorandum Order No. 61 directing the COMMITTEE to "include in its investigation, inventory, and study all non-performing loans which shall embrace both behest and non-behest loans." It likewise provided for the following criteria which might be "utilized as a frame of reference in determining a behest loan," to wit: a. It is undercollateralized. b. The borrower corporation is undercapitalized. c. Direct or indirect endorsement by high government officials like presence of marginal

notes. d. Stockholders, officers or agents of the borrower corporation are identified as cronies. e. Deviation of use of loan proceeds from the purpose intended. f. Use of corporate layering. g. Non-feasibility of the project for which financing is being sought. h. Extraordinary speed in which the loan release was made. xxx xxx xxx Moreover, a behest loan may be distinguished from a non-behest loan in that while both may involve civil liability for non-payment or non-recovery, the former may likewise entail criminal liability. In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated 15 July 1993, 5 the COMMITTEE reported that the Philippine, Seeds, Inc., (hereafter PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of the twenty-one corporations which obtained behest loans. In his instructions handwritten on the cover of the aforementioned Report, President Ramos directed COMMITTEE Chairman Magtanggol C. Gunigundo to, inter alia, "proceed with administrative and judicial actions against the twenty-one firms (out of 21) in this batch with positive findings ASAP." 6 On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn complaint 7 against the Directors of PSI namely, Jose Z. Osias, Pacifico E. Marcos, Eduardo V. Romualdez, Fernando C. Ordoveza, and Juanito Ordoveza; and the Directors of the Development Bank of the Philippines who approved the loans for violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, as amended, which read: Sec. 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: xxx xxx xxx e. Causing any undue injury to any party, including the Government or giving any private party any unwarranted benefit, 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. xxx xxx xxx g. Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. The complaint, later docketed as OMB-0-96-0968, alleged as follows:

4. The evidence submitted to us show that: a) Philippine Seeds, Inc. (PSI) obtained its initial loan guarantee on April 17, 1969 under B/R 2805 (Annex 1, Evidence 3) with an aggregate amount of $3,452,535. or P13,568,463. (P3.93 to $1). . . . Based on the foregoing DBP approved Guarantee Loans, PSI still had a collateral deficiency of P5,444,432, and likewise DBP infused the amount of P3,824,911 as against the corporation's paid-up capital of P2,225,000 only. b) Subsequent loans/guarantees were extended by DBP for the benefit and/or advantage of PSI under the following Board Resolutions: 1) B/R 3353 dated August 13, 1975 (Annex 2, Evidence 4) for the following purposes: (a) DBP to extend a loan of P215,000 at 12% interest per annum for repairs & rehabilitation of the PSI plant within a period of four (4) months from the full release of the amount. (b) DBP to extend a short term of P6 million at 12% interest per annum for its working capital. (c) DBP to assume PSI loans with commercial banks. (d) DBP to restructure PSI existing obligations if after 6 months of trial period, operations proved profitable and viable. (e) DDBP to suspend foreclosure for 10 months. 2) B/R 883 series 1978, (Annex 3, Evidence 9) DBP Board approved a P2.9 million loan for the following purposes: (a) P1.9 million to liquidate PSI's obligation with other creditors. (b) P1.0 million to finance PSI's special projects. (c) DBP initiated PSI foreclosures starting March 1975 but it was not implemented by virtue of then President Marcos' marginal notes dated April 1975 (Annex 4, Evidence

6) and June 1995 (Annex 5, Evidence 7). (d) Pacifico Marcos and Eduardo Romualdez, relatives of the late President Marcos, were the principal stockholders and officers of the subject firm. 5. As a private entity, Philippine Seeds, Inc., did not deserve the concessions given it without sufficient collateral for the loan and adequate capital to ensure not only the viability of its operations but its ability to repay all its loans. In the resolution 8 dated 14 May 1996 and approved on 9 June 1996, the OMBUDSMAN dismissed the complaint in OMB-0-960968 on the ground of prescription. Relying on People v. Dinsay, 9 a case decided by the Court of Appeals, he ratiocinated that since the questioned transactions were evidenced by public instruments and were thus open for the perusal of the public, the prescriptive period commenced to run from the time of the commission of the crime, not from the discovery thereof. Reckoning the prescriptive period from 1969, 1970, 1975, and 1978, when the disputed transactions were entered into, the OMBUDSMAN ruled that the offenses with which respondents were charged had already prescribed. Its motion for reconsideration having been denied by the OMBUDSMAN in the Order 10 of 19 May 1997, the COMMITTEE filed this case raising this sole issue: WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN HOLDING THAT THE PRESCRIPTIVE PERIOD IN THIS CASE SHOULD BE COUNTED FROM THE DATE OF THE GRANT OF THE BEHEST LOANS INVOLVED, AND NOT FROM THE DATE OF DISCOVERY OF THE SAME BY THE COMMITTEE. The COMMITTEE argues that the right of the Republic of the Philippines to recover behest loans as ill-gotten wealth is imprescriptible pursuant to the mandate of Section 15 of Article XI of the Constitution, which provides: The right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or estoppel. Behest loans are part of the ill-gotten wealth which former President Marcos and his cronies accumulated and which the Government through the PCGG seeks to recover. Besides, even assuming ex gratia that the right to file criminal charges against the respondents is prescriptible, the prescriptive period should be counted from the discovery of the crimes charged, and not from the date of their commission. The ruling inDinsay is not applicable to the case at bar. First, it is a decision of the Court of Appeals; hence, it does not establish a doctrine and can only have a persuasive value. Second, it involved a prosecution for estafa in that the accused disposed of his property claiming that it was free from any lien or encumbrance despite the fact that a notice of lis pendens was registered with the Registry of Deeds. The sale, cancellation of the accused's title, and issuance of a new title to the buyer could not have been concealed from the offended parties or their lawyers because these transactions took place when the civil case involving the said property and the offended parties was in progress. Third, Dinsay involved private parties, while the instant case involves the Government and public officers. Fourth, the ruling is not absolute, since no less than this Court in People vs. Monteiro 11 said: [T]he period of prescription for the offense of failure to register with the SSS shall begin from the day of the discovery of the violation if this was not shown at the time of its commission. A contrary view would be dangerous as the successful concealment of an offense during the period fixed for its prescription would be the very means by which the offender may escape punishment. (Emphasis supplied) Also, in People v. Duque, 12 which involved a prosecution for illegal recruitment under Article 38 of the Labor

Code, this Court held: Even if it be assumed arguendo that ordinary prudence required that a person seeking overseas employment ought to check the authority or status of persons pretending to be authorized or to speak for a recruitment or placement agency, the offended parties' failure to do so did not start the running of the prescriptive period. In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at that time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. (Emphasis supplied) Finally, the COMMITTEE asserts that even assuming that the discovery rule does not apply, still, because of the principle of "equitable tolling," prescription has not yet set in for the offenses with which respondents in OMB-0-96-0960 were charged. This principle is based on the doctrine "contra non valentem agere nulla currit praescriptio,"i.e., "no prescription shall run against a person unable to bring an action." The COMMITTEE was unable to bring the action, for the cause therefor was not known or reasonably known to it owing to the fact that (1) the loans, being behest, were concealed; (2) both parties to the loan transactions were in conspiracy to perpetrate the fraud against the State; and (3) the loans were granted at the time then President Marcos was at the threshold of his authority when no one dared question, much less investigate, any of his orders. The OMBUDSMAN takes a different view. For one, he asserts that Section 15 of Article XI of the Constitution is not applicable, since what the COMMITTEE seeks in OMB-0-96-0968 is not to recover the unlawfully acquired wealth from the respondents therein but to hold them criminally liable for violation of R.A. No. 3019. The dismissal of the case is not a bar to the institution of forfeiture proceedings against the concerned former government officials and cronies. For another, the OMBUDSMAN insists that the offenses with which the respondents were charged had already prescribed. As a matter of fact it prescribed in ten years pursuant to the original provision of Section 11 of R.A. No. 3019, which fixed the prescriptive period at ten years. B.P. Blg. 195, which increased the prescriptive period to fifteen years, became effective only on 16 March 1982 and cannot be given retroactive effect; hence, the offenses which might have arisen from the grant of the assailed loans in 1969, 1975 and 1978 prescribed in 1979, 1985 and 1988, respectively. The OMBUDSMAN points to Section 2 of Act No. 3326, which governs prescription of crimes under special laws and which reads as follows: Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof. . . According to him, the computation of the prescriptive period from the date of discovery would only be resorted to if the commission of the crime be not known at the day of the commission. The phrase "if the same be not known" does not mean "lack of actual knowledge," but that the crime "is not reasonably knowable" by reason of the nature of the crime or the environmental circumstances thereof. In the case filed by the COMMITTEE, the crimes alleged to have been committed were "reasonably knowable" because the transac

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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 147227 November 19, 2004

MARIA REMEDIOS ARGANA, DONATA ALMENDRALA VDA. DE ARGANA, LUIS ARGANA, JR., PEREGRINO ARGANA, ESTATE OF GELACIO ARGANA, EUFROCINIO NOFUENTE, AMPARO ARGANA NOFUENTE, JUANITO ROGELIO, MILAGROS ARGANA ROGELIO, MARIA FELICIDAD ARGANA, MARIA DOROTEA ARGANA, REFEDOR SOUTH GOLD PROPERTY MANAGEMENT & DEVELOPMENT CORPORATION,petitioners, vs. REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

TINGA, J.: Before the Court is a Petition for Certiorari assailing the Resolution dated April 11, 2000 and the Order dated February 22, 2001 of the Sandiganbayan, Third Division, in Civil Case No. 0026.1

On July 29, 1987, respondent Republic of the Philippines filed with the Sandiganbayan a Petition for Forfeiture of alleged illgotten assets and properties of the late Maximino A. Argana, who served as Mayor of the Municipality of Muntinlupa2 from 1964 to 1967 and from 1972 until his death in 1985. On October 28, 1998, the Sandiganbayan remanded the case to the Presidential Commission on Good Government (PCGG) for the conduct of an inquiry. In 1990, the case was reactivated in the Sandiganbayan. Petitioners Maria Remedios Argana, Donata Almendrala Vda. De Argana, Luis Argana, Jr., Peregrino Argana, Estate of Gelacio Argana, Eufrocinio Nofuente, Amparo Argana Nofuente, Juanito Rogelio, Milagros Argana Rogelio, Maria Felicidad Argana, Maria Dorotea Argana, and Refedor South Gold Property Management & Development Corporation filed a series of motions, including a Motion to Dismiss on the ground of the lack of authority of the PCGG to institute the case on behalf of respondent. This issue eventually reached this Court and was decided in favor of respondent on September 29, 1994.3 Petitioners, in their Answer, denied that the properties sought to be forfeited by respondent were unlawfully acquired by the deceased Mayor and/or by petitioners. Still, to avoid a protracted litigation, petitioners exerted efforts to settle the case amicably with respondent through the PCGG. After a series of motions were again filed by petitioners, the Sandiganbayan finally set the case for pre-trial on November 26, 1997, but the pre-trial was reset several times in view of the manifestation of the parties that they were in the process of negotiating a compromise. On August 7, 1997, petitioners' offer of compromise was accepted by the PCGG in its Resolution No. 97-180-A.4 Thereafter, the PCGG conducted an evaluation of the properties offered for settlement by petitioners. In a Memorandum dated August 18, 1997, Mauro J. Estrada, Director of the PCGG Research and Development Program, recommended the inclusion of another tract of land5 belonging to petitioners among the properties which would be subject of the compromise. On September 18, 1997, respondent, represented by PCGG Commissioners Reynaldo S. Guiao and Herminio A. Mendoza entered into a Compromise Agreement with petitioners, represented by petitioner Maria Felicidad Argana. Petitioners conveyed, ceded and released in favor of respondent a total of 361.9203 hectares of agricultural land in Pangil and Famy, Laguna, or 75.12% of the properties subject of litigation, in consideration of the dismissal or withdrawal of all pending civil, criminal and administrative cases filed, litigated or investigated by respondent against them. The remainder was distributed as follows: To be retained by the late Mayor Argana's heirs Owned by the Mayor's Brothers and Sisters Foreclosed by Los Baos Rural Bank Owned by Other Persons 9.88% 5.53% 1.24% 8.23% 24.88% 47.78787 hectares 26.6318 hectares 5.9856 hectares 39.64865 hectares 120.05392 hectares6

In a letter dated October 7, 1997,7 the PCGG informed the Office of the Solicitor General (OSG) of the signing of the Compromise Agreement and requested the OSG to file the appropriate motion for approval thereof with the Sandiganbayan. Subsequently, the OSG requested for clarification from the PCGG if the compromise agreement included all the sequestered assets of petitioners subject of litigation. In response to the request, PCGG informed the OSG in a letter dated February 4, 19988 that the properties mentioned in the Compromise Agreement comprise all the sequestered assets subject of litigation, and reiterated that it entered into a compromise agreement with petitioners because it believed that the evidence might not be sufficient to warrant continuing the prosecution of Civil Case No. 0026 and that it is to the best interest of the government to

accept the offer of petitioners.9 On May 27, 1998, then President of the Republic of the Philippines Fidel V. Ramos approved the Compromise Agreement between petitioners and respondent.10 On June 4, 1998,11 the OSG filed with the Sandiganbayan a Motion to Approve Compromise Agreement. Petitioners expressed their conformity to the motion on June 15, 1998. After conducting hearings on the motion, the Sandiganbayan promulgated its Decision on July 31, 1998 approving the Compromise Agreement and rendering judgment in accordance with the terms thereof.12 However, on October 5, 1998, respondent, through the OSG and the PCGG, filed with the Sandiganbayan a Motion to Rescind Compromise Agreement and to Set Aside Judgment by Compromise (Motion to Rescind). Respondent prayed for the rescission of the Compromise Agreement or reformation thereof after a renegotiation with petitioners. Respondent contended that the partition of the properties in the Compromise Agreement was grossly disadvantageous to the government and that there was fraud and insidious misrepresentation by petitioners in the distribution and partition of properties, to the damage and prejudice of the government. According to respondent, there was fraud and insidious misrepresentation because petitioners proposed to divide the propertieswith 75% accruing to the government and the remaining 25% going to petitioners and their other creditorsbased on the total land area of the properties instead of on their value. As a result, the government obtained only Three Million Six Hundred Twenty Thousand Pesos (P3,620,000.00) worth of land, while petitioners received almost Four Billion Pesos (P4,000,000,000.00) worth. Petitioners filed an Answer to the Motion to Rescind and contended that the July 31, 1998 Decision of the Sandiganbayan could no longer be annulled because it had already become final and executory; that respondent's counsel had no authority to file the motion; and that the motion was defective because it did not include a Certification against Forum-Shopping. They also argued that there was no agreement to divide the properties by a 75% to 25% ratio in favor of the government. What they proposed to cede to the government by way of compromise were their properties in Pangil covered by Transfer Certificate of Title (TCT) Nos. T-4044 and T-4009 and those in Famy, Laguna covered by TCT Nos. T-3813 to T-3817 and T-4104, 4106 and 4108, not a specific percentage of the properties subject of litigation.13 In its Resolution dated September 22, 1999, the Sandiganbayan treated the Motion to Rescind as a petition for relief from judgment under Rule 38 of the 1997 Rules on Civil Procedure and set the motion for hearing. On April 11, 2000, the Sandiganbayan issued a Resolution granting respondent's motion to rescind and setting aside the Decision dated July 31, 1998. The Sandiganbayan held that the Motion to Rescind was filed on time on October 5, 1998, the working day immediately following October 4, 1998, which was a Sunday and the 60th day after respondent received the July 31, 1998 Decision on August 5, 1998. It also ruled that the presumption that the OSG had authority to file the Motion to Rescind was not overcome by petitioners. Under Republic Act No. 1379,14the filing and prosecution of cases for forfeiture of unlawfully acquired property is a function of the OSG. Petitioners failed to show proof that pleadings or motions filed by lawyers of the government or the PCGG must first be approved by the PCGG En Banc and by the President of the Republic. The Sandiganbayan likewise held that respondent was not required to file a certification against forum-shopping because the motion to rescind was not an initiatory pleading.15 With respect to the issue of fraud, it held that there was extrinsic fraud in the execution of the Compromise Agreement. The Sandiganbayan stated: The values were deliberately omitted to make it appear that the Compromise Agreement adheres to the 75%25% ratio broadly adopted by the PCGG in compromising cases of ill-gotten wealth. It was this 75%-25% mode of compromise, with the greater share of 75% going to the government that misled the Court to believe, as We did believe, that the Compromise Agreement was fair, reasonable and advantageous to the Government. What was projected to be a 75%-25% ratio was in reality a 00.15%-99.85% ratio, with 99.85% going to the

Arganas. This is unconscionable and immoral. And since it results in a transaction grossly disadvantageous and immoral to the government, it is against the law as being violative of Section 3(g) of Republic Act 3019. In the instant case, fraud of an extrinsic character exists because the representatives of plaintiff Republic in the PCGG connived with defendants in hiding the assessed or market values of the properties involved, so as to make it appear that the Compromise Agreement adhered to the 75%-25% ratio adopted by the PCGG in entering into compromise of cases involving the recovery of ill-gotten wealth. Through their infidelity, those in the PCGG who handled or were closely involved with the case during the last days of the previous administration fraudulently gave the Compromise Agreement a semblance of fairness and official acceptability. They sold plaintiff Republic down the river by entering into an agreement grossly disadvantageous to the government. For while plaintiff Republic got 00.15% (00.15074) of the estimated value of all the properties involved in this case, defendants almost ran away with 99.85% (99.84526) of their value. This is patently unfair. It is no compromise but a virtual sell-out. It could not have been pulled off without the connivance or collusion of those responsible for the case in the PCGG. Instead of protecting the interest of the government, they connived at its defeatalmost.16 Petitioners filed a Motion for Reconsideration dated May 9, 2000 and a Supplement to said motion dated May 30, 2000. Petitioners also filed an Urgent Motion for Voluntary Inhibition dated May 18, 2000 praying that the members of the Third Division of the Sandiganbayan voluntarily inhibit themselves from hearing and resolving the petitioners' pending motions. On February 22, 2001, the Sandiganbayan issued two Orders, one denying petitioners' motion for reconsideration,17 and the other, denying the motion for voluntary inhibition.18 Hence, petitioners filed the present petition on April 27, 2001. Respondent filed its Comment on October 22, 2001. On November 12, 2001, the Court issued a Resolution giving due course to the petition and requiring the parties to submit their respective memoranda.19 Respondent filed its Memorandum on January 29, 2002. Petitioners filed theirs on February 26, 2002. In their respective memoranda, the parties reiterated the arguments in their earlier pleadings. Specifically, petitioners raise the following arguments: (A) The Sandiganbayan (Third Division) denied Petitioners their right to substantive and procedural due process when it refused to voluntarily inhibit itself from further hearing the instant case. (B) The PCGG lawyers had no authority to ask for the rescission of the subject Compromise Agreement without the consent of the PCGG En Banc and the President of the Republic of the Philippines. (C) The Motion to Rescind, which was treated by the Sandiganbayan (Third Division) as a Petition for Relief under Rule 38 of the Rules of Court, is fatally defective because 1. It was not filed by a party to the case, i.e., it was filed by counsel without the client's authority. 2. It was filed out of time. 3. It was filed sans any supporting Affidavit of Merit.

4. It lacked the required Certification on Non-Forum Shopping. (D) There is no factual or legal basis for the finding of fraud by the Sandiganbayan (Third Division). (E) Upon approval of the Compromise Agreement, the Sandiganbayan (Third Division) lost jurisdiction over the case, including the authority to rescind said Compromise Agreement and to set aside the judgment based thereon. (F) The Sandiganbayan (Third Division) lacked authority to alter a contract by construction or to make a new contract for the parties. (G) Since the Compromise Agreement had already been implemented, rescission cannot be availed of.20 Petitioners contend that the members of the Third Division of the Sandiganbayan should have inhibited themselves from resolving petitioners' motion for reconsideration because from the tenor of the April 11, 2000 Order of the court granting respondent's motion to rescind, it was evident that the Sandiganbayan had already prejudged the properties subject of litigation as having been unlawfully acquired.21 Petitioners likewise assert that the property value of a property offered for the amicable settlement of a case is not always material in determining the validity of a compromise agreement. They point out that what impelled the PCGG to enter into a compromise agreement with them was PCGG's perception that its evidence against petitioners was weak and might not be sufficient to justify maintaining the case against them.22 In addition, petitioners insist that the Motion to Rescind which was treated by the Sandiganbayan as a petition for relief from judgment under Rule 38 is fatally defective for (i) lack of authority of respondent's lawyers to file the same; (ii) having been filed out of time; (iii) non-submission of an Affidavit of Merit; and (iv) non-submission of a Certification against Forum-Shopping.23 It is argued by petitioners that the Sandiganbayan should have denied respondent's Motion to Rescind outright for having been filed without authority from the PCGG En Banc and the President of the Republic, both of whom earlier approved and authorized the execution of the Compromise Agreement. According to petitioners, after final judgment has been rendered in a case, an attorney has no implied authority from his client to seek material or substantial alterations or modifications in such judgment.24 Petitioners claim that the Motion to Rescind was filed only on October 5, 1998, or beyond sixty (60) days from the time the Sandiganbayan promulgated its July 31, 1998 Decision approving the Compromise Agreement.25 In support of their petition, petitioners cite Section 3 of Rule 38 which requires that the petition for relief be filed within sixty (60) days after the party seeking the relief learns of the judgment or final order to be set aside, and not more than six (6) months after such judgment or final order was entered. They also invoke the case of Samonte v. Samonte26 where the Court held that a judgment upon compromise is deemed to have come to the knowledge of the parties on the very day it is entered.27 It is further argued by petitioners that the Sandiganbayan's finding that the settlement between petitioners and respondent was attended by fraud has no factual or legal basis. Petitioners point out that the property values cited by respondent in its Motion to Rescind were based solely on the estimates of the PCGG lawyers and no evidence of the valuation of the properties were presented before the Sandiganbayan to establish fraud. They also contend that the Sandiganbayan had no legal basis for taking judicial notice of the fact that agricultural land in rural areas such as Famy and Pangil, Laguna is much cheaper and is usually sold by the hectare, while land in Metro Manila and in nearby municipalities such as Muntinlupa is more valuable and sold per square meter. Petitioners insist that knowledge of the valuation of property is not a condition sine qua non for the validity of a compromise agreement.28 Petitioners also assert that the Sandiganbayan did not have jurisdiction to annul the Compromise Agreement because its July 31, 1998 Decision had already become final and executory. Moreover, as a contract validly entered into by the parties, the

Compromise Agreement had binding effect and authority on the parties thereto even if it were not judicially approved.29 Petitioners likewise contend that the Sandiganbayan cannot alter the Compromise Agreement which is a valid and binding contract between themselves and respondent and impose the additional requirement that "the moneys, properties or assets involved in the compromise must be fully disclosed and described not only as to the number or area (in case of real properties) but also as to their exact location, classification, appraised and fair market value, liens and encumbrances, whether titled or not, etc., so as to leave no room for doubt that all the parties, the Court and the public know exactly what each party is giving or taking away, and under what specific terms and conditions."30 According to them, the imposition of this requirement would be beyond the scope of the Sandiganbayan's authority.31 Lastly, petitioners argue that the Compromise Agreement can no longer be rescinded because it had already been implemented. In support of this argument, petitioners claim that on September 22, 1997, or four days after the signing of the agreement, they delivered to the PCGG the original TCTs of the properties ceded to respondent under the agreement.32 Respondent, through the OSG, contends that the Sandiganbayan's April 11, 2000 Resolution which granted the motion to rescind the Compromise Agreement and set aside its July 31, 1998 Decision cannot be the proper subject of a Petition for Certiorari. According to respondent, petitioners were not without any other remedy from the adverse ruling of the Sandiganbayan, and they should have gone to trial and reiterated their special defenses.33 Respondent also maintains that the Sandiganbayan did not err in denying petitioners' motion for voluntary inhibition of its members because petitioners' allegations of partiality and bias were not supported by clear and convincing evidence.34 It is also argued by respondent that there is no rule or law requiring that pleadings or motions filed by lawyers of the government or the PCGG must first be approved by the PCGG En Banc and by the President of the Republic.35 Anent the alleged procedural infirmities in the filing of the Motion to Rescind, respondent asserts that it complied with the reglementary period for the filing of a petition for relief from judgment under Rule 38 and that it is not an initiatory pleading which is required to be accompanied by a Certification against Forum-Shopping.36 Respondent disagrees with the contention of petitioners that the Sandiganbayan already lost jurisdiction over the case when it rendered its Decision on the Compromise Agreement on July 31, 1998 considering that the decision is immediately executory since there is no appeal from such judgment. According to respondent, the Rules of Court does recognize the jurisdiction of the court which rendered a decision over a petition for relief from the same decision, and does not distinguish whether the judgment is based on the evidence presented or on a compromise agreement. Moreover, as an exception to the general rule that the court which rendered judgment on the compromise cannot modify such compromise, the court may order modifications thereon when the parties consent to such modification or when there is a hearing to determine the presence or absence of vitiated consent.37 Respondent adds that the Sandiganbayan did not make a new contract for the parties but simply declared their Compromise Agreement null and void with the net effect of continuing the case from where it left off.38 Respondent insists that a compromise agreement which is unconscionable, shocking to the mind and contrary to law and public policy, such as that entered into by it with petitioners, is null and void. A void compromise agreement vests no rights and creates no obligations. Considering that the compromise agreement sought to be declared void in this case is one which is prejudicial to the government, it is the Court's duty to strike it down as null and void.39 It is argued by respondent that while it did not present additional evidence after it filed the Motion to Rescind, it submitted the motion on the basis of all the verified pleadings and papers on record. Respondent likewise claims that the Sandiganbayan did not err in taking judicial notice of the fact that agricultural lands in the provinces, such as the lands titled in petitioners' names in Famy and Pangil, Laguna, are much cheaper than lands in urban areas such as those in Muntinlupa City. Respondent insists that such fact is a matter of public knowledge and may be taken judicial notice of under Section 1, Rule 129 of the Revised Rules

of Court.40 Respondent also points out that petitioners expressly admitted in their Answer to the Motion to Rescind that the value of the properties which they ceded to respondent under the Compromise Agreement is less than the value of the properties retained by them.41 Respondent claims that there was fraud of an extrinsic character because its representatives in the PCGG connived with petitioners in concealing the assessed or market values of the properties subject of the Compromise Agreement to make it appear that the latter adhered to the 75%-25% ratio adopted by the PCGG in entering into compromise of cases involving the recovery of ill-gotten wealth. It is pointed out by respondent that the OSG was in fact initially reluctant to file the motion for approval of the compromise agreement with the Sandiganbayan because the Compromise Agreement only mentioned the areas of the properties but conspicuously failed to mention the property values thereof. Respondent explained: On October 7, 1997, the PCGG forwarded to the OSG a copy of the Compromise Agreement between the Republic and the Arganas in SB Civil Case No. 0026, with a request that the OSG file a motion with the Sandiganbayan for the approval of the said Compromise Agreement. On November 7, 1997, in reply to the letter of PCGG, the OSG with then Solicitor General Silvestre H. Bello III as signatory, wrote the PCGG requesting it to submit to the OSG clarification on the provision in the compromise agreement that the properties mentioned therein comprise all the sequestered assets subject of the litigation considering that in the petition filed by the Republic, it is alleged that the late mayor Argana acquired no less than 251 OCTs/TCTs in Muntinlupa and the neighboring towns plus some other ill-gotten properties. The OSG likewise opined that the Compromise Agreement must first be submitted to the President for his approval before submitting it to the Sandiganbayan. On February 10, 1998, the OSG received a reply from the PCGG, through Commissioner Herminio Mendoza, reiterating that the PCGG has decided to enter into the compromise agreement because it believes that the evidence may not be sufficient to warrant continuing prosecution of Civil Case No. 0026 against the Arganas. With respect to OSG's request for clarification, the PCGG furnished the OSG a copy of the report conducted by the PCGG Research and Development Department whereby it is stated that there are 324 OCTs/TCTs evaluated representing real properties of the late Mayor Argana with a total land area of 481.77422 hectares out of which the Republic will get 361.9203 hectares or 75.12% of the total land area under the Compromise Agreement. No mention, however, was made as to the value of the properties to be ceded to the Republic and the properties to be retained by the Arganas. On March 2, 1998, the OSG, through then Solicitor General Romeo C. dela Cruz, again wrote the PCGG reiterating its previous position that before submitting the compromise agreement to the Sandiganbayan for approval, it must first be submitted to the President of the Philippines for his approval as required in par. 6 of the Compromise Agreement. The OSG also reiterated its request for clarification regarding the properties covered by the compromise agreement as the Report submitted to it made mention of 361.9203 hectares or 75.12% out of the total land area of 481.71422 hectares to be ceded to the Republic, and 24.88% to be retained by the Arganas, no mention whatsoever was made of the kind of land, location and value of the respective areas. On June 2, 1998, the OSG received a letter dated May 29,1998 from then Commissioner Herminio A. Mendoza forwarding it copy of the approval by then President Fidel Ramos of the Compromise Agreement. With respect to its query, it was stated therein that the PCGG is unable to determine the value of the land to be ceded to the Republic and those to be retained by the Arganas because of the big number of the parcels of the land located mainly in Muntinlupa, Metro Manila and Laguna and/or the lack of available records showing their respective values for tax purposes. The PCGG reiterated their request that the OSG file with the Sandiganbayan in SB Civil Case No. 0026 a motion for the approval of the compromise agreement. Obviously, through such a scheme, those in the PCGG then who handled or were involved with the case fraudulently gave the Compromise Agreement a semblance of fairness and official acceptability, but in truth, it

was grossly disadvantageous to the government. The motion to approve compromise agreement was filed by the OSG out of courtesy as the PCGG was able to get the approval of then Pres. Fidel V. Ramos but not because it (OSG) totally approved the same after an independent evaluation of the report. 42 (Emphasis in the original.) Finally, respondent argues that the Compromise Agreement had not yet been implemented. Although petitioners delivered the TCTs covering the lots ceded to respondent under the terms of the compromise on September 22, 1997, such delivery could not have the effect of implementation of the Compromise Agreement because the contract was submitted to the Sandiganbayan for approval only on June 15, 1998. The Compromise Agreement expressly required that in order for it to be effective, it must be approved by the President of the Republic and of the Sandiganbayan.43 The issues for the Court's resolution are as follows: 1) Whether a petition for certiorari is the proper remedy; 2) Whether the OSG and the PCGG lawyers have authority to file the Motion to Rescind on behalf of respondent; 3) Whether the Motion to Rescind, which was treated by the Sandiganbayan as a petition for relief, complied with the requirements of Rule 38 of the 1997 Rules of Civil Procedure; 4) Whether the Sandiganbayan acted with grave abuse of discretion in granting the Motion to Rescind and in setting aside its Decision dated July 31, 1998; and 5) Whether the members of the Sandiganbayan's Third Division should have inhibited themselves from resolving petitioners' Motion for Reconsideration. The Court shall first tackle the first, second, third and fifth issues since these involve procedural matters. The Court does not agree with respondent's contention that a petition for certiorari is not the proper remedy to assail the February 22, 2001 Order of the Sandiganbayan which affirmed its earlier directive to set the case against petitioners for pre-trial following the annulment of its judgment by compromise agreement. A special civil action for certiorari may be instituted when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.44 The Court has previously held that an order setting the case for further proceedings, issued after the original judgment rendered pursuant to a compromise agreement is set aside, is an interlocutory order and is therefore not appealable.45 Since no appeal is available against such an order, the proper remedy to assail it is a special civil action for certiorari. The remedy taken by petitioners is therefore proper. Petitioners' contention that the Motion to Rescind filed by the lawyers of the PCGG and of the OSG should have been treated by the Sandiganbayan as a mere scrap of paper because the motion was filed without the authority of the PCGG En Banc and of the President of the Republic has no legal basis. There is no requirement under the law that pleadings and motions filed by lawyers of the government or the PCGG must first be approved by the PCGG En Banc and by the President of the Philippines. More importantly, R.A. No. 1379 expressly authorizes the OSG to prosecute cases of forfeiture of property unlawfully acquired by any public officer or employee.46 It must be remembered that it was the OSG which filed Civil Case No. 0026 for the forfeiture of petitioners' allegedly ill-gotten wealth, and that the Compromise Agreement between petitioners and respondent was an amicable settlement of that case. By filing an action for rescission of the Compromise Agreement based on extrinsic fraud, the OSG was merely performing its legal duty to recover the wealth purportedly amassed unlawfully by the late Mayor Argana during his terms as Mayor of Muntinlupa. The Motion to Rescind was filed precisely because the PCGG, as respondent's authorized representative in the compromise, discovered that the execution of the Compromise Agreement was attended by fraud and sought the help of the OSG which in turn is the duly authorized government agency to represent respondent in forfeiture cases under R.A. No. 1379. Hence, the Sandiganbayan correctly upheld the authority of the OSG, assisted by the PCGG, in filing the

Motion to Rescind. The Court also finds that there was no grave abuse of discretion on the part of the Sandiganbayan in granting the Motion to Rescind, which it treated as a petition for relief from judgment under Rule 38 of the 1997 Rules on Civil Procedure. Section 3 thereof prescribes the periods within which the petition for relief must be filed: Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken, and must be accompanied with affidavits showing the fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be. The Court has previously held that as applied to a judgment based on compromise, both the sixty (60)-day and six (6)-month reglementary periods within which to file a petition for relief should be reckoned from the date when the decision approving the compromise agreement was rendered because such judgment is considered immediately executory and entered on the date that it was approved by the court.47 Applying the foregoing rule to the present case, the sixty (60)-day period should be counted from July 31, 1998, the date of the Sandiganbayan Decision granting the Motion to Approve Compromise Agreement. The sixtieth day from July 31, 1998 is September 29, 1998. The Motion to Rescind was filed by the OSG only on October 5, 1998, clearly several days after the sixtieth day from the rendition of the July 31, 1998 Decision. This notwithstanding, the Court finds that no grave abuse can be ascribed to the Sandiganbayan in admitting the Motion to Rescind as a petition for relief was timely filed. Although as a general rule, the party filing a petition for relief must strictly comply with the sixty (60)-day and six (6)-month reglementary periods under Section 3, Rule 38,48 it is not without exceptions. The Court relaxed the rule in several cases49 and held that the filing of a petition for relief beyond the sixty 60-day period is not fatal so long as it is filed within the six (6)-month period from entry of judgment.50 The Court notes that the filing of the Motion to Rescind on October 5, 1998 was indeed seven days beyond the sixty 60-day period but still well within the six (6)-month period from entry of judgment. Moreover, the case involves an alleged fraud committed against the Republic, and thus justifies the liberal interpretation of procedural laws by the Sandiganbayan. Petitioners' claim that respondent failed to attach an affidavit of merit to its Motion to Rescind is belied by the record of the case. Petitioners in fact attached, as Annex "N" of their Petition for Certiorari, a copy of the respondent's Motion to Rescind. The Affidavit of Merit signed by Dennis M. Taningco, the counsel of the PCGG in Civil Case No. 0026, was attached to the Motion to Rescind. In any case, the Court in Mago v. Court of Appeals51held that the absence of an affidavit of merit does not always result in the denial of the petition for relief, so long as the facts required to be set out in the affidavit appear in the verified petition. The oath which forms part of the petition elevates it to the same category as an affidavit.52 Neither was it necessary for respondent to attach a Certification against Forum-Shopping to the Motion to Rescind. As correctly held by the Sandiganbayan, the Motion to Rescind, which in effect was a petition for relief, is not an initiatory pleading which requires the inclusion of a Certification against Forum-Shopping. Section 2, Rule 38 requires that a petition for relief must be filed with the court which rendered the judgment or order sought to be set aside, and in the same case wherein the judgment or order was rendered. If the court finds that the allegations in the petition for relief are true, it shall set aside the judgment and try the principal case upon the merits as if a timely motion for new trial had been granted.53 Clearly, then, a petition for relief is not an initiatory pleading in a new case which would require the filing by the petitioner therein of a Certification of Non- Forum Shopping. The Court also finds no abuse of discretion by the Sandiganbayan in denying petitioners' Urgent Motion for Voluntary Inhibition. As explained in Gutang v. Court of Appeals,54 the import of the rule on voluntary inhibition is that the decision of a judge on

whether or not to inhibit is left to his or her sound discretion and conscience, based on his or her rational and logical assessment of the case where the motion for inhibition is filed. It implies that in addition to pecuniary interest, relationship, or previous participation in the matter under litigationwhich are grounds for mandatory inhibition under the first paragraph of Section 1, Rule 137 of the Revised Rules of Courtthere might be other causes that could diminish the objectivity of the judge, thus warranting his or her inhibition. Petitioners' claim of bias and partiality on the part of the Sandiganbayan justices who issued the April 11, 2000 Resolution, evaluated in light of the resolution itself, is evidently more imagined than real. To say, as is petitioners' wont, that a judge who throws out a party's motion in the language employed by the Sandiganbayan in the questioned Resolution is necessarily prejudiced, is to be indiscriminate and precipitate. Petitioners' assertion that the April 11, 2000 Resolution was harshly worded and evinced prejudgment of the case in respondent's favor is easily disproved by a reading of the Resolution in its entirety. As will be discussed hereafter, the Sandiganbayan's pronouncement that the Compromise Agreement was grossly disadvantageous and prejudicial to the government is supported by the facts on record. In charging the Sandiganbayan with forejudgment when it said that "all it takes to prove the case is evidence that the properties are manifestly out of proportion to the late Mayor Maximino A. Argana's salary and to his other lawful income and other legitimately acquired income,"55 petitioners have taken the statement out of context. The Sandiganbayan made the statement in relation to its bewilderment as to why the PCGG expressed difficulty in prosecuting the case against the late Mayor Argana in spite of the presumption regarding unexplained wealth in Section 8 of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act). The Sandiganbayan therefore had legal and factual grounds to deny petitioners' motion for inhibition. Anent the propriety of the Sandiganbayan's nullification of the Compromise Agreement on the ground of extrinsic fraud, the Court holds that no error nor grave abuse of discretion can be ascribed to the Sandiganbayan for ruling that the execution of the Compromise Agreement was tainted with fraud on the part of petitioners and in connivance with some PCGG officials. A circumspect review of the record of the case reveals that fraud, indeed, was perpetuated upon respondent in the execution of the Compromise Agreement, the assessed or market values of the properties offered for settlement having been concealed from the reviewing authorities such as the PCGG En Banc and even the President of the Republic. The discussion of the Sandiganbayan on the nature and extent of the fraud perpetuated upon respondent in the execution of the Compromise Agreement is clear and convincing: Noticeable from the documents submitted to the court after the decision approving the Compromise Agreement was promulgated is the fact that only the percentage of sharing based on area was mentioned and brought to the attention of the PCGG en banc and the Solicitor General. The value of the properties was never, and not even once, mentioned. Thus, in the Memorandum of Director Mauro J. Estrada of the PCGG Research and Development Department to the PCGG Chairman, dated August 18, 1997, the following exposition appears: "12. On July 10, 1996, the Arganas submitted a proposal for Compromise Agreement (copy attached, per Annex "J") that would cede by donation about 231 hectares of agricultural lands to the government, Xerox copies of nine (9) TCTs attached therewith, enumerated as follows: "TCT No.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 87977 March 19, 1990 ILUMINADO URBANO and MARCIAL ACAPULCO, petitioners, vs. FRANCISCO I. CHAVEZ, RAMON BARCELONA and AMY LAZARO-JAVIER, respondents. G.R. No. 88578 March 19, 1990 NEMESIO G. CO, petitioner, vs. REGIONAL TRIAL COURT OF PASIG (BRANCH 165), THE OFFICE OF THE SOLICITOR GENERAL and FRANCISCO I. CHAVEZ, respondents. Taada Vivo & Tan and Benjamin C. Santos Law Office for petitioner in 88578.

GANCAYCO, J.: Can the Office of the Solicitor General represent a public officer or employee in the preliminary investigation of a criminal action

against him or in a civil action for damages against him? This is the principal issue in these two consolidated Petitions. G.R. No. 87977 Sometime in 1988, the petitioners in G.R. No. 87977, namely, Iluminado Urbano and Marcial Acapulco, instituted a criminal case against Secretary Luis Santos of the Department of Local Government as well as Sectoral Representatives Pacifico Conol and Jason Ocampos, Jr. of the Sangguniang Panlungsod of Tangub City, for alleged violation of the provisions of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The complaint against them was filed with the Office of the Ombudsman and was docketed as OSP Case No. 88-02780. The Office of the Solicitor General, through Solicitor General Francisco I. Chavez, Assistant Solicitor General Ramon A. Barcelona and Solicitor Amy C. Lazaro-Javier, entered its appearance as counsel for the said respondents as far as the preliminary investigation of the case is concerned. By way of a special civil action for prohibition filed with this Court, the said petitioners seek to enjoin the Solicitor General and his associates from acting as counsel for the said respondents in the course of the preliminary investigation. The said petitioners submit that in the event that the corresponding information is filed against the said respondents with the Sandiganbayan and a judgment of conviction is rendered by the said court, the appearance of the Office of the Solicitor General on behalf of the said respondents during the preliminary investigation will be in conflict with its role as the appellate counsel of the People of the Philippines. In its Comment filed on June 13, 1989, the Office of the Solicitor General manifested that the issue raised by the petitioners had been squarely resolved in favor of the said Office in Anti-Graft League of the Philippines, Inc. v.Hon. Ortega 1 and Solicitor General v. Garrido. 2 G.R. No. 88578 On December 29, 1987, the petitioner in G.R. No. 88578, namely, Nemesio G. Co, filed an Amended Complaint for damages against Solicitor General Francisco I. Chavez, the Businessworld Publishing Corporation, Raul L. Locsin and one John Doe. The Amended Complaint was filed with Branch 165 of the Regional Trial Court in Pasig, Metro Manila and was docketed as Civil Case No. 55379. The Honorable Milagros V. Caguioa was the presiding judge therein. In sum, the Amended Complaint alleged, inter alia, that the defendant Chavez knowingly, willfully and maliciously published and/or caused to be published certain defamatory imputations against the petitioner in an article which appeared in the December 4, 1987 issue of Business World, a periodical publication in Metro Manila, and that he caused the publication thereof by way of an interview characterized by bad faith and actual malice. The petitioner also alleged that the defamatory remarks impute that he was a close associate of former President Ferdinand Marcos and his daughter Imee Marcos-Manotoc and that he was involved in some anomalous transactions relating to the funds of the national government during the time that President Marcos was in office. It appears that at the time of the publication of the questioned article, Solicitor General Chavez was the counsel of the Presidential Commission on Good Government (PCGG), the government agency responsible for the investigation of alleged graft and corrupt practices relating to the former President, his relatives and his close associates. On February 11, 1988, the private defendants Businessworld Publishing Corporation and Raul L. Locsin filed a joint Motion to Dismiss. On February 12, 1988, the Office of the Solicitor General sought an extension of time to file the required responsive pleading. On March 14, 1988, the said Office filed a Motion to Dismiss on behalf of Solicitor General Chavez. Thereafter, the trial court set the case for oral argument on June 23, 1988. During the scheduled oral argument, the counsel of the petitioner objected to the appearance of the Office of the Solicitor General on behalf of Solicitor General Chavez. The trial court issued an Order suspending the proceedings and instructed the parties to submit their respective positions on the propriety of the appearance of the said Office for the Solicitor General himself. The parties complied with the instructions of the trial court.

By way of a Motion seeking the disqualification of the Office of the Solicitor General to act as counsel of Solicitor General Chavez, the petitioner manifested to the trial court that he is suing the Solicitor General in his personal capacity for acts which he committed beyond the scope of his authority and as such he cannot be represented by the said Office in the civil suit instituted with the trial court. 3 On the other hand, the Office of the Solicitor General manifested that the objection raised by the petitioner is an afterthought on account of its belated character, and that this objection notwithstanding, it is authorized to represent any public official even if the said official is sued in his personal capacity pursuant to the unconditional provisions of Presidential Decree No. 478 which defines the functions of the said Office, as well as Executive Order No. 300 issued on July 26, 1987 which made the said office an independent agency under the Office of the President of the Philippines. 4 In support of this contention, the said Office cited the pronouncement of this Court in Anti-Graft League of the Philippines, Inc. 5 The said office also maintained that the cause of action against the Solicitor General is for acts committed by him in his official capacity, i.e., as legal counsel of the PCGG under Executive Order No. 14, series of 1986, and that the assailed actuations of a public official are presumed to have been done in the lawful performance of his duties. 6 In support thereof, the said Office cited the ruling of this Court in Peralta v. Firme. 7 In addition to the arguments above, the Office of the Solicitor General argued that public policy militates against the disqualification of the said Office from representing the Solicitor General in his capacity as a public official because, if it where the other way around, public officials will hesitate to perform their official functions for fear of being haled to court by almost anybody for the purpose of accounting for official acts, not to mention the trouble of having to hire a private lawyer at his own expense in order to defend himself. 8 The petitioner submitted his Reply thereto, alleging therein, among others, that the argument of the Solicitor General is untenable inasmuch as the expression of his views by way of an interview subsequently featured in a newspaper article is not an official function of the Solicitor General and that the jurisprudence cited by the Office of the Solicitor General opposes the position it had taken. 9 In an Order dated November 9, 1988, the trial court denied the Motion of the petitioner for lack of merit. 10 The petitioner sought a reconsideration of the Order. On the other hand, the Office of the Solicitor General opposed the reconsideration sought by the petitioner. 11 The petitioner filed a Reply to the opposition on the part of the said Office 12 which, in turn, filed a Rejoinder to the Reply. 13 In another Order dated May 26, 1989, the trial court denied the reconsideration sought by the petitioner. The pertinent portion of the said Order is as follows
After a careful study, assessment and dissertation of the grounds, arguments advanced by the parties in their respective pleadings now under consideration, as well as the applicable laws and jurisprudence cited therein, the Court has arrived at the inescapable conclusion, and so holds that the plaintiff failed to satisfactorily convince the Court that the Office of the Solicitor General cannot and/or does not have the authority to represent the defendant Francisco I. Chavez in this case, for the simple reason that it is indisputable that at the time said defendant allegedly made the malicious imputations against the plaintiff, he was then and still is the incumbent Solicitor General, and at the same time the counsel for the Presidential Commission on Good Government or PCGG. 14

Thus, the Order of the trial court dated May 26, 1989 is challenged before this Court on the ground that the same amounts to a grave abuse of discretion amounting to lack of jurisdiction on the part of the trial court. 15 The petitioner now asks the Court to order the Office of the Solicitor General to desist from representing the Solicitor General in the civil suit for damages. On August 21, 1989, the Office of the Solicitor General filed its Comment on the Petition, reiterating therein its position before the trial court. 16 On August 31, 1989, the Court resolved to consider the said Comment as the Answer to the Petition and to give due course to the Petition. 17 Nonetheless, on October 4, 1989, the petitioner filed his Reply to the Comment, reiterating therein his arguments

raised before the trial court. 18 The issue raised in G.R. No. 87977 relates to the authority of the Office of the Solicitor General to appear for certain government officials in the course of the preliminary investigation of their case before the Office of the Ombudsman. The issue raised in G.R. No. 88578 pertains to the authority of the said Office to appear for the Solicitor General who was haled to court in a civil suit for damages arising from an alleged defamatory remark which appeared in a newspaper. Both petitioners raise pure questions of law inasmuch as there are no evidentiary matters to be evaluated by this Court. Moreover, if the only issue is whether or not the conclusions of the trial court are in consonance with law and jurisprudence, then the issue is a pure question of law. 19 Thus, the Court resolved to consolidate both Petitions and to treat them as Petitions for certiorari on pure questions of law in accordance with the provisions of the Rules of Court. 20 In due time, both Petitions were deemed submitted for decision. In resolving both Petitions, the Court must take into account the duties and functions of the Office of the Solicitor General. Presidential Decree No. 478 21 defines such duties and functions, to wit Sec. 1. Functions and Organization. 1) The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. . . (Emphasis supplied) The Office of the Solicitor General submits that on the basis of this provision, it can represent or otherwise defend any public official without any qualification or distinction in any litigation, and that an intepretation thereof to the effect that it is authorized to represent a public official only when the said official is clearly shown to be sued in his official capacity is erroneous. In short, the said Office argues that inasmuch as the law does not make a distinction as to the type of litigation wherein the said Office can enter its appearance as counsel, there should be no distinction made. 22 A similar provision can be found in Section 1661 of the Revised Administrative Code. It reads as follows: "As principal law officer of the Government, the Solicitor General shall have the authority to act for and represent the Government of the Philippine Islands, its officers and agents in any official investigation, proceeding or matter requiring the services of a lawyer." Like the cited provision of Presidential Decree No. 478, this provision does not have any qualifying phrase. The argument of the Office of the Solicitor General as regards Presidential Decree No. 478 seems to apply to this provision as well. Executive Order No. 300, series of 1987 cited by the said Office merely reiterates the provisions of the aforementioned Presidential Decree. In Anti-Graft League of the Philippines, Inc., 23 this Court pointed out that the phrase "official investigation, proceeding or matter requiring the services of a lawyer" found in Section 1661 of the Revised Administrative Code embraces a preliminary investigation in a criminal case initiated against a public official considering that the law makes no qualification as to the nature or character of the "official investigation" contemplated. The Court emphasized, however, that where the investigation results in an information filed against the public official concerned, then that official may no longer be represented by the Office of the Solicitor General and that, accordingly, he will have to get his own private counsel. Thus, this Court held that the Office of the Solicitor General can represent the public official at the preliminary investigation of his case, and that if an information is eventually filed against the said public official, the said Office may no longer represent him in the litigation. This ruling was reiterated in Solicitor General v. Garrido. 24 What is the rationale behind this rule which allows the Office of the Solicitor General to represent a public official during the preliminary investigation of his case, and which prohibits the said office from further representing the said public official when an information is filed against him with the appropriate court? In Anti-Graft League of the Philippines, Inc., this Court stressed that in the performance of their duties, public officials can be subjected to numerous suits, whether ill-founded or not, and that by threats of possible criminal prosecution, parties adversely affected by official action can stay the hand of the public official concerned. The Court observed that there may be hesitancy and diffidence in the execution of their duties if public officials are deterred by the thought that they could be brought to court and face criminal charges. The Court conluded that as an assurance against timidity the Office of the Solicitor General sees to it that the public officials concerned are duly represented by counsel in the preliminary investigation. As to why the public official concerned may no longer be represented by the Office of the Solicitor General, the ostensible reason is this: the said Office may no longer represent him considering that its position as counsel for the accused will be in direct conflict with its responsibilities as the appellate counsel of the People of the Philippines in all criminal

cases. The Court believes that the ruling announced in Anti-Graft League of the Philippines, Inc. and reiterated inGarrido should be reexamined in the light of the nature of a suit against a public official. Under the Presidential Decree No. 478 aforecited, the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. This is as it should be as he is the principal law officer of the Government. 25 In Anti-Graft League of the Philippines, Inc., this Court interpreted this to embrace "both civil and criminal investigation, proceeding or matter requiring the services of a lawyer. 26 In Garrido, the Court sustained the authority of the Solicitor General to enter his appearance on behalf of public officials charged with violating a penal statute for acts connected with the performance of their official duties. 27 It is undisputed that the Office of the Solicitor General is the appellate counsel of the People of the Philippines in all criminal cases. As such, the said Office participates in a criminal case only when the same has reached the appellate courts. It is the office of the city, provincial or state prosecutor, as the case may be, and not the Office of the Solicitor General, which attends to the investigation and the prosecution of criminal cases in the first instance. However, under the doctrine announced in Anti-Graft League of the Philippines, Inc. and Garrido, the Office of the Solicitor General is authorized to enter its appearance as counsel for any public official, against whom a criminal charge had been instituted, during the preliminary investigation stage thereof. Nevertheless, in the same case, this Court held that once an information is filed against the public official, the Office of the Solicitor General can no longer represent the said official in the litigation. The anomaly in this paradigm becomes obvious when, in the event of a judgment of conviction, the case is brought on appeal to the appellate courts. The Office of the Solicitor General, as the appellate counsel of the People of the Philippines, is expected to take a stand against the accused. More often than not, it does. Accordingly, there is a clear conflict of interest here, and one which smacks of ethical considerations, where the Office of the Solicitor General as counsel for the public official, defends the latter in the preliminary investigation stage of the criminal case, and where the same office, as appellate counsel of the People of the Philippines, represents the prosecution when the case is brought on appeal. This anomalous situation could not have been contemplated and allowed by the law, its unconditional terms and provisions notwithstanding. It is a situation which cannot be countenanced by the Court. Otherwise, if the Solicitor General who represents the state on appeal in criminal cases can appear for the accused public official in a preliminary investigation, then by the same token a provincial or city fiscal, his assistant or any government prosecutor who represents the People of the Philippines at the preliminary investigation of a case up to the trial thereof can appear for an accused public official at the preliminary investigation being conducted by another fiscal, prosecutor or municipal judge. The situation would simply be scandalous, to say the least. There is likewise another reason, as earlier discussed, why the Office of the Solicitor General cannot represent an accused in a criminal case. Inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and that which is unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name. 28 Therefore, the accused public official should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime. Thus, the Court rules that the Office of the Solicitor General is not authorized to represent a public official at any stage of a criminal case. For this reason, the doctrine announced in Anti-Graft League of the Philippines, Inc. v.Hon. Ortega and Solicitor General v. Garrido, and all decided cases affirming the same; in so far as they are inconsistent with this pronouncement, should be deemed abandoned. The principle of stare decisisnotwithstanding, it is well-settled that a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this Court should

be right. 29 This observation should apply as well to a public official who is haled to court on a civil suit for damages arising from a felony allegedly committed by him. 30 Any pecuniary liability he may be held to account for on the occasion of such civil suit is for his own account. The State is not liable for the same. A fortiori, the Office of the Solicitor General likewise has no authority to represent him in such a civil suit for damages. For all these reasons, the argument of the Office of the Solicitor General to the effect that it has the authority to represent or otherwise defend any public official without any qualification or distinction in any litigation pursuant to the unconditional provisions of Presidential Decree No. 478 and the other cited laws is untenable. Applying these principles to the case at bar, the Office of the Solicitor General has no authority to represent Solicitor General Chavez in the civil suit for damages filed against him in the Regional Trial Court arising from allegedly defamatory remarks uttered by him. The issues raised in these two Petitions have been resolved on the basis of law and jurisprudence as well as the pertinent arguments of the parties concerned. The other points raised by them are irrelevant to the proper disposition of these cases and need not be considered. The Court is aware of the possibility of public officials being haled to court in an endless array of civil suits. With or without this pronouncement, and considering the nature of a public office in the Philippines vis-a-vis the litigious character of most Filipinos as demonstrated by the number of cases filed in the courts daily, this scenario is a fact that must be accepted. The possibility of being brought to court is an occupational hazard of both the public officer and the citizen, in the same way that every occupation has its own hazards to reckon with. This grim reality notwithstanding, public officials should know that nobody is above the law. Of course, there is the Citizens Legal Aid Office of the Department of Justice that may be made to assist in the defense of any such public official. As to respondent Francisco I. Chavez, he may appear in his own defense in his private capacity in the action for damages against him. The services of private counsel may also be availed of. And if it is the intention of the State to protect public officials from alleged harassment suits, then the creation of a separate office of government lawyers for this purpose may be in order. But certainly the Office of the Solicitor General can not assume a responsibility in defense of such public officials beyond its statutory authority. Accordingly, the Court is of the opinion, and so holds that the Office of the Solicitor General is not authorized to represent a public official at any stage of a criminal case or in a civil suit for damages arising from a felony. This pronouncement applies to all public officials and employees in the executive, legislative and judicial branches of the Government. WHEREFORE, in view of the foregoing, the herein Petitions are hereby GRANTED. The Office of the Solicitor General is permanently prohibited from representing the said respondents in OSP Case No. 88-02780 pending in the Office of the Ombudsman and respondent Francisco I. Chavez in Civil Case No. 55379 pending before the Regional Trial Court of Pasig, Metro Manila. No pronouncement as to costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Feliciano, J., Did not participate in the deliberations.

Footnotes 1 99 SCRA 644 (1980).

2 100 SCRA 276 (1980). 3 Pages 36 to 40, Rollo. 4 Pages 41 to 49, Rollo. 5 Supra, note 1. 6 Pages 49 to 52, Rollo. 7 101 SCRA 225 (1980). 8 Pages 53 to 55, Rollo. 9 Pages 57 to 71, Rollo. 10 Page 29, Rollo. 11 Pages 80 to 84, Rollo. 12 Pages 85 to 95, Rollo. 13 Pages 96 to 104, Rollo. 14 Pages 27 and 28, Rollo. 15 Page 8, Petition; page 9, Rollo. 16 Pages 111 to 136, Rollo. 17 Page 190-A, Rollo. 18 Pages 200, et seq., Rollo. 19 Torres vs, Yu, 119 SCRA 48 (1982). 20 Rules 45 and 65, Rules of Court. 21 Signed into law by President Marcos on June 4, 1974. 22 Pages 15 and 16, Comment; pages 125 and 126, Rollo. 23 Supra, note 1. 24 Supra, note 2. 25 Section 1661, Revised Administrative Code. 26 Supra, page 648.

27 Supra, page 278. 28 Poindexter v. Greenhow, 114 U.S. 270 (1885). 29 Phil Trust Company and Smith, Bell & Co. v. Mitchell, 59 Phil. 30, 36 (1933), cited with approval in Koppel (Phil.), Inc. v. Yatco, 77 Phil, 496, 515 (1946) and Olaguer v. Military Commission No. 34, 150 SCRA 144,165 (1987). 30 Article 100, Revised Penal Code.

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 131012 April 21, 1999 HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of Education, Culture, and Sports, petitioner, vs. COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR MARGALLO, respondents.

MENDOZA, J This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School Teachers Association v. Laguio, Jr., 1 but many incidents of those strikes are still to be resolved. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave.

The facts are as follows: Private respondents are public school teachers. On various dates in September and October 1990, during the teachers' strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations. (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the lapse of 90-day suspension and private respondents were found guilty as charged. Respondent Nicanor Margallo was ordered dismissed from the service effective October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months effective December 4, 1990. 2 Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him guilty of conduct prejudicial to the best interest of the service and imposed on him a six-month suspension. 3 The other respondents also appealed to the MSPB, but their appeal was dismissed because of their failure to file their appeal memorandum on time. 4 On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules and regulation, by filing to file applications for leave of absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them reinstated to their former positions. Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised Administrative Circular No. 1-95, the case referred to the Court of Appeals which, on September 3, 1996, rendered a decision (1) affirming the decision of the CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation of reasonable office rules and regulations only and imposed on him the penalty of reprimand. Private respondents moved for a reconsideration, contending that they should be exonerated of all charges against them and that they be paid salaries during their suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while maintaining its finding that private respondents were guilty of violation of reasonable office rules and regulations for which they should be reprimanded, ruled that private respondents were entitled to the payment of salaries during their suspension "beyond ninety (90) days." Accordingly, the appellate court amended the dispositive portion of its decision to read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution Nos., 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17, 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125 dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21, l993 are hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation of reasonable office rules and regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor Margallo their salaries, allowances and other benefits during the period of their suspension/dismissal beyond the ninety (90) day preventive suspension. No pronouncement as to costs. 6

Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the payment of private respondents' salaries during the period of their appeal. 7 His motion was, however denied by the appellate court in its resolution of October 6, 1997. 8Hence, this petition for review on certiorari. Petitioner contends that the administrative investigation of respondents was concluded within the 90-day period of preventive suspension, implying that the continued suspension of private respondents is due to their appeal, hence, the government of their salaries. Moreover, petitioner lays so much store by the fact that, under the law, private respondents are considered under preventive suspension during the period of their appeal and, for this reason, are not entitled to the payment of their salaries

during their suspension. 9 Petitioner's contentions have no merit. I. PREVENTIVE SUSPENSION AND THE RIGHT TO COMPENSATION IN CASE OF EXONERATION The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions in this case, the law provides: Sec. 47. Disciplinary Jurisdiction (2) The Secretaries and heads of agencies and instrumetalities, province, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. The decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty removal, in which case the same shall be executory only after confirmation by the Secretary concerned. (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 shall be considered having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. Sec. 51. Preventive Suspension. The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending as investigation, if the charge against such officers or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. Sec. 52. Lifting of Preventive Suspension, Pending Administrative Investigation. When the administrative case against the officers or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondents, the period of delay shall not be counted in computing the period of suspension herein provided. There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigations (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated ( 47(4)). Preventive suspension pending investigation is not a penalty. 10 It is a measure intended to enable to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated.

A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances, and other benefits "beyond the ninety (90) day suspension." In other words, no compensation was due for the period of the preventive suspensionpending investigation but only for the period of preventive suspension pending appeal in the event the employee is exonerated. The separate opinion of Justice Panganiban argues that the employee concerned be paid his salaries after his suspension. The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec. 35 read:
Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of suspension of the respondent, the respondent shall be reinstated in the service. If the respondent officers or employee is exonerated, he shall be restored to his position with pay for the period of suspension. 11

However, the law was revised in 1975 and the provision on the payment salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read: Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officers or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be "without pay." Sec. 24 reads: Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. This conclusion is in accord with the rule of statutory construction that
As a rule, the amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction different from that previous to its amendment. 12

The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of salaries for the

preventive suspension pending investigation. First, it says that to deny compensation for the period of preventive suspension would he to reverse the course of decisions ordering the payment of salaries for such period. However, the cases 13 cited are based either on the former rule which expressly provided that "if the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension" 14 or that "upon subsequent reinstatement of the suspended person or upon his exoneration, if death should render reinstatement impossible, any salary so withheld shall be paid, 15 or on cases which do not really support the proposition advanced. Second, it is contended that the exoneration of employees who have been preventively suspended is proof that there was no reason at all to suspend them and thus makes their preventive suspension a penalty. The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechem's A Treatise on the Law of Public Offices and Officers as follows:
864. Officer not entitled to Salary during Suspension from Office. An officer who has been lawfully suspended from his office is not entitled to compensation for the period during which he was so suspended, even through it be subsequently determined that the cause for which he was suspended was insufficient. The reason given is "that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services."16

Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified. 17 The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered "unjustified," even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the law provides that the employee shall be automatically reinstated. Third, it is argued in the separate opinion that to deny employees salaries on the "frivolous" ground that the law does not provide for their payment would be to provide a "tool for the oppression of civil servants who, though innocent, may be falsely "charged of grave or less grave administrative offenses." Indeed, the possibility of abuse is not an argument against recognition of the existence of power. As Justice Story aptly it, "It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of decision, in the last resort, must rest somewhere wherever it may be vested it is susceptible of abuse." 18 It may be added that if and when such abuse occurs, that would be the time for the courts to exercise their nay-saying function. Until then, however, the public interest in an upright civil service must be upheld. Finally, it is argued that even in the private sector, the law provides that employees who are unjustly dismissed are entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such employees of "full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement." 19 In the case of the public sector, as has been noted, the provision for payment of salaries during the preventive suspension pending investigation has been deleted. B. Right to Compensation for Preventive Suspension

Pending Appeal if Employee is Exonerated But although we hold that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation, as already discussed, is not a penalty but only means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent "shall be considered as under preventive suspension during the pendency of the appeal in the event he wins." On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the government's theory would be to make the administrative decision not only executory but final and executory. The fact is that 47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages as equity and justice may require. Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or dismissal shall be immediately executory and that if the respondent appeals he shall be considered as being merely under preventive suspension if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D No. 807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner of Civil Service could order the immediate execution of an administrative decision in the interest of the public service. 20 Nor was there provision for immediate execution of administrative decisions ordering dismissal or suspension in 695 of the Administrative Code of 1917, as amended by C.A. No. 598, 1. 21Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in which employees were found to be innocent of the charges 22 or their suspension was held to be unjustified, because the penalty of suspension or dismissal was executed without a finding by the Civil Service Commissioner that it was necessary "in the interest of the public service." 23 On the other hand, payment of back salaries was denied where it was shown that the employee concerned was guilty as charged and the immediate execution of the decision was ordered by the Civil Service Commissioner "in the interest of the public service." 24 Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot but unjustified. To be entitled to such compensation, the employee must not only be found innocent of the charges but his suspension must likewise be unjustified. But through an employee is considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is entitled to reinstated with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the suspension was imposed. 25 II. PRIVATE RESPONDENTS ENTITLED TO BACK SALARIES ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE RULES AND REGULATIONS AND REPRIMANDED Private respondents were exonerated of all charges against them for acts connected with the teachers' strikes of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were

held liable for violation of reasonable offices rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated: With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service. However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was involved in the "mass actions" but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences.
Under Section 23 of the Rule Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. 26

In Jacinto v. Court of Appeals, 27 a public school who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes. Petitioner Secretary of Education contends, however, that respondent Abad, Bandigas, and Somebang signed a letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service Commission gave no weight to this letter in view of individual letters written by three citing reasons for their absences, to wit: Abad, because he decided to stay home to correct students papers; Bandigas, because she had to accompany her brother to the Commission on Immigration, and Somebang because of "economic reasons." Petitioner did not appeal from this ruling. Hence, he is bound by the fanctual findings of the CSC and the appellate court. WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries to private respondents shall be computed from the time of their dismissal/suspension by the Department of Education, Culture, and Sports until their actual reinstatement, for a period not exceeding five years. SO ORDERED. Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima and Gonzaga-Reyes, JJ., concur. Davide, Jr., C.J., in the result and subject to its modification expressed in its separate opinion of Mr. Justice Panganiban. Melo, J., in the result. Panganiban, J., please see separate opinion.

Puno, Pardo, Buena, Ynares-Santiago, JJ., we joined the separate opinion of Justice Panganiban.

Separate Opinions

PANGANIBAN, J., separate opinion; I concur with the ponencia insofar as it denies the petition and affirms the Court of Appeals Decision and Resolutions finding private respondents guilty only of violation of office rules and regulations, meting upon them the penalty of reprimand and reinstating them in the civil service. I beg to disagree, however, insofar as it deprives private respondents their back salaries corresponding to the entire period of their preventive suspension. Private Respondents Liable

THIRD DIVISION

[G.R. No. 155620. August 9, 2005]

PRUDENCIO QUIMBO, petitioner, vs. ACTING OMBUDSMAN MARGARITO GERVACIO and DIRECTRESS MARY SUSAN S. GUILLERMO OF THE OMBUDSMAN OFFICE, respondents. DECISION
CARPIO-MORALES, J.:

Culled from the records of the case are the following facts: Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar, was on May 21, 1995 administratively charged for harassment and oppression by Elmo V. Padaon (Padaon), a general foreman who was detailed to the Motor Pool Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then Provincial Governor Jose Roo. During the pendency of the administrative case before the Office of the Deputy Ombudsman, petitioner, on motion of the complainant Padaon, was by November 28, 1997 Order of the Ombudsman[1] placed under preventive suspension without pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond Six (6) Months. Petitioner began serving his preventive suspension on March 18, 1998. After petitioner had presented on direct examination his last two witnesses, the Office of the Ombudsman, by Order of April 27, 1998, [2] lifted petitioners preventive suspension. He was thus thereupon ordered, by Memorandum of June 3, 1998 issued by the OIC Provincial Governor, to resume performing his duties as Provincial Engineer.[3] By Decision of April 5, 2000,[4] the Office of the Deputy Ombudsman found petitioner guilty of oppression and recommended that he be suspended from office for a period of eight (8) months without pay, this case being the second commission by him of the same offense.[5] The Deputy Ombudsmans recommendation was approved by the Ombudsman on April 28, 2000. Petitioners motion for reconsideration of the Ombudsmans decision having been denied, he elevated the case to the Court of Appeals. The appellate court, by Decision of March 1, 2001,[6] modifying the decision of the Ombudsman, found petitioner guilty of simple misconduct only and penalized him with suspension from office for a period of Two (2) Months without pay.

Following the finality of the appellate courts decision, the Office of the Ombudsman, by Order dated June 24, 2002,[7] directed the Provincial Governor to implement its decision, as modified by the appellate court. Petitioner filed, however, before the Office of the Ombudsman a Motion for Modification/Reconsideration[8] of its June 24, 2002 Order, calling attention to the fact that he had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified to take into account the period of [his] PREVENTIVE SUSPENSION of TWO (2) MONTHS and SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final penalty imposed.[9] In a similar move, Provincial Governor Milagrosa Tan sent a letter [10] also dated July 23, 2002 to the Ombudsman seeking clarification on the merits of petitioners contention that he should no longer be required to serve the penalty of Two (2) Months suspension without pay, he having priorly served preventive suspension for more than Two (2) Months. By letter dated August 21, 2002[11] addressed to the Provincial Governor, the Office of the Ombudsman clarified that preventive suspension is not a penalty but a preliminary step in an investigation; [and that] [i]f after such investigation, the charge is established and the person investigated upon is found guilty . . . warranting the imposition of penalty, then he shall accordingly be penalized. The order for the implementation of its decision, as modified by the appellate court, was thus reiterated in the letter. Unperturbed, petitioner, via certiorari, assailed before the Court of Appeals the Office of the Ombudsmans denial of his plea to be considered having served the modified penalty. By Resolution dated October 2, 2002,[12] the Court of Appeals dismissed petitioners petition for certiorari, it affirming the Ombudsmans ruling that preven tive suspension pending investigation is not a penalty. Hence, the present petition for review on certiorari raising as sole issue whether the appellate court committed reversible error when it dismissed his petition. Petitioner contends in the affirmative, he arguing that the dismissal of his petition is in violation of the doctrine enunciated in Gloria v. Court of Appeals[13] and the rule on equity that a person should not be punished twice nor be made to suffer the suspension penalty after [he] had [served] the same (although in a preventive suspension).[14] The petition fails. Jurisprudential law[15] establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the

prosecution of the case against him.[16] If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.[17] That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws.

SEC. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. (Emphasis supplied).
Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides:

SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. (Emphasis supplied).
Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. Petitioners reliance on Gloria fails. In said case, this Court recognized two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension, to wit: (1) preventive suspension pending investigation (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law). [18] The foregoing classification has significant implications in determining the entitlement of the employee to compensation during the period of suspension, and to credit the preventive suspension to the final penalty of suspension. Thus, in Gloria, this Court held:

Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is

affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. (Emphasis and underscoring supplied).
[19]

In fine, as petitioners preventive suspension was carried out pending his investigation, not while his appeal from his conviction was pending, the same cannot be credited to form part of the final penalty of suspension. En passant, neither may the concept of crediting, in criminal law, preventive imprisonment in the service of a convicts term of imprisonment [20] be applied to preventive suspension during investigation in administrative law in the service of a respondents final penalty of suspension. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit. Finally, as shown above, since the law explicitly prescribes the rules on crediting of preventive suspension to the final penalty of suspension, petitioners invocation of equity may not lie. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur. Corona, J., on leave.

[1]

Rollo at 56-59. Id. at 64. Id. at 63; Annex H. Records at 422-426. Id. at 426. Rollo at 35-47. Id. at 48. Id. at 50. Id. at 24. Id. at 52. Id. at 54. Id. at 31. 306 SCRA 287 (1999).

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Rollo at 5. Reyes v. Delim, 368 SCRA 323, 333 (2001); Yabut v. Office of the Ombudsman, 233 SCRA 310, 316317 (1994); Beja, Sr. v. Court of Appeals, 207 SCRA 689, 694 (1992). Pimentel v. Garchitorena, 208 SCRA 122, 124 (1992). Vide Nera v. Garcia, 106 Phil. 1031, 1034 (1960); Lastimosa v. Vasquez, 243 SCRA 497, 507 (1995). Gloria v. Court of Appeals, supra at 296. Vide Caniete v. Secretary of Education, Culture and Sports , 333 SCRA 849, 854 (2000). Gloria v. Court of Appeals, supra at 303. Vide Caniete v. Secretary of Education, Culture and Sports, supra at 854; Acosta v. Court of Appeals, 334 SCRA 486, 496 (2000). Article 29 of the Revised Penal Code provides: ART. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders or accused who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: (1) When they are recidivists, or have been convicted previously twice or more times of any crime; and (2) When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (Emphasis supplied).

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lawphil

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 97351 February 4, 1992 RAMON A. GONZALES, petitioner, vs. HON. FRANCISCO I. CHAVEZ, in his capacity as Solicitor General, PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and COMMISSION ON AUDIT, respondents.

ROMERO, J.: In the instant petition for mandamus and prohibition with prayer for the issuance of a temporary restraining order, petitioner submits for the Court's adjudication the twin issues of whether or not the Solicitor General neglected his public duty by withdrawing as counsel for the Republic of the Philippines and the Presidential Commission on Good Government (PCGG) in cases he had filed in court and whether or not the PCGG acted without or in excess of jurisdiction in hiring private lawyers as a result of such withdrawal of appearance. Petitioner Ramon A. Gonzales, as a citizen taxpayer, filed the petition as a class suit under Section 12, Rule 3 of the Rules of

Court on the ground that the subject matters involved are of common and general interest to all Filipino citizens and taxpayers as they pertain to the enforcement of a public duty and the prevention of unlawful expenditure of public funds. According to the petitioner, the Solicitor General is the counsel for the Republic and the PCGG in thirty-three (33) cases before this Court, one hundred nine (109) cases in the Sandiganbayan, one (1) case in the National Labor Relations Commission and another case in the Municipal Trial Court or a total of one hundred forty-four (144) cases. 1 In December 1990, the Solicitor General withdrew as counsel in said cases through a pleading entitled "Withdrawal of Appearance with Reservation." 2 The pleading states: The SOLICITOR GENERAL, to this Honorable Court, hereby respectfully withdraws as counsel for plaintiff Presidential Commission on Good Government (PCGG) in the above-captioned case, with the reservation, however, conformably with Presidential Decree No. 478, the provisions of Executive Order No. 292 as well as the decisional law of "Orbos v. Civil Service Commission, et al.," (G.R. No. 92561, September 12, 1990), to submit his comment/observation on incidents/matters pending with this Honorable Court, if called for by circumstances in the interest of the government or if he is so required by the court. Makati, Metro Manila, December 3, 1990. (Sgd.) FRANCISCO I. CHAVEZ IBP O.R. No. 2894172.06.90 The Solicitor General filed a substantially similar pleading in the cases where the Republic is a party. As a result of such withdrawal of appearance, the PCGG hired forty (40) private lawyers, nineteen (19) of whom are trial lawyers. They would receive a monthly compensation of at least P10,000.00 plus appearance fee of P1,700.00 in actual trial and/or P500.00 if trial is postponed. 3 Petitioner contends that since the Solicitor General's withdrawal of appearance was made without any reason, it implied that it was "within the absolute discretion" of said public official. Section 1 of Presidential Decree No. 478 and Section 35 of the Administrative Code of 1987, however, mandatorily require the Solicitor General to stand in the place of, and act for the Republic and the PCGG in court. Therefore, the Solicitor General has "no discretion to reject by withdrawing" as counsel for said entities. Applying the ruling of this Court with respect to a fiscal in Sta. Rosa Mining Co. v. Zabala, 4 the petitioner further states that: "Similarly, it is the duty of the Solicitor General to appear for the Republic and the PCGG, hence regardless of his personal convictions or opinions, he must proceed to discharge his duty (not withdraw, which is equivalent to refusal to prosecute), and let the court decide the merits of the case." 5 Moreover, petitioner avers that the Solicitor General cannot withdraw his appearance "with reservation" nor can he file his "comment/observation on the incident/matters" after such withdrawal because by ceasing to appear as counsel, he loses his standing in court. Unless a case involves the constitutionality of a treaty, law, ordinance or executive order for which Rule 3 Section 23 of the Rules of Court 6 mandates his appearance, the Solicitor General is not authorized to appear therein after his withdrawal as counsel inasmuch as he himself is not a party-litigant. Furthermore, under Section 26, of Rule 138, 7 the Solicitor General may not unilaterally withdraw his appearance without the consent of the Republic or the PCGG unless the court authorizes his withdrawal. Since there was no such court authority, the Solicitor General's withdrawal of appearance in said several cases is null and void, as it constitutes an act against a mandatory law and hence, it may be attacked collaterally. Neither may the Solicitor General withdraw on the authority of Orbos v. Civil Service Commission 8 wherein this Court held:

In the discharge of this task the Solicitor General must see to it that the best interest of the government is upheld within the limits set by law. . . xxx xxx xxx There are cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to forward the papers of the case to him for appropriate action. . . The Court finds and so holds that this practice should be stopped. To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any litigation, proceeding, investigation or matter requiring the services of a lawyer. The exception is when such officials or agents are being charged criminally or are being civilly sued for damages arising from a felony. His services cannot be lightly rejected, much less ignored by the officer or officials concerned. Indeed, the assistance of the Solicitor General should be welcomed by the parties. He should be given full support and cooperation by any agency or official involved in litigation. He should be enabled to faithfully discharge his duties and responsibilities as the government advocate. And he should do no less for his clients. His burden of assisting in the fair and just administration of justice is clear. This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter of fact, the Court appreciates the participation of the Solicitor General in many proceedings and his continued fealty to his assigned task. He should not therefore desist from appearing before this Court even in those cases he finds his opinion inconsistent with the government or any of its agents he is expected to represent. The Court must be advised of his position just as well. (Emphasis supplied) The petitioner adds the following observations: 9 Therefore, this case militates more against the Solicitor General than in his favor. For if the government and its officials cannot reject the services of the Solicitor General, neither may the latter select the case he would represent by withdrawing in some and retaining others. For unlike private lawyers who are bound to their clients by contract and, therefore, can reject cases offered to them, the Solicitor General and PCGG are wedded to each other by statute for better and for worse. And only a divorce, through the abolition of PCGG or resignation of the Solicitor General, can untie the marital knot. Otherwise, the relationship should continue sans PCGG demurring, and the Solicitor General withdrawing. Absent such resignation or abolition, the Solicitor General has to prosecute or defend the said cases to the best of his ability. Hence, petitioner contends, the PCGG acted without or in excess of jurisdiction in hiring private lawyers as substitutes for the Solicitor General. Nowhere in Executive Order Nos. 1, 2 and 14 does it appear that the PCGG is authorized to hire said lawyers. Since the Solicitor General is named by law as the lawyer for all government agencies, the hiring of private lawyers by such agencies is impliedly excluded. Thus, by employing private lawyers, the PCGG is creating a public office and naming a public officer. However, in the absence of a law providing for the creation of the office of PCGG counsel, said hired lawyers are usurpers or intruders whose acts may be challenged in a collateral proceeding such as an action for prohibition. Similarly, petitioner asserts, prohibition will lie against the Commission on Audit considering that any payment for the services of the PCGG-hired lawyers would result in an unlawful expenditure of public funds. Stressing the need to preserve the status quo until the determination of his rights as a citizen and taxpayer, petitioner prays for the issuance of temporary restraining order. Acting on the petition, however, the Court required the respondent to file their respective comments on the petition without granting the prayer for a temporary restraining order. 10

In its comment, the Commission on Audit (COA) alleges that it has not allowed the disbursement of funds to pay for the services of PCGG-hired private lawyers. It points out the fact that under COA Circular No. 89-299 dated March 21, 1989, the COA has withdrawn the pre-audit of transactions entered into by national government agencies pursuant to the constitutional provision that the COA has the exclusive authority to "define the scope of its audit and examination, to establish the techniques and methods required therefor." 11 Neither has the COA allowed in post-audit the disbursements of funds in payment of the services of the hired private lawyers. Moreover, under COA Circular No. 86-255 dated April 2, 1986, the hiring of private lawyers by government agencies and instrumentalities is prohibited unless there is prior written conformity of the Solicitor General or the Government Corporate Counsel, as the case may be, as well as the written concurrence of COA. For its part, the PCGG, through Commissioner Maximo A. Maceren and lawyer Eliseo B. Alampay, asserts in its comment that the scope of its authority under Executive Orders Nos. 1, 2 and 14 is broad enough to include the authority to engage the services of private lawyers, if necessary, for the fulfillment of its mandate. While such authority is not expressly stated in said executive orders, "it must be deemed necessarily implied in and subsumed under the expressly enumerated powers of the Commission." 12 The PCGG contends that its power under Section 1 of Executive Order No. 14 to "file and prosecute all cases investigated by it" includes "the grant of discretion to the Commission in determining the manner of filing and prosecuting its cases including the matter of who, in particular, will control and supervise the prosecution of said cases." The phrase "with the assistance of the Office of the Solicitor General and other government agencies" simply means that the Solicitor General is called upon to render assistance to the PCGG and whether or not such discretion is required by the Commission is a matter of discretion on its part. Such provision does not preclude the PCGG from engaging the services of private lawyers in the same way that it is "clearly authorized to hire accountants, appraisers, researchers and other professionals as it performs its functions." Since, upon the dictates of legal and practical necessity, it has hired lawyers in the United States and in Switzerland, "it may similarly hire Filipino lawyers in prosecuting its Philippine cases." 13 The PCGG further asserts that the hiring of private lawyers is "not an ultra vires" act but a "means by which (it) can effectively exercise its powers." It emphasizes the fact that it hired private lawyers "only after the Officer of the Solicitor General had unilaterally withdrawn its appearance" for the PCGG in the various pending PCGG-instituted cases. Its own Litigation Division, which was constituted after the Solicitor General's withdrawal, is "sorely undermanned" but it has to contend with "affluent and influential individuals and entities" who can "afford to hire skilled lawyers and organize vast litigation networks." The PCGG tried to seek the assistance of the Department of Justice and the Office of the Government Corporate Counsel but only the former sent two additional prosecutors to handle its cases. 14 The PCGG clarifies that its powers are circumscribed not only by the executive orders aforementioned but also by the inherent police power of the State. By hiring private lawyers, it was merely trying to assist the President of the Philippines in protecting the interest of the State. As such, it was acting as an alter ego of the President and therefore, it was the Executive which determined the necessity of engaging the services of private prosecutors. Contending that "overwhelming necessity" impelled it to hire private lawyers, the PCGG avers that inasmuch as the Central Bank of the Philippines or the Philippine National Bank may engage the services of private lawyers, with more reason may it be allowed to hire private prosecutors after it was abandoned by the Solicitor General in the prosecution of the ill-gotten wealth cases. Consequently, "the Solicitor General's withdrawal of assistance is tantamount to his tacit approval of the PCGG's hiring of private prosecutors in replacement of the solicitors handling the said civil cases." 15 The PCGG concludes that the reasonableness of the compensation for its hired lawyers can hardly be questioned considering the expertise of said lawyers and the complexity of the cases they would be handling for the PCGG. Thus, the prayer for a preliminary injunction must be denied otherwise "the harm that would be done would be far greater than the perceived mischief petitioner seeks to prevent." 16 Solicitor General Francisco I. Chavez inhibits himself from appearing in this case "considering that as far as the Office of the Solicitor General (OSG for brevity) is concerned, the subject is a closed matter among the OSG, the PCGG and the Courts." 17 In the comment filed by Assistant Solicitor General Edgardo L. Kilayko and Solicitor Iderlina P. Pagunuran, the OSG sets out at length the history of the PCGG from its creation until the filing in the Sandiganbayan of thirty-nine (39) " prima facie cases" for ill-

gotten wealth against former President Marcos and his cronies. As suits and countersuits stemmed from the original thirty-nine (39) civil cases, "the OSG had been put to a tremendous task and thus invariably in urgent need of being consulted or informed by the PCGG of the facts and circumstances material to the prosecution and progress not only of the original 39 civil cases, but also of all kinds of "incidents." Nonetheless, the OSG lawyers faced the challenge and the odds if only to live up to their task as "the best lawyers there are in the country." The OSG further explains: 18 On many a time, however a time, however, the lack of the above-mentioned consultation or information resulted in situations that rendered the OSG unavoidably incapable of performing its functions and duties as Lawyer of the Government, not only as mandated upon it by law and as spelled out in Orbos v. CSC, G.R. No. 92561, September 12, 1990, but also in consonance with its office motto: "Integrity In Advocacy." Once the OSG argued before the Sandiganbayan that an asset was under sequestration, only to be informed by the adverse party waving a document before the Sandiganbayan Justices that the sequestration had earlier been lifted, with a PCGG resolution, the document, to boot (Razon case). Then, again, OSG argued, even before this Honorable Court, that an ill-gotten asset had "mysteriously" disappeared, only to be informed by the Honorable Court, that a PCGG Commissioner had earlier by resolution authorized the disposition of the asset (COCOFED case). All the instances need not be enumerated here, as they are not meat and substance, even as OSG is rendered thereby a laughing stock in its professionalism. As to matters that are of great pith and moment, suffice it to say that the recent Benedicto "compromise" agreement, not to mention the SMC-UCPB Compromise settlement, is sub judice or under advisement not only of the Sandiganbayan but also of this Honorable Court in separate "incidents," and suffice it to state that the relationship, obtaining between the Government offices/agencies and the Office of the Solicitor General as counsel, is not at all like one that simply would obtain between private client and private lawyer in private practice, although constant consultation and advice are sine qua non in both types of relationship. The relationship is rather one, created as it is by law, where imposed upon OSG is the responsibility to present to the courts the position that will uphold the best interests of the People, the Government and the State, albeit the same may run counter to its client's position or route of action. At any rate, the PCGG through nationwide TV broadcast and print media, publicly announced that PCGG had disposed with or otherwise did not need the legal services of the Lawyer of the Government, and thus OSG descended, not the unmerited remark of having "abandoned" the ill-gotten wealth cases, but the time-honored principle of impossibilium nulla obligatio est, i.e., there is no obligation to do impossible things (Lim Co Chui v. Paredes, 47 Phil. 463), without in any way casting any aspersion on the moral integrity of any Commissioner or PCGG official, as made clear by the Solicitor General to the President in a meeting with PCGG. Hence, in the light of all the foregoing circumstances, at rock-bottom precisely so as not to prejudice "the interest of the Government" (Orbos), the Solicitor General withdrew as counsel for PCGG in all said cases by filing a notice of "Withdrawal of Appearance with Reservation." In arguing that the instant petition should be dismissed, the OSG contends that this case has become moot and academic as this very Court had resolved to allow the withdrawal of appearance of the Solicitor General in all the cases pending before it "with reservation, conformably with PD No. 478, Executive Order No. 292, as well as the doctrine laid down in 'Orbos v. Civil Service Commission, et al.,' G.R. No. 92561, September 12, 1990, . . ." 19 For its part, the Sandiganbayan had also resolved that "the appearance of the Solicitor General is deemed withdrawn to be substituted by the PCGG's legal panel." 20 The OSG maintains further that the instant petition does not present a case and controversy as the petitioner himself does not even have a "court standing" and a "litigable interest." All the petitioner seeks is an "advisory opinion." The OSG asserts that the

"incident" (referring to the Solicitor General's withdrawal of appearance) should be distinguished from that in JPC Enterprise, Inc. v. Court of Appeals, et al., 21 wherein the Assets Privatization Trust (APT) decided to appear for itself because the law names the Minister of Justice only as its ex oficio legal adviser while by itself it can file suits and institute proceedings and engage external expertise in the fulfillment of its tasks. However, since the APT has no personality of its own, it should have appeared through the Solicitor General. The OSG argues that said "adversarial incident" is not present in this case. In his reply to the comments of the PCGG and the OSG, the petitioner insists that although as between the Solicitor General and the PCGG, this case may have been rendered moot and academic, as between him on the one hand and the Solicitor General and the PCGG on the other hand, a "real controversy" still exists and the issues raised herein have not ceased to exist either. Moreover, a judgment of prohibition and mandamus would have a "practical legal effect and can be enforced." 22 Citing Miguel v. Zulueta, 23 and Taada v. Tuvera, 24 petitioner asserts that he has a standing in court because where a question of public right is involved and the object of the mandamus is the enforcement of a public duty, the relator need not show any legal or special interest in the result of the proceeding. It is sufficient that, as a citizen, he is interested in having the laws executed and the duty in question enforced. The petitioner rebuts the PCGG's contention that its power to hire private lawyers may be implied from its expressly enumerated powers. He asserts that since P.D. No. 478 mandates that "the Solicitor General as law office of the government with the duty to appear for the PCGG," no implication from the express powers of (the) PCGG can stand against the language of P.D. No. 478. On the other hand, the law regarding the PCGG and that regarding the Solicitor General should be harmonized. 25 The Court considers these pleadings sufficient bases for resolving this petition and, on account of the importance and imperativeness of the issues raised herein, the filing of memoranda by the parties is dispensed with. We shall, first of all, confront a preliminary issue interposed by the OSG whether or not this case has been rendered moot and academic by this Court's resolution granting the Solicitor General's motion to withdraw appearance as counsel in the several cases pending herein. It should be clarified that the resolution had to be issued with the national interest in mind. Time was of the essence and any hedging on the part of the PCGG and/or its counsel could, not merely set back but prejudice, the government's all-out efforts to recover ill-gotten wealth. Notwithstanding the ostensible mootness of the issues raised in a case, this Court has never shirked from its symbolic function of educating bench and bar by formulating guiding and controlling principles, precepts, doctrines and rules. 26 More so, if the case is of such magnitude that certain legal ambiguities must be unravelled for the protection of the national interest. 27 To allow the transcendental issue of whether the OSG may withdraw its appearance in a cluster of cases of national import to pass into legal limbo simply because it has been "mooted" would be a clear case of misguided judicial self-restraint. This Court has assiduously taken every opportunity to lay down brick by brick the doctrinal infrastructure of our legal system. Certainly, this is no time for a display of judicial timorousness of the kind which the Solicitor General is untimely exhibiting now. Accordingly, we confront the issue conscious of their far-reaching implications, not alone on the instant case but on future ones as well, which the OSG will surely be called upon to handle again and again. The resolution of the first issue laid down at the beginning of this ponencia hinges on whether or not the Solicitor General may be compelled by mandamus to appear for the Republic and the PCGG. This issue is best resolved by a close scrutiny of the nature and extent of the power and authority lodged by law on the Solicitor General. At this juncture, a flashback on the statutory origins of the Office of the Solicitor General is in order. Incorporated in Act No. 136 dated June 11, 1901 28 providing for the organization of courts in the Philippine Islands was Chapter III entitled "The Attorney General." Section 40 states:

There shall be an Attorney-General for the Philippine Islands, to be appointed by the Philippine Commission . . . The catalog of his duties includes the following:
He shall prosecute or defend therein all causes, civil and criminal, to which the Government of the Philippine Islands, or any officer thereof, in his official capacity, is a party . . . 29

Section 41 further provides: There shall be an officer learned in the law to assist the Attorney-General in the performance of all his duties, called the Solicitor-General who shall be appointed by the Commission . . . In case of a vacancy in the office of Attorney-General, or of his absence or disability, the Solicitor-General shall have power to exercise the duties of that office. Under the supervision of the Attorney-General, it shall be the especial duty of the Solicitor-General to conduct and argue suits and appeals in the Supreme Court, in which the Philippine Government is interested, and the Attorney-General may, whenever he deems it for the interest of the Philippine Government, either in person conduct and argue any case in any court of the Philippine Islands in which the Philippine Government is interested or may direct the Solicitor General to do so. (Emphasis supplied) Six months later, a law was passed reorganizing the Office of the Attorney-General and providing for the appointment of the said official and the Solicitor General by the Civil Governor and for an increase in their salaries. Their duties remained basically the same. 30 In the meantime, Act No. 222 was passed on September 5, 1901 providing for the organization of, among others, the Department of Finance and Justice which embraced within its executive control the Bureau of Justice. 31 Under Act No. 2711, otherwise known as the Administrative Code of 1917, the Bureau of Justice is specifically constituted "the law office of the Government of the Philippine Islands and by it shall be performed duties requiring the services of a law officer." 32 Its chief officials are the Attorney-General and his assistant, the Solicitor General.33
As principal law officer of the Government, the Attorney-General shall have authority to act for and represent the Government of the Philippine Islands, its officers, and agents in any official investigation, proceeding, or matter requiring the services of a lawyer. 34

In 1932, the office of the Attorney-General was phased out and his functions were assumed by the Secretary of Justice. 35 Subsequently, the Bureau of Justice came to be known as the Office of the Solicitor General, 36headed by the Solicitor General. 37 Parenthetically, these institutions were patterned after the Office of Attorney-General, created by the First U.S. Congress in the Judiciary Act of 1789 which called for a "meet person, learned in the law, to act as Attorney-General for the U.S." 38 When the Department of Justice was established in 1870, the position of Solicitor-General was created as an assistant to the AttorneyGeneral. 39 Over a century later, their respective positions and functions remain the same. The Attorney-General of the United States, appointed by the President with the advice and consent of the Senate, is now the head of the Department of Justice. 40 In the same manner, a Solicitor General, learned in the law, is appointed to assist the Attorney-General in the performance of his duties. 41 In contrast, the Solicitor-General of the Philippines, emerging from the shadow of the Attorney-General and later, of the Secretary of Justice, has come to his own. On July 20, 1948, Republic Act. No. 335, amending Section 1659 of the Administrative Code, bestowed on him the rank of Undersecretary of a Department. Subsequently, a series of amendatory laws designed to enlarge the complement of the Office of the Solicitor General was enacted 42 until on June 4, 1974, by virtue of Presidential Decree No. 478, its pivotal role in the government became clearly defined and delineated.

During the martial law years, President Ferdinand E. Marcos leaned heavily on his Solicitor General to provide legal underpinnings of his official acts. Reflective of the tremendously enhanced power of the official and the position was Executive Order No. 454 enacted on September 23, 1975, conferring upon the Solicitor General the rank of a member of the Cabinet "with all the rights, honors and privileges pertaining to the position." Said executive order was superseded by Executive Order No. 473 dated August 12, 1976 "making the Solicitor Generala member of the Cabinet." These executive orders were capped by Executive Order No. 552 dated August 14, 1979 elevating the OSG into a Ministry with the same powers and functions defined in P.D. Nos. 478 and 1347. P.D. 478 became, as it were, the Magna Carta of the Office of the Solicitor General. After the change of administration, or on July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 292 instituting the Administrative Code of 1987. Under Book IV, Title III, Chapter 12 thereof, the Office of the Solicitor General is described as an "independent and autonomous office attached to the Department of Justice." Headed by the Solicitor General, "who is the principal law officer and legal defender of the Government," the Office shall have a Legal Staff composed of fifteen (15) Assistant Solicitors General and such number of Solicitors and Trial Attorneys "as may be necessary to operate the Office which shall divided into fifteen (15) divisions. 43 Among its powers and functions are the following which are relevant to the issues: Sec. 35. Powers and Functions. The office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. When authorized by the President or head of the office concerned, it shall also represent government owned or controlled corporations. The Office of the Solicitor General shall constitute the law office of the Government, and, as such, shall discharge duties requiring the services of a lawyer. (Emphasis supplied.) It shall have the following specific powers and functions: (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. xxx xxx xxx (8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving their respective offices, brought before the courts and exercise supervision and control over such legal Officers with respect to such cases. (9) Call on any department, bureau, office, agency or instrumentality of the Government for such service, assistance and cooperation as may be necessary in fulfilling its function and responsibilities and for this purpose enlist the services of any government official or employees in the pursuit of his tasks. Departments, bureaus, agencies, offices, instrumentalities and corporations to whom the Office of the Solicitor General renders legal services are authorized to disburse funds from their sundry operating and other funds for the latter Office. For this purpose, the Solicitor General and his staff are specifically authorized to receive allowances as may be provided

by the Government offices, instrumentalities and corporations concerned, in addition to their regular compensation. (10) Represent, upon the instructions of the President of the Republic of the Philippines in international litigations, negotiations or conferences where the legal position of the Republic must be defended or presented. (11) Act for 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
(12) Perform such other functions as may be provided by law. 44

In thus tracing the origins of the Office of the Solicitor General to gain a clear understanding of the nature of the functions and extent of the powers of the Solicitor General himself, it is evident that a policy decision was made in the early beginnings to consolidate in one official the discharge of legal functions and services in the government. These took the form mostly of representing the Government in various legal proceedings. The rationale behind this step is not difficult to comprehend. Sound government operations require consistency in legal policies and practices among the instrumentalities of the State. Moreover, an official learned in the law and skilled in advocacy could best plan and coordinate the strategies and moves of the legal battles of the different arms of the government. Surely, the economy factor, too, must have weighed heavily in arriving at such a decision. It is patent that the intent of the lawmaker was to give the designated official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings. Spread out in the laws creating the office is the discernible intent which may be gathered from the term "shall," which is invariably employed, from Act No. 136 (1901) to the more recent Executive Order No. 292 (1987). Under the principles of statutory construction, so familiar even to law students, the term "shall" is nothing if not mandatory.
In common or ordinary parlance and in its ordinary significance, the term "shall" is a word of command, and one which has always and which must be given a compulsory meaning, and it is generally imperative or mandatory. It has the invariable significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning or when public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. 45 The presumption is that the word "shall" in a statute is used in an imperative, and not in a directory, sense. If a different interpretations if sought, it must rest upon something in the character of the legislation or in the context which will justify a different meaning. 46

Exactly what is the signification of the mandate for the OSG "to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigations or matter requiring the services of the lawyer?"
To "represent" is standing in place, supplying the place, or performing the duties or exercising the rights, of the party represented; to speak or act with authority on behalf of another; to conduct and control proceedings in court on behalf of another. 47

The decision of this Court as early as 1910 with respect to the duties of Attorney-General well applies to the Solicitor General under the facts of the present case. The Court then declared:
In this jurisdiction, it is the duty of the Attorney General "to perform the duties imposed upon him by law" and

"he shall prosecute all causes, civil and criminal, to which the Government of the Philippines Islands, or any officer thereof, in his official capacity, is a party . . ." 48

Being a public officer, the Solicitor General is "invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." 49 Another role of the Solicitor General is an officer of the Court, in which case he is called upon "to share in the task and responsibility of dispensing justice and resolving disputes;" therefore, he may be enjoined in the same manner that a special prosecutor was sought enjoined by this Court from committing any act which may tend to "obstruct, pervert or impede and degrade the administration of justice." 50 In one case where a fiscal manifested before the trial court that he would not prosecute the case in court for insufficiency of evidence after his motion to dismiss had been denied, this Court granted a petition for mandamusto compel him to prosecute the case. We declared:
Notwithstanding his personal convictions or opinions, the fiscal must proceed with his duty of presenting evidence to the Court to enable the court to arrive at its own independent judgment as to the culpability of the accused. The fiscal should not shirk from his responsibility much less leave the prosecution of the case at the hands of a private prosecutor . . . In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government since an offense is an outrage to the sovereignty of the State . . . This is so because "the prosecuting officer is the representative not of an ordinary party to a controversy but of a sovereignty where obligation to govern impartially is as compelling as its obligations to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. 51

Undoubtedly, the above arguments apply equally well to the Solicitor General who is sought to be compelled to appear before the different courts to ensure that the case of the Republic of the Philippines against those who illegally amassed wealth at the expense the people maybe made to account for their misdeeds and return said wealth. Like the Attorney-General of the United States who has absolute discretion in choosing whether to prosecute or not to prosecute or to abandon a prosecution already started, 52 our own Solicitor General may even dismiss, abandon, discontinue or compromise suit either with or without stipulations with other party. 53 Abandonment of a case, however, does not mean that the Solicitor General may just drop it without any legal and valid reason for the discretion given him is not unlimited. 54 Its exercise must be, not only within the parameters set by law but with the best interest of the State as the ultimate goal. Such are reflected in its policies, thus:
The discretionary power of the attorney for the United States in determining whether a prosecution shall be commenced or maintained may well depend upon matters of policy wholly apart from any question of probable cause. Although as member of the bar, the Attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. . . . 55

The first executive order ever issued by President Aquino on February 28, 1986, created the PCGG. It announced the government's policy of recovering all ill-gotten wealth amassed by former President Marcos, his immediate family, relatives and close associates. It charged the PCGG with the "task of assisting the President" in regard to the recovery of all ill-gotten wealth, investigation of "such cases of graft and corruption as the President may assign" to it, and the adoption of safeguards to ensure that corruption may not be again committed with impunity. This issuance was followed by Executive Order No. 2 dated March 12, 1986 freezing all assets and properties of Marcos, his family and cronies; prohibiting their transfer, conveyance, encumbrance or concealment, and requiring all persons in and outside of the Philippines who are in possession of said properties to make full disclosure of the same to the PCGG. On April 11, 1986, the PCGG promulgated its Rules and Regulations. A pertinent provision states:

Sec. 10. Findings of the Commission. Based on the evidence adduced, the Commission shall determine whether there is reasonable ground to believe that the asset, property or business enterprise in question constitute ill-gotten wealth as described in Executive Orders Nos. 1 and 2. In the event of an affirmative finding, the Commission shall certify the case to the Solicitor General for appropriate action in accordance with law. Business, properties, funds, and other assets found to be lawfully acquired shall be immediately released and the writ of sequestration, hold or freeze orders lifted accordingly. (Emphasis supplied) Thereafter, or on May 7, 1986, Executive Order No. 14 defining the jurisdiction over cases involving such ill-gotten wealth was issued, it contains the following provisions: Sec. 1. Any provision of law to the contrary notwithstanding, the Presidential Commission on Good Government, with the assistance of the Solicitor General and other government agencies, is hereby empowered to file and prosecute all cases investigated by it under Executive Order No. 1, dated February 28, 1986, and Executive Order No. 2, dated March 12, 1986, as may be warranted by its finding. Sec. 2. The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof. Sec. 3. Civil suits for restitution, reparation of damages, or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No. 2 dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by a preponderance of evidence. (Emphasis supplied). All these legal provisions ineluctably lead to no other conclusion but that under the law of its creation and the complementary Rules, the law office of the PCGG, as it is for the rest of the Government, is the Office of the Solicitor General. Although the PCGG is "empowered to file and prosecute all cases investigated by it" under Executive Orders No. 1 and 2, it does not thereby oust the Office of the Solicitor General from its lawful mandate to represent the Government and its agencies in any litigation, proceeding, investigation or matter requiring the services of a lawyer. Moreover, such express grant of power to PCGG does not imply that it may abdicate such power and turn over the prosecution of the cases to private lawyers whom it may decide to employ. In those instances where proceedings are to be conducted outside of the Philippines, the Solicitor General, continuing to discharge his duties, may employ counsel to assist him, 56 particularly because he may not be licensed to appear before the courts in a foreign jurisdiction. Under its own Rules and Regulations, specifically the provision aforequoted, the PCGG certifies to the Solicitor General the cases for which it had found reasonable ground to believe that certain assets and properties are ill-gotten under Executive Order Nos. 1 and 2. The Solicitor General shall then proceed "in accordance with law." Upon receipt of a case certified to him, the Solicitor General exercises his discretion in the management of the case. He may start the prosecution of the case by filing the appropriate action in court or he may opt not to file the case at all. He may do everything within his legal authority but always conformably with the national interest and the policy of the government on the matter at hand. After filing a case, he may even move for its dismissal in the event that, along the way, he realizes that prosecuting the case would not serve the government's purposes. In other words, because he was appointed to the position on account of his qualification as a man "learned in the law," the Solicitor General is obligated to perform his functions and to perform them well. He may not, however, abdicate his function through an arbitrary exercise of his discretion. We find that a withdrawal of appearance on flimsy or petty grounds is tantamount to withdrawing on no grounds at all and to a dereliction of duty. The Office of the Solicitor General repeatedly invoked the ruling in Orbos v. Civil Service Commission, 57 which hardly constitutes authority to uphold its position with respect to the withdrawal of the Solicitor General in the instant case. On the contrary, in said

case, this Court struck down private respondent's motion to disqualify the OSG from appearing for petitioner Department of Transportation and Communications Secretary Orbos. At the risk of being repetitious, the parties were reminded that under Section 1 of Presidential Decree No. 478 The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of a lawyer. (Emphasis supplied) This Court clarified that even when "confronted with a situation where one government office takes an adverse position against another government agency, as in this case, the Solicitor General should not refrain from performing his duty as the lawyer of the government. It is incumbent upon him to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a client's position. In such an instance, the government office adversely affected by the position taken by the Solicitor General, if it still believes in the merit of its case may appear in its own behalf through its legal personnel or representative." The Court further pointed out that it is not entirely impossible that the Office of the Solicitor General may take a position adverse to his clients like the Civil Service Commission and the National Labor Relations Commission, among others, and even the People of the Philippines. In such instances, however, it is not proper for the Solicitor General to simply decline to handle the case or arbitrarily withdraw therefrom. The Court enjoins him to "nevertheless manifest his opinion and recommendations to the Court which is an invaluable aid in the disposition of the case." 58 However, in those cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to forward the papers of the case to him for appropriate action, the Court categorically held that ". . . this practice should be estopped." 59 By the same token, the Solicitor General should not decline to appear in court to represent a government agency without just and valid reason, especially the PCGG which is under the Office of the President, he being a part of the Executive Department. In the case at bar, the reason advanced by the Solicitor General for his motion to withdraw his appearance as lawyer for the PCGG is that he has been, more than once embarrassed in court and thereby made "a laughing stock in its (his) professionalism." Examples are when the OSG lawyers betrayed ignorance in open court of certain moves taken by the PCGG, such as the lifting of a sequestration of an asset or when it was under the impression that an asset had mysteriously disappeared only to be informed that "a PCGG Commissioner had earlier by resolution authorized the disposition of said asset." The last straw, as it were, was the public announcement through media made by the PCGG that it had "dispensed with or otherwise did not need the legal services of the lawyer of the government." 60 It is evident that the withdrawal of the Solicitor General was precipitated by institutional pique, the lawyers concerned having allowed their collective pride to prevail over their sense of duty in protecting and upholding the public interest. One wistfully wishes that the OSG could have been as zealous in representing the PCGG as it was in appearing for the head of their office, the Solicitor General, in a civil suit for damages filed against him in a Regional Trial Court arising from allegedly defamatory remarks uttered by him. Such enthusiasm, according to this Court, was misplaced. For Section 1 of Presidential Decree No. 478 which authorizes the OSG to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, admits of an exception, and that it is, it stops short of representing "a public official at any stage of a criminal case or in a civil suit for damages arising from a felony." 61 In instances such as the above, the OSG can, with reason, withdraw its representation even if it has already entered its appearance. But the Solicitor General, as the officially-mandated lawyer of the government, is not empowered to take a similar step on the basis of a petty reason like embarrassment, as that to which the individual lawyers assigned to appear for their office were subjected. Had they not been too preoccupied with their personal feelings, they could have checked themselves in time. For a sense of professional responsibility and proper decorum would dictate that they distinguish between the institution which,

from the very beginning, had been constituted as the law office of the Government and the individuals through whom its powers and duties are exercised. No emotions, of whatever kind and degree, should be allowed to becloud their high sense of duty and commitment to country and people. The OSG itself admitted refraining from citing other incidents as additional bases for the Solicitor General's withdrawal "as they are not of meat and substance" but apparently, their overwhelming sense of shame overcame them as the OSG was "rendered thereby a laughing stock in its professionalism." 62 Now a word on the incidents that allegedly caused humiliation to the OSG lawyers, thus provoking the Solicitor General into withdrawing his appearance as counsel for the PCGG. No litigation can be assured of success if counsel does not enjoy the confidence of his client. This is manifested by, among other things, holding regular, constant and untrammeled consultation with each other. Who can say but that if the communication lines had been kept open between the OSG and PCGG, no surprises would have been sprung on the former by the latter in open court? Petitioner's claim that the Solicitor General could not withdraw his appearance as lawyer of PCGG inasmuch as he had neither the consent of his client nor the authority from the court, applying the pertinent provision of the Rules of Court, is not well-taken. Here is no ordinary lawyer-client relationship. Let it be remembered that the client is no less than the Republic of the Philippines in whom the plenum of sovereignty resides. Whether regarded as an abstract entity or an ideal person, it is to state the obvious that it can only act through the instrumentality of the government which, according to the Administrative Code of 1987, refers to the "corporate governmental entity through which the functions of government are exercised throughout the Philippines . . ." 63 And the OSG is, by law, constituted the law office of the Government whose specific powers and functions include that of representing the Republic and/or the people before any court in any action which affects the welfare of the people as the ends of justice may require. Indeed, in the final analysis, it is the Filipino people as a collectivity that constitutes the Republic of the Philippines. Thus, the distinguished client of the OSG is the people themselves of which the individual lawyers in said office are a part. In order to cushion the impact of his untimely withdrawal of appearance which might adversely affect the case, the Solicitor General has offered "to submit his comment/observation on incidents/matters pending with this Honorable Court, if called for by circumstances in the interest of the government or if he is so required by the court." However, as correctly pointed out by the petitioner, while the Solicitor General may be free to express his views and comments before the Court in connection with a case he is handling, he may not do so anymore after he has formally expressed his refusal to appear therein. For by then, he has lost his standing in court. Unless his views are sought by the court, the Solicitor General may not voluntarily appear in behalf of his client after his withdrawal from the case; otherwise, such reappearance would constitute a blatant disregard for court rules and procedure, and that, on the part of one who is presumed to be "learned in the law." In the face of such express refusal on the part of the Solicitor General to continue his appearance as counsel of the PCGG in the cases to recover the ill-gotten wealth of the Filipino people from the Marcoses and their cronies, the PCGG has had to employ the service of a group of private attorneys lest the national interest be prejudiced. Were this Court to allow such action to remain unchallenged, this could well signal the laying down of the novel and unprecedented doctrine that the representation by the Solicitor General of the Government enunciated by law is, after all, not mandatory but merely directory. Worse, that this option may be exercised on less than meritorious grounds; not on substance but on whimsy, depending on the all too human frailties of the lawyers in the OSG assigned to a particular case. Under such circumstances, it were better to repeal the law than leave the various government agencies, all dependent on the OSG for legal representation, in a condition of suspenseful uncertainty. With every looming legal battle, they will be speculating whether they can rely on the Solicitor General to defend the Government's interest or whether they shall have to depend on their own "in-house" resources for legal assistance. The Court is firmly convinced that, considering the spirit and the letter of the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to "represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer."

Sound management policies require that the government's approach to legal problems and policies formulated on legal issues be harmonized and coordinated by a specific agency. The government owes it to its officials and their respective offices, the political units at different levels, the public and the various sectors, local and international, that have dealings with it, to assure them of a degree of certitude and predictability in matters of legal import. From the historical and statutory perspectives detailed earlier in this ponencia, it is beyond cavil that it is the Solicitor General who has been conferred the singular honor and privilege of being the "principal law officer and legal defender of the Government." One would be hard put to name a single legal group or law firm that can match the expertise, experience, resources, staff and prestige of the OSG which were painstakingly built up for almost a century. Moreover, endowed with a broad perspective that spans the legal interests of virtually the entire government officialdom, the OSG may be expected to transcend the parochial concerns of a particular client agency and instead, promote and protect the public weal. Given such objectivity, it can discern, metaphorically speaking, the panoply that is the forest and not just the individual trees. Not merely will it strive for a legal victory circumscribed by the narrow interests of the client office or official, but as well, the vast concerns of the sovereign which it is committed to serve. In light of the foregoing, the Solicitor General's withdrawal of his appearance on behalf of the PCGG was beyond the scope of his authority in the management of a case. As a public official, it is his sworn duty to provide legal services to the Government, particularly to represent it in litigations. And such duty may be enjoined upon him by the writ of mandamus. And such duty may be enjoined upon him by the writ of mandamus. Such order, however, should not be construed to mean that his discretion in the handling of his cases may be interfered with. The Court is not compelling him to act in a particular way. 64 Rather, the Court is directing him to prevent a failure of justice65 resulting from his abandonment in midstream of the cause of the PCGG and the Republic and ultimately, of the Filipino people. In view of the foregoing, there need be no proof adduced that the petitioner has a personal interest in the case, as his petition is anchored on the right of the people, through the PCGG and the Republic, to be represented in court by the public officer duly authorized by law. The requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and hence, part of the public which possesses the right. 66 The writ of prohibition, however, may not be similarly treated and granted in this petition. The said writ, being intended to prevent the doing of some act that is about to be done, it may not provide a remedy for acts which are already fait accompli. 67 Having been placed in a situation where it was constrained to hire private lawyers if the Republic's campaign to legally recover the wealth amassed by the Marcoses, their friends and relatives was to prosper, the PCGG's action is justified. However, it was not entirely blameless. Its failure to coordinate closely with the Solicitor General has spawned the incidents which culminated in the withdrawal of the latter from appearing as counsel in its cases. WHEREFORE, the petition for a writ of mandamus is hereby GRANTED. The Solicitor General is DIRECTED to immediately reenter his appearance in the cases wherein he had filed a motion to withdraw appearance and the PCGG shall terminate the services of the lawyers it had employed but not before paying them the reasonable fees due them in accordance with rules and regulations of the Commission on Audit. This decision is immediately executory. SO ORDERED. Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and Nocon, JJ., concur. Feliciano, J., concurs in the result.

Footnotes 1 Petition, pp. 1-2; Rollo, pp. 2-3. 2 Annexes B and C; Rollo, pp. 27-30. 3 Petition, p. 2; Rollo, p. 3. 4 L-44723, August 31, 1987, 153 SCRA 367. 5 Petition, p. 5; Rollo, p. 6. 6 Sec. 23. Notice to Solicitor General. In any action involving the validity of any treaty, law, ordinance or executive order, rules or regulations, a superior court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. Sec. 26. Change of Attorneys. An attorney may retire at any time from any action or special proceeding, by the written consent of his client filed in court. He may also retire at any time from an action or special proceeding, without the consent of his client, should the court, on notice to the client and attorney, and on hearing, determine that he ought to be allowed to retire. 8 G.R. No. 92561, September 12, 1990, 189 SCRA 459, 466-467. 9 Petition, p. 8; Rollo, p. 9. 10 Ibid, p. 33. 11 Article IX-D, Section 2(2). 12 Comment, p. 3; Rollo, p. 54. 13 Ibid, pp. 4-5; Rollo, pp. 55-56. 14 Ibid, pp. 6-7; Rollo, pp. 57-58. 15 Ibid, p. 10; Rollo, p. 61. 16 Ibid, p. 11; Rollo, p. 62 17 Footnote on p. 22 of Comment; Rollo, p. 86. 18 OSG's Comment, pp. 7-10; Rollo, pp. 71-74. 19 OSG's Comment, p. 10; Rollo, p. 74. 20 Ibid, p. 11; Rollo, p. 75. 21 G.R. NO. 94573 which is still pending decision in this Court. 22 Reply, p. 2; Rollo, p. 89.

23 L-19869, April 30, 1966, 16 SCRA 860. 24 G.R. NO. 63915, April 24, 1985, 136 SCRA 27. 25 Reply, pp. 3-4; Rollo, pp. 90-91. 26 Salonga v. Cruz Pao, G.R. No. 59524, February 18, 1985, 134 SCRA 438 citing Gonzales v. Marcos, L-31685, July 31, 1975, 65 SCRA 624; Aquino, Jr. v. Enrile, L-35538, September 17, 1974, 59 SCRA 184; and De la Camara v. Enage, L-32951-2, September 17, 1971, 41 SCRA 1. 27 Demetria v. Alba, G.R. No. 71977, February 27, 1987, 148 SCRA 208 citing Javier v. Comelec, G.R. Nos. 68379-81, September 22, 1986, 144 SCRA 194. 28 It took effect on June 16, 1901. 29 Act No. 136, section 45(b). 30 Act No. 325 which was enacted and took effect on December 31, 1901. 31 Section 3. 32 Section 1660. 33 Adm. Code of 1917, Section 1659. 34 Ibid, Section 1661. 35 Act 4007 enacted on December 5, 1932. 36 Exec. Order No. 94, Section 66, enacted on October 4, 1947. 37 Com. Act No. 543 of May 26, 1940, amending Section 1659 of the Administrative Code of 1917. 38 Ch. 20, Sec. 35, 1 Stat. 93 corresponding to 28 U.S.C., Sec. 503 (1970). 39 Act of June 22, 1870, Ch. 150, Secs. 3, 15-16, 16 Stat. 162, 164 corresponding to 28 U.S.C. Secs. 505-506 [1970]). 40 28 U.S.C., Sec. 503. 41 28 U.S.C., Sec. 505. 42 Rep. Act Nos. 311, 945, 2068, 3463, 3596, and 4360, as well as Pres. Decree No. 212. 43 Exec. Order No. 292, sec. 34. As of the writing of this ponencia , the Office of the Solicitor General has, besides the Solicitor General himself, 14 Assistant Solicitor General, 66 Solicitors, 45 Associate Solicitors and 235 members of the administrative staff. 44 This section is a virtual reproduction of Section 1 of Pres. Decree No. 478.

45 30 Words and Phrases, Permanent Ed., p. 90. 46 39 Words and Phrases, Permanent Ed., p. 93. 47 37 Words and Phrases, Permanent Ed., p. 34. 48 Severino v. Governor General, 16 Phil. 366, 376 (1910); Lee Jua v. Collector of Customs, 32 Phil. 24 (1915). 49 Aparri v. Court of Appeals, L-30057, January 31, 1984, 127 SCRA 231 citing Mechem, Public Officers and Officers, Sec. 1. 50 Zaldivar v. Gonzales, L-79690-707, October 7, 1988, 166 SCRA 316. 51 Sta. Rosa Mining Co. v. Zabala, L-44723, August 31, 1987, 153 SCRA 367. 52 Smith v. U.S., 375 F. 2d 243, certiorari denied 88 S. Ct. 76, 389 U.S. 841, 19 L. Ed. 2d 106 (1967). 53 State ex rel. Derryberry v. Kerr-McGee Corp., 516 P. 2d 813 (1973). 54 In Re Intervention of Attorney General, 50 N.W. 2d 124 (1949). 55 U.S. v. Cox, 5 Cir. 1965, 342 F. 2d 167, 171 cited in Smith v. U.S., supra, footnote 52. 56 Adm. Code, Sec. 35 (2). 57 G.R. No. 92561, September 12, 1990, 189 SCRA 459. 58 Ibid, p. 466. 59 Ibid, p.9; Rollo, p. 73. 60 Comment, p. 9; Rollo, p. 73. 61 Urbano v. Chavez, G.R. No. 87977, March 19, 1990, 183 SCRA 347. 62 Comment, p. 8; Rollo, p. 72. 63 Adm. Code of 1987, Sec. 2 (1). 64 BF Homes, Incorporated v. National Water Resources Council, G.R. No. 78529, September 17, 1987, 154 SCRA 88. 65 National Investment and Development Corporation v. Aquino, L-34192, June 30, 1988, 163 SCRA 153 citing Marcelo Steel Corporation v. Import Central Board, 87 Phil. 375. 66 Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530 citing Taada v. Tuvera, supra, at p. 36. 67 Heirs of Eugenia V. Roxas, Inc. v. IAC, G.R. No. 67195, May 29, 1989, 173 SCRA 581 citingCabanero

v. Torres, 61 Phil. 522 (1935); Agustin, et al. v. De la Fuente, 84 Phil. 515 (1949); and Navarro v. Lardizabal, L-25361, September 28, 1968, 25 SCRA 370.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 81563 December 19, 1989 AMADO C. ARIAS, petitioner, vs. THE SANDIGANBAYAN, respondent. G.R. No. 82512 December 19, 1989 CRESENCIO D. DATA, petitioner, vs. THE SANDIGANBAYAN, respondent. Paredes Law Office for petitioner.

GUTIERREZ, JR., J.: The facts of this case are stated in the dissenting opinion of Justice Carolina C. Grio-Aquino which follows this majority opinion. The dissent substantially reiterates the draft report prepared by Justice Grio-Aquino as a working basis for the Court's

deliberations when the case was being discussed and for the subsequent votes of concurrence or dissent on the action proposed by the report. There is no dispute over the events which transpired. The division of the Court is on the conclusions to be drawn from those events and the facts insofar as the two petitioners are concerned. The majority is of the view that Messrs. Arias and Data should be acquitted on grounds of reasonable doubt. The Court feels that the quantum of evidence needed to convict petitioners Arias and Data beyond reasonable doubt, as co-conspirators in the conspiracy to cause undue injury to the Government through the irregular disbursement and expenditure of public funds, has not been satisfied. In acquitting the petitioners, the Court agrees with the Solicitor-General 1 who, in 80 pages of his consolidated manifestation and motion, recommended that Messrs. Arias and Data be acquitted of the crime charged, with costs de oficio. Earlier, Tanodbayan Special Prosecutor Eleuterio F. Guerrero had also recommended the dropping of Arias from the information before it was filed. There is no question about the need to ferret out and convict public officers whose acts have made the bidding out and construction of public works and highways synonymous with graft or criminal inefficiency in the public eye. However, the remedy is not to indict and jail every person who may have ordered the project, who signed a document incident to its construction, or who had a hand somewhere in its implementation. The careless use of the conspiracy theory may sweep into jail even innocent persons who may have been made unwitting tools by the criminal minds who engineered the defraudation. Under the Sandiganbayan's decision in this case, a department secretary, bureau chief, commission chairman, agency head, and all chief auditors would be equally culpable for every crime arising from disbursements which they have approved. The department head or chief auditor would be guilty of conspiracy simply because he was the last of a long line of officials and employees who acted upon or affixed their signatures to a transaction. Guilt must be premised on a more knowing, personal, and deliberate participation of each individual who is charged with others as part of a conspiracy. The records show that the six accused persons were convicted in connection with the overpricing of land purchased by the Bureau of Public Works for the Mangahan Floodway Project. The project was intended to ease the perennial floods in Marikina and Pasig, Metro Manila. The accused were prosecuted because 19,004 square meters of "riceland" in Rosario, Pasig which had been assessed at P5.00 a square meter in 1973 were sold as residential land" in 1978 for P80.00 a square meter. The land for the floodway was acquired through negotiated purchase, We agree with the Solicitor-General that the assessor's tax valuation of P5.00 per square meter of land in Rosario, Pasig, Metro Manila is completely unrealistic and arbitrary as the basis for conviction. Herein lies the first error of the trial court. It must be stressed that the petitioners are not charged with conspiracy in the falsification of public documents or preparation of spurious supporting papers. The charge is causing undue injury to the Government and giving a private party unwarranted benefits through manifest partiality, evident bad faith, or inexcusable negligence. The alleged undue injury in a nutshell is the Government purchase of land in Pasig, Rizal for P80.00 a square meter instead of the P5.00 value per square meter appearing in the tax declarations and fixed by the municipal assessor, not by the landowner. The Sandiganbayan, without any clear factual basis for doing so has assumed that the P5.00 per square meter value fixed by the assessor in the tax declarations was the correct market value of the Mangahan property and if the Government purchased the land for P80.00 a square meter, it follows that it must have suffered undue injury. The Solicitor General explains why this conclusion is erroneous:

1. No undue injury was caused to the Government a. The P80.00 per square rneter acquisition cost is just fair and reasonable. It bears stress that the Agleham property was acquired through negotiated purchase. It was, therefor, nothing more than an ordinary contract of sale where the purchase price had to be arrived at by agreement between the parties and could never be left to the discretion of one of the contracting parties (Article 1473, New Civil Code). For it is the essence of a contract of sale that there must be a meeting of the minds between the seller and the buyer upon the thing which is the object of the contract and upon the price (Article 1475, New Civil Code). Necessarily, the parties have to negotiate the reasonableness of the price, taking into consideration such other factors as location, potentials, surroundings and capabilities. After taking the foregoing premises into consideration, the parties have, thus, arrived at the amount of P80.00 per square meter as the fair and reasonable price for the Agleham property. It bears stress that the prosecution failed to adduce evidence to prove that the true and fair market value in 1978 of the Agleham property was indeed P5.00 per square meter only as stated by the assessor in the tax declaration (Exhibit W). On the contrary, the prosecution's principal witness Pedro Ocol, the Assistant Municipal Assessor of Pasig, admitted that the purchase price of P80.00 per square meter paid for the Agleham property as stated in the Deed of Sale (Exhibit G) is reasonable (tsn, August 19,1983, p. 20) and fair (Ibid, p. 76); that 'the value of lands within the town of Pasig ranges from P80.00 to P500.00' (Ibid, p. 21); that the Agleham property is "around 300 meters" from Ortigas Avenue, "adjacent to the existing Leongson [Liamson] Subdivision ... and near Eastland Garment Building" (Ibid, pp. 12-13); that said property is surrounded by factories, commercial establishments and residential subdivisions (Ibid, pp. 7374); that the P5.00 per square meter assessed valuation of the Agleham property appearing on the tax declaration (Exhibit W) was based on actual use only (lbid, pp. 26-27), it being the uniform rate for all ricefields in Pasig irrespective of their locations (Ibid, pp. 72-74) and did not take into account the existence of many factories and subdivisions in the area (Ibid., pp. 25-27, 72-74), and that the assessed value is different from and always lower than the actual market value (Ibid, pp. 22-23). (At pp. 256-259, Rollo) A negotiated purchase may usually entail a higher buying price than one arrived at in the course of expropriation proceedings. In Export Processing Zone Authority v. Dulay (149 SCRA 305, 310 [1987]) we struck down the martial law decree that pegged just compensation in eminent domain cases to the assessed value stated by a landowner in his tax declaration or fixed by the municipal assessor, whichever is lower. Other factors must be considered. These factors must be determined by a court of justice and not by municipal employees. In the instant case, the assessor's low evaluation, in the fixing of which the landowner had no participation, was used for a purpose infinitely more weighty than mere expropriation of land. It forms the basis for a criminal conviction. The Court is not prepared to say that P80.00 to P500.00 a square meter for land in Pasig in 1978 would be a fair evaluation. The value must be determined in eminent domain proceedings by a competent court. We are certain, however, that it cannot be P5.00 a square meter. Hence, the decision, insofar as it says that the "correct" valuation is P5.00 per square meter and on that basis convicted that petitioners of causing undue injury, damage, and prejudice to the Government because of gross overpricing, is grounded on shaky foundations. There can be no overpricing for purposes of a criminal conviction where no proof adduced during orderly proceedings has been presented and accepted. The Court's decision, however, is based on a more basic reason. Herein lies the principal error of the respondent court. We would be setting a bad precedent if a head of office plagued by all too common problems-dishonest or negligent

subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing, his signature as the final approving authority. There appears to be no question from the records that documents used in the negotiated sale were falsified. A key tax declaration had a typewritten number instead of being machine-numbered. The registration stampmark was antedated and the land reclassified as residential instead of ricefield. But were the petitioners guilty of conspiracy in the falsification and the subsequent charge of causing undue in injury and damage to the Government? We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent 'on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of document , letters and supporting paper that routinely pass through his hands. The number in bigger offices or departments is even more appalling. There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction. Was petitioner Arias part of the planning, preparation, and perpetration of the alleged conspiracy to defraud the government? Arias joined the Pasig office on July 19, 1978. The negotiations for the purchase of the property started in 1977. The deed of sale was executed on April 20, 1978. Title was transferred to the Republic on June 8, 1978. In other words, the transaction had already been consummated before his arrival. The pre-audit, incident to payment of the purchase, was conducted in the first week of October, 1978. Arias points out that apart from his signature linking him to the signature on the voucher, there is no evidence transaction. On the contrary, the other co-accused testified they did not know him personally and none approached him to follow up the payment. Should the big amount of P1,520,320.00 have caused him to investigate . gate the smallest detains of the transaction? Yes, if the land was really worth only P5.00 a square meter. However, if land in Pasig was already worth P80.00 a square meter at the time, no warning bell of intuition would have sounded an inner alarm. Land along Ortigas Avenue on the way to Pasig is now worth P20,000.00 to P30,000.00 a square meter. The falsification of the tax declaration by changing "riceland" to "residential' was done before Arias was assigned to Pasig besides, there is no such thing as "riceland" in inner Metro Manila. Some lots in outlying or easily flooded areas may still be planted to rice or kangkong but this is only until the place is dedicated to its real purpose which is commercial, industrial, or residential. If the Sandiganbayan is going to send somebody to jail for six years, the decision should be based on firmer foundation. The Sandiganbayan asked why Arias kept the documents from October, 1978 to June 23, 1982. Arias explained that the rules of the Commission on Audit require auditors to keep these d documents and under no circumstanceto relinquish custody to other persons. Arias was auditor of the Bureau of Public Works in Pasig up to September 1, 1981. The seven months delay in the formal turnover of custody to the new auditor was explained by prosecution witness Julito Pesayco, who succeeded him as auditor and who took over the custody of records in that office. The main reason for the judgment of conviction, for the finding of undue injury and damage to the Government is the alleged gross overprice for the land purchased for the floodway project. Assuming that P80.00 is indeed exorbitant, petitioner Arias cites his testimony as follows:

Q In conducting the pre-audit, did you determine the reasonableness of the price of the property? A In this case, the price has been stated, the transaction had been consummated and the corresponding Transfer Certificate of little had been issued and transferred to the government of the Philippines. The auditors have no more leeway to return the papers and then question the purchase price. Q Is it not a procedure in your office that before payment is given by the government to private individuals there should be a pre-audit of the papers and the corresponding checks issued to the vendor? A Correct, Your Honor, but it depends on the kind of transaction there is. Q Yes, but in this particular case, the papers were transferred to the government without paying the price Did you not consider that rather odd or unusual? (TSN, page 17, April 27,1987). A No, Your Honor. Q Why not? A Because in the Deed of Sale as being noted there, there is a condition that no payments will be made unless the corresponding title in the payment of the Republic is committed is made. Q In this case you said that the title is already in the name of the government? A Yes, Your Honor. The only thing we do is to determine whether there is an appropriation set aside to cover the said specification. As of the price it is under the sole authority of the proper officer making the sale. Q My point is this. Did you not consider it unusual for a piece of property to be bought by the government; the sale was consummated; the title was issued in favor of the government without the price being paid first to the seller? A No, Your Honor. In all cases usually, payments made by the government comes later than the transfer. Q That is usual procedure utilized in road right of way transaction? A Yes, Your Honor. (TSN, p. 18, April 27,1987). Q And of course as auditor, 'watch-dog' of the government there is also that function you are also called upon by going over the papers . . . (TSN, page 22, April 27,1987). I ... vouchers called upon to determine whether there is any irregularity as at all in this particular transaction, is it not? A Yes, Ma'am. Q And that was in fact the reason why you scrutinized also, not only the tax declaration

but also the certification by Mr. Jose and Mr. Cruz? A As what do you mean of the certification, ma'am? Q Certification of Mr. Jose and Mr. Cruz in relation to PD No. 296, A They are not required documents that an auditor must see. (TSN, page 23, April 27,1987). and continuing: A ... The questioning of the purchase price is now beyond the authority of the auditor because it is inasmuch as the amount involved is beyond his counter-signing authority. (TSN, page 35, April 27, 1987). (At pp. 15-16, Petition. Underlinings supplied by petitioner) The Solicitor General summarizes the participation of petitioner Data as follows: As regards petitioner Data's alleged participation, the evidence on record shows that as the then District Engineer of the Pasig Engineering District he created a committee, headed by Engr. Priscillo Fernando with Ricardo Asuncion, Alfonso Mendoza, Ladislao Cruz, Pedro Hucom and Carlos Jose, all employees of the district office, as members, specifically to handle the Mangahan Floodway Project, gather and verify documents, conduct surveys, negotiate with the owners for the sale of their lots, process claims and prepare the necessary documents; he did not take any direct and active part in the acquisition of land for the Mangahan floodway; it was the committee which determined the authenticity of the documents presented to them for processing and on the basis thereof prepared the corresponding deed of sale; thereafter, the committee submitted the deed of sale together with the supporting documents to petitioner Data for signing; on the basis of the supporting certified documents which appeared regular and complete on their face, petitioner Data, as head of the office and the signing authority at that level, merely signed but did not approve the deed of sale (Exhibit G) as the approval thereof was the prerogative of the Secretary of Public Works; he thereafter transmitted the signed deed of sale with its supporting documents to Director Anolin of the Bureau of Public Works who in turn recommended approval thereof by the Secretary of Public Works; the deed of sale was approved by the Asst. Secretary of Public Works after a review and re-examination thereof at that level; after the approval of the deed of sale by the higher authorities the covering voucher for payment thereof was prepared which petitioner Data signed; petitioner Data did not know Gutierrez and had never met her during the processing and payment of her claims (tsn, February 26, 1987, pp. 10-14, 16-24, 31-32). (At pp. 267-268, Rollo.) On the alleged conspiracy, the Solicitor General argues: It is respectfully submitted that the prosecution likewise has not shown any positive and convincing evidence of conspiracy between the petitioners and their co-accused. There was no direct finding of conspiracy. Respondent Court's inference on the alleged existence of conspiracy merely upon the purported 'pre-assigned roles (of the accused) in the commission of the (alleged) illegal acts in question is not supported by any evidence on record. Nowhere in the seventy- eight (78) page Decision was there any specific allusion to some or even one instance which would link either petitioner Arias or Data to their co-accused in the planning, preparation and/or perpetration, if any, of the purported fraud and falsifications alleged in the information That petitioners Data and Arias happened to be officials of the Pasig District Engineering Office who signed the deed of sale and passed on pre-audit the general voucher covering the subject sale, respectively, does hot raise any presumption or inference, that they were part of the alleged plan to defraud the Government, as indeed there was none. It should be remembered that, as aboveshown, there was no undue injury caused to the Government as the negotiated purchase of the Agleham property was made at the fair and reasonable price of P80.00 per square meter.

That there were erasures and superimpositions of the words and figures of the purchase price in the deed of sale from P1,546,240.00 to P1,520,320.00 does not prove conspiracy. It may be noted that there was a reduction in the affected area from the estimated 19,328 square meters to 19,004 square meters as approved by the Land Registration Commission, which resulted in the corresponding reduction in the purchase price from P1,546,240.00 to Pl,520,320.00. The erasures in the deed of sale were simple corrections that even benefited the Government. Moreover, contrary to the respondent Court's suspicion, there was nothing irregular in the use of the unapproved survey plan/technical description in the deed of sale because the approval of the survey plan/ technical description was not a prerequisite to the approval of the deed of sale. What is important is that before any payment is made by the Government under the deed of sale the title of the seller must have already been cancelled and another one issued to the Government incorporating therein the technical description as approved by the Land Registration Commission, as what obtained in the instant case. (At pp. 273-275, Rollo) We agree with the counsel for the People. There is no adequate evidence to establish the guilt of the petitioners, Amado C. Arias and Cresencio D. Data, beyond reasonable doubt. The inadequate evidence on record is not sufficient to sustain a conviction. WHEREFORE, the questioned decision of the Sandiganbayan insofar as it convicts and sentences petitioners Amado C. Arias and Cresencio D. Data is hereby SET ASIDE. Petitioners Arias and Data are acquitted on grounds of reasonable doubt. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Bidin, Cortes and Medialdea, JJ., concur. Separate Opinions

GRIO-AQUINO, J., dissenting: The lone issue in these consolidated petitions for review is whether the Sandiganbayan committed a reversible error in convicting the petitioners, Amado C. Arias and Cresencio D. Data, of having violated Section 3, paragraph (e), of the Anti Graft and Corrupt Practices Act, in connection with the scandalous overpricing of land purchased by the Government as right of way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent provision of the Anti-Graft Law reads as follows: SEC. 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: xxxxxxxxx (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 amended information against them, to which they pleaded not guilty, alleged:

That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D. Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and as such, headed and supervised the acquisition of private lands for the right-of-way of the Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused Cresencio D. Data in the Mangahan Floodway Project; accusedLadislao G. Cruz, then the Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who was charged with the acquisition of lots needed for the Mangahan Floodway Project; accused Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal, Ministry of Public Works who acted as the surveyor of the Mangahan Floodway Project; accusedClaudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's Office, Ministry of Public Works who passed upon all papers and documents pertaining to private lands acquired by the Government for the Mangahan Floodway Project; and accused Amado C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila, who passed upon and approved in audit the acquisition as well as the payment of lands needed for the Mangahan Floodway Project all taking advantage of their public and official positions, and conspiring, confederating and confabulating with accused Natividad C. Gutierrez, the attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel of land situated at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title No. 0097, with accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident bad faith, while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting with manifest partiality in the discharge of their official public and/or administrative functions, did then and there wilfully, unlawfully and feloniously cause undue injury, damage and prejudice to the Government of the Republic of the Philippines by causing, allowing and/or approving the illegal and irregular disbursement and expenditure of public funds in favor of and in the name of Benjamin P. Agleham in the amount of P1,520,320.00 under General Voucher No. 8-047, supported by a certification, dated September 14, 1978, which was purportedly issued by the Municipal Treasurer of Pasig, and certified xerox copies of Tax Declarations Nos. 47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an alleged owner's copy of Tax Declaration No. 49948, in the name of the Republic of the Philippines, said supporting documents having been falsified by the accused to make it appear that the land mentioned in the above-stated supporting papers is a residential land with a market value of P80.00 per square meter and that 19,004 square meters thereof were transferred in the name of the Government of the Republic of the Philippines under Tax Declaration No. 49948, when in truth and in fact, the afore-stated land is actually a riceland with a true and actual market value of P5.00 per square meter only and Tax Declaration No. 49948 was truly and officially registered in the names of spouses Moises Javillonar and Sofia San Andres, not in the name of the Government, and refers to a parcel of land at Sagad, Pasig, Metro Manila; that the foregoing falsities were committed by the accused to conceal the fact that the true and actual pace of the 19,004 square meters of land of Benjamin P. Agleham, which was acquired in behalf of the Government by way of negotiated purchase by the accused officials herein for the right of way of the Mangahan Floodway project at an overprice of P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced amount, the accused misappropriated, converted and misapplied the excess of the true and actual value of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs, uses and benefits, to the damage and prejudice of the Government in the amount of P1,428,300.00. (pp. 2931, Rollo of G.R. No. 81563.) Priscillo Fernando did not face trial for he has remained at large, his present whereabouts being unknown (p. 48, Sandiganbayan Decision, p. 75, Rollo of G.R. No. 81563). In 1975, the Bureau of Public Works initiated the Mangahan Floodway Project to ease the perennial floods affecting the towns of Marikina and Pasig, Metro Manila. The project would traverse the northern and southern portions of Ortigas Avenue in Pasig, Metro Manila (Exhibits A and A-1). An announcement was published in leading newspapers advising affected property owners to file their applications for payment at the District Engineer's Office (p. 29, Sandiganbayan Decision, p. 56, Ibid.). The implementation of the Mangahan Floodway Project was entrusted to the Pasig Engineering District headed by the District

Engineer, Cresencio Data. He formed a committee composed of Supervising Civil Engineer Priscillo Fernando, as over-all in charge, Alfonso Mendoza and Pedro Hucom for acquisition of improvements, and Instrumentman Carlos Jose for surveys (p. 26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to notify lot owners affected by the project of the impending expropriation of their properties and to receive and process applications for payment. The reclassification of all lands around the Mangahan Floodway Project was suspended in 1975 by order of the President (p. 45, Sandiganbayan Decision, p. 72, Ibid.). Implementing that order, a memorandum was sent to Data on August 27,1976, by Public Works Director Desiderio Anolin, directing that all affected lands covered by the Mangahan Floodway Project shall be excluded from reevaluation and reassessment (Annex A, Exh. DD, Counter-Affidavit of Data, p. 70, Sandiganbayan Decision, P. 97, Ibid). Among the lots affected was a 19,004-square-meter portion of a 30,169-square-meter riceland in Pasig registered in the name of Benjamin Agleham under Original Certificate of Title No. 0097 issued on May 5, 1977 (Exh. H). The land was previously owned by Andrea Arabit and Evaristo Gutierrez, parents of the accused Natividad Gutierrez. After Agleham acquired the 3-hectare land in 1973 from the Gutierrez spouses, he had it subdivided into three (3) lots under plan (LRC) Psd-278456 which was approved by the Land Registration Commission on June 1, 1978 (Entry No. 27399/12071, Exh. H). Lot 1, with an area of 19,004 square meters, is the portion that Agleham, through Natividad Gutierrez, sold to the Government in 1978 for the Mangahan Floodway Project. On December 15, 1973, Agleham's property, classified as a "ricefield" with an area of 3.2 hectares, was declared for taxation under Tax Declaration No. 28246 (Exh-Y). Its assessed value was P4,800 or P0.15 per square meter (p. 10, Sandiganbayan Decision, p. 37, Ibid.). On February 27, 1978, another Tax Declaration No. 47895 (Exh. Y-1) was issued for the same ricefield" with a revised area of 30,169 square meters. The declared market value was P150,850 (or P5 per square meter), and the assessed value was P60,340. Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was cancelled and replaced by Tax Declaration No. A018- 00911 (Exh. Y-2) wherein the market value of the same "ricefield," jumped to P301,690 (P10 per square meter). Its assessed value was fixed at P120,680. The description and value of the property, according to Pedro Ocol, the assistant Municipal Assessor of Pasig, was based on the actual use of the property (riceland) not on its potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The valuation was based on a compilation of sales given to the Municipal Assessor's office by the Register of Deeds, from which transactions the Assessor obtained the average valuation of the properties in the same vicinity (p. 14, Sandiganbayan Decision, p. 41, Ibid.). Among those who filed an application for payment (Exhs. FF and FF-1) at the District Engineer's Office was the accused, Natividad Gutierrez, who was armed with a Special Power of Attorney allegedly executed on February 24,1978 by Benjamin Agleham in her favor (Exhs. C and C-1). She submitted a falsified xerox copy of Tax Declaration No. 47895 (Exh. B) bearing a false date: December 15,1973 (instead of February 27, 1978) and describing Agleham's 30,169-square-meter property as "residential" (instead of riceland), with a fair market value of P2,413,520 or P80 per square meter (instead of P150,845 at P5 per square meter). Its assessed value appeared to be P724,056 (instead of P60,340). Gutierrez submitted Agleham's Original Certificate of Title No. 0097 (Exh. H-1), the technical description of the property, and a xerox copy of a "Sworn Statement of the True Current and Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The xerox copy of Tax Declaration No. 47895 was supposedly certified by the Municipal Treasurer of Pasig, Alfredo Prudencio. The documents supporting Agleham's claim were "examined" by the Administrative Officer, accused Claudio Arcaya, who, after initiating them, turned them over to accused Ladislao G. Cruz, A Deed of Absolute Sale for Lot 1 (19,004 square meters valued at P80 per square meter) was prepared by Cruz who also initialed the supporting documents and transmitted them to District Engr. Data. On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by Data and Gutierrez (as attorney-in-fact of Agleham). Thereafter, Data sent the papers to Director Desiderio Anolin of the Bureau of Public Works who recommended to the Assistant Secretary of Public Works the approval of the Deed of Sale (Exh. G-1). Afterwards, the documents were returned to Data's office for the transfer of title to the Government. On June 8, 1978, the sale was registered and Transfer Certificate of Title

No. T-12071 (Exh. T) was issued in the name of the Government. General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount of P1,520,320 bore fourth certifications of. (1) Cruz as Senior Civil Engineer; (2) Priscillo G. Fernando as Supervising Civil Engineer II; (3) Cresencio Data as District Engineer II and (4) Cesar V. Franco as Project Acting Accountant (p. 56, Sandiganbayan Decision, p. 83, Ibid.). On October 23, 1978, the voucher and its supporting documents were pre-audited and approved for payment by the accused, Amado C. Arias, as auditor of the Engineering District. The next day, October 24, 1978, sixteen (16) PNB checks with Serial Nos. 188532 to 188547, inclusive (Exhs. X to X-1 5), for the total sum of Pl,520,320.00 were issued to Gutierrez as payment for Agleham's 19,004-square-meter lot. In October, 1979, an investigation was conducted by the Ministry of National Defense on the gross overpricing of Agleham's property. During the investigation, sworn statements were taken from Alfredo Prudencio, Municipal Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant Municipal Assessor of Pasig (Exh. BB), and the accused Claudio Arcaya (Exh. EE). Prudencio denied having issued or signed the certification dated September 14,1978 (Exh. J), attesting that Agleham's property covered by Tax Declaration No. 47895 had a market value of P2,413,520 and that the taxes had been paid from 1975 to 1978. Prudencio also impugned the initial (purporting to be that of his subordinate Ruben Gatchalian, Chief of the Land Tax Division) that was affixed below Prudencio's typewritten name in Exhibit J. Both Prudencio and Gatchalian disowned the typewritten certification. They declared that such certifications are usually issued by their office on mimeographed forms (Exh. J-1). Assistant Municipal Assessor Pedro Ocol produced and Identified the original or genuine Tax Declaration No. 47895 dated February 27, 1978, and a certified copy thereof (Exh. Y-1). Therein, Agleham's property of 30,169 square meters was classified as a "ricefield" and appraised at P5 per square meter, with an assessed value of P60,340 and a market value of PI 50,850. Ocol testified that the supposed xerox copy of Tax Declaration No. 47895 (Exh. B), which Gutierrez submitted as one of the supporting documents of the general voucher (Exh. S), was fake, because of the following tell-tale signs: (1) the tax declaration number was typewritten, not machine numbered as in the genuine tax declaration, Exhibit Y; (2) the stampmark of registration was antedated to December 15, 1973 in the fake, instead of the correct date February 27, 1978-- in the genuine tax declaration; (3) the classification of the property was "residential," instead of "ricefield" which is its classification in the genuine document; and (4) the lot was over priced at P80 per square meter in the fake tax declaration, instead of the appraised value of only P5 per square meter appearing in the genuine declaration. Also found to be fake was Tax Declaration No. 49948 in the name of the Republic of the Philippines (Exhs. K and K-1). The genuine Tax Declaration No. 49948 (Exhs. U and V-2) was actually filed on October 18, 1978 in the names of the spouses Moises Javillonar and Sofia Andres, for their 598-square-meters' residential property with a declared market value of P51,630. The Agleham deed of sale was pre-audited by the auditor of the Rizal Engineering District, Amado Arias, who approved the payment of Pl,520,320 to Gutierrez without questioning the fact that the amount of the purchase price therein had been altered, i.e., "snow-flaked (sic) and later superimposed by the amount of P1,520,320 in words and figures" (p. 71, Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the supporting documents listed at the back of the General Voucher (Exh. S), numbering fifteen (15) in all, among which were: (1) the fake Tax Declaration No. 47895 showing that the value of the land was P80 per square meter (Exh. B); (2) fake Tax Declaration No. 49948 In the name of the Republic of the Philippines (Exh. K) (3) the forged certification of Municipal Treasurer Prudencio that the fair market value of 'the land was P100 per square meter

(Exh. J); (4) a false certification (Exh. D) dated September 19, 1978 signed by accused Cruz, Jose, and Fernando, certifying that the Agleham property was upon ocular inspection by them, found to be "residential;" (5) a falsely dated certification where the original date was erased and a false date (February 15, 1978) was superimposed (Exh.E), issued by Engr. Fernando pursuant to DPWTC Circular No. 557, certifying that he had examined the real estate tax receipts of the Agleham property for the last three (3) years; (6) the technical description of the land (Exhs. F and F-1) attached to the deed of sale dated April 20, 1978 was not an approved technical description for the subdivision survey executed by Geodetic Engineer Cipriano C. Caro was verified and approved by the Land Registration Commission on May 28,1978 only. There were "substantial variations" noted by the Sandiganbayan between the approved technical description and the technical description of the land in the deed of sale (p. 61, Sandiganbayan Decision, p. 88, Ibid.); (7) the special power of attorney dated February 24, 1978, supposedly given to Gutierrez by Agleham (Exhs. C, C-1) bore a fictitious residence certificate Agleham (p. 64, Sandiganbayan Decision, p. 91, Ibid.); and (8) the fake Sworn Statement on the Current and Fair Market Value of Real Properties (Exh. Z) dated October 1, 1973, contained a forged signature of Agleham, presumably made by Gutierrez herself The Sandiganbayan observed that Agleham's supposed signature "appears to be identical to accused Gutierrez' signatures in the General Voucher (Exh. S), in the release and Quitclaim which she signed in favor of Agleham on July 20, 1983 (Exh. CC), and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan Decision, pp. 91-92, Ibid.). After payment of the Agleham claim, all the supporting documents were kept by Arias. Even after he had been replaced by Julito Pesayco on September 1, 1981, as auditor of the Rizal Engineering District, he did not turn over the documents to Pesayco. It was only on June 23, 1982, after this case had been filed in the Sandiganbayan and the trial had begun, that Arias delivered them to Pesayco (Exh. T-1). After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page decision on November 16, 1987, whose dispositive portion reads as follows: WHEREFORE, judgment is hereby rendered finding accused Natividad G. Gutierrez, Cresencio D. Data, Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and Amado C. Arias GUILTY beyond reasonable doubt of the violation of Section 3, paragraph (e) of Republic Act No. 3019, as ascended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby sentences each of them to suffer the penalty of imprisonment for THREE (3) YEARS, as minimum to SIX (6) YEARS, as maximum; to further suffer perpetual disqualification from public office; to indemnify jointly and severally, the Government of the Republic of the Philippines in the amount of P1,425,300, and to pay their proportional costs of this action. (p. 104, Rollo of G.R. No. 81563.) Both Arias and Data appealed. Arias anchors his petition for review of the Sandiganbayan's decision (G.R. No. 81563) on his contention that the court's findings that he conspired with his co-accused and that he was grossly negligent are based on misapprehension of facts, speculation, surmise, and conjecture. Data's main defense is that the acquisition of the Agleham property was the work of the committee of Prescillo Fernando iii which he did not take an active part, and that the price which the government paid for it was reasonable. Hence, it uttered no jury in the transaction.

In his consolidated brief or comment for the State, the Solicitor General recommends the acquittal of the petitioners because the Agleham property was allegedly not grossly overpriced. After deliberating on the petitions in these cases, we find no error in the decision under review. The Sandiganbayan did not err in finding that the petitioners conspired with their co-accused to cause injury to the Government and to unduly favor the lot owner, Agleham. A conspiracy need not be proved by direct evidence of the acts charged, but may and generally must be proven by a number of indefinite acts, conditions and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People vs. Roca, G.R. No. 77779, June 27, 1988). This case presents a conspiracy of silence and inaction where chiefs of office who should have been vigilant to protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and approved without question the million-peso purchase which, by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when they should have asked questions they looked the other way when they should have probed deep into the transaction. Since it was too much of a coincidence that both petitioners were negligent at the same time over the same transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that manner to approve the illegal transaction which would favor the seller of the land and defraud the Government. We cannot accept Arias' excuse that because the deed of sale had been signed and the property transferred to the Government which received a title in its name, there was nothing else for him to do but approve the voucher for payment. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of government funds. The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the agencies under their respective audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures, and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by Tantuico, 1982 Ed., p. 57.) Arias admitted that he did not check or verify the papers supporting the general voucher that was submitted to him for payment of Pl,520,320 to Agleham or his attorney-in-fact, Natividad Gutierrez. Arias did not question any person for the purpose of determining the accuracy and integrity of the documents submitted to him and the reasonableness of the price that the Government was paying for the less than two-hectare riceland. We reject his casuistic explanation that since his subordinates had passed upon the transaction, he could assume that it was lawful and regular for, if he would be a mere rubber stamp for his subordinates, his position as auditor would be useless and unnecessary. We make the same observation concerning District Engineer Cresencio Data who claims innocence because he allegedly did not take any direct and active participation in the acquisition of the Agleham property, throwing the blame on the committee which he created, composed of Fernando, Asuncion, Mendoza, Cruz, Hucom and Jose that negotiated with the property owners for the purchase of properties on the path of the Mangahan Floodway Project. He in effect would hide under the skirt of the committee which he himself selected and to which he delegated the task that was assigned to his office to identify the lots that would be traversed by the floodway project, gather and verify documents, make surveys, negotiate with the owners for the price, prepare the deeds of sale, and process claims for payment. By appointing the committee, he did not cease to be responsible for the implementation of the project. Under the principle of command responsibility, he was responsible for the manner in which the committee performed its tasks for it was he who in fact signed the deed of sale prepared by the committee. By signing the deed of sale and certifications prepared for his signature by his committee, he in effect, made their acts his own. He is, therefore, equally guilty with those members of the committee (Fernando, Cruz and Jose) who accepted the fake tax declarations and made false certifications regarding the use and value of the Agleham property.

The Solicitor General has pointed out that Data signed, but did not approve, the deed of sale of Agleham's property because the approval thereof was the prerogative of the Secretary of Public Works. It should not be overlooked, however, that Data's signature on the deed of sale was equivalent to an attestation that the transaction was fair, honest and legal. It was he who was charged with the task of implementing the Mangahan Floodway Project within his engineering district. We find no merit in the Solicitor General's argument that the Agleham riceland was not overpriced because the price of P80 per square meter fixed in the deed of sale was reasonable, hence, the petitioners are not guilty of having caused undue injury and prejudice to the Government, nor of having given unwarranted benefits to the property owner and/or his attorney-in-fact, Gutierrez. He further argues that the valuation in the owner's genuine tax declaration may not be used as a standard in determining the fair market value of the property because PD Nos. 76 and 464 (making it mandatory in expropriation cases to fix the price at the value of the property as declared by the owner, or as determined by the assessor, whichever is lower), were declared null and void by this Court in the case of Export Processing Zone Authority (EPZA) vs. Dulay, 149 SCRA 305, and other related cases. That argument is not well taken because PD Nos. 76 and 464 (before they were nullified) applied to the expropriation of property for public use. The acquisition of Agleham's riceland was not done by expropriation but through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning the reasonable value of the land. When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, supra). The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance instances. WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB Crim. Case No. 2010, with costs against the petitioners, Amado Arias and Cresencio Data. Feliciano, Padilla, Sarmiento, and Regalado, JJ., concur.

Separate Opinions GRIO-AQUINO, J., dissenting: The lone issue in these consolidated petitions for review is whether the Sandiganbayan committed a reversible error in convicting the petitioners, Amado C. Arias and Cresencio D. Data, of having violated Section 3, paragraph (e), of the Anti Graft and Corrupt Practices Act, in connection with the scandalous overpricing of land purchased by the Government as right of way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent provision of the Anti-Graft Law reads as follows: SEC. 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: xxxxxxxxx (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 amended information against them, to which they pleaded not guilty, alleged: That on or about the period covering April, 1978 to October 1978, in Rosario, Pasig, Metro Manila, Philippines, and with the jurisdiction of this Honorable Court, accused Cresencio D. Data, being then the district Engineer of the province of Rizal, Ministry of Public Works, and as such, headed and supervised the acquisition of private lands for the right-of-way of the Mangahan Floodway Project of the Government at Sitio Mangahan, Rosario, Pasig, Metro Manila; accused Priscillo G. Fernando, then the Supervising Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works who acted as assistant of accused Cresencio D. Data in the Mangahan Floodway Project; accusedLadislao G. Cruz, then the Senior Engineer of the Office of the District Engineer of Rizal, Ministry of Public Works, who was charged with the acquisition of lots needed for the Mangahan Floodway Project; accused Carlos L. Jose then the Instrumentman of the office of the District Engineer of Rizal, Ministry of Public Works who acted as the surveyor of the Mangahan Floodway Project; accusedClaudio H. Arcaya, then the Administrative Officer I of the Rizal District Engineer's Office, Ministry of Public Works who passed upon all papers and documents pertaining to private lands acquired by the Government for the Mangahan Floodway Project; and accused Amado C. Arias, then the Auditor of Rizal Engineering District, Pasig, Metro Manila, who passed upon and approved in audit the acquisition as well as the payment of lands needed for the Mangahan Floodway Project all taking advantage of their public and official positions, and conspiring, confederating and confabulating with accused Natividad C. Gutierrez, the attorney-in-fact of Benjamin Agleham, who is the registered owner of a parcel of land situated at Rosario, Pasig, Metro Manila and covered by Original Certificate of Title No. 0097, with accused Ladislao G. Cruz, Carlos L. -Jose and Claudio Arias, acting with evident bad faith, while accused Cresencio D. Data, Priscillo G. Fernando and Amado C. Arias, acting with manifest partiality in the discharge of their official public and/or administrative functions, did then and there wilfully, unlawfully and feloniously cause undue injury, damage and prejudice to the Government of the Republic of the Philippines by causing, allowing and/or approving the illegal and irregular disbursement and expenditure of public funds in favor of and in the name of Benjamin P. Agleham in the amount of P1,520,320.00 under General Voucher No. 8-047, supported by a certification, dated September 14, 1978, which was purportedly issued by the Municipal Treasurer of Pasig, and certified xerox copies of Tax Declarations Nos. 47895 and A-018-0091 1, both in the name of Benjamin P. Agleham, and an alleged owner's copy of Tax Declaration No. 49948, in the name of the Republic of the Philippines, said supporting documents having been falsified by the accused to make it appear that the land mentioned in the above-stated supporting papers is a residential land with a market value of P80.00 per square meter and that 19,004 square meters thereof were transferred in the name of the Government of the Republic of the Philippines under Tax Declaration No. 49948, when in truth and in fact, the afore-stated land is actually a riceland with a true and actual market value of P5.00 per square meter only and Tax Declaration No. 49948 was truly and officially registered in the names of spouses Moises Javillonar and Sofia San Andres, not in the name of the Government, and refers to a parcel of land at Sagad, Pasig, Metro Manila; that the foregoing falsities were committed by the accused to conceal the fact that the true and actual pace of the 19,004 square meters of land of Benjamin P. Agleham, which was acquired in behalf of the Government by way of negotiated purchase by the accused officials herein for the right of way of the Mangahan Floodway project at an overprice of P1,520,320.00 was P92,020.00 only; and finally, upon receipt of the overpriced amount, the accused misappropriated, converted and

misapplied the excess of the true and actual value of the above-mentioned land, i.e., P1,428,300.00 for their own personal needs, uses and benefits, to the damage and prejudice of the Government in the amount of P1,428,300.00. (pp. 2931, Rollo of G.R. No. 81563.) Priscillo Fernando did not face trial for he has remained at large, his present whereabouts being unknown (p. 48, Sandiganbayan Decision, p. 75, Rollo of G.R. No. 81563). In 1975, the Bureau of Public Works initiated the Mangahan Floodway Project to ease the perennial floods affecting the towns of Marikina and Pasig, Metro Manila. The project would traverse the northern and southern portions of Ortigas Avenue in Pasig, Metro Manila (Exhibits A and A-1). An announcement was published in leading newspapers advising affected property owners to file their applications for payment at the District Engineer's Office (p. 29, Sandiganbayan Decision, p. 56, Ibid.). The implementation of the Mangahan Floodway Project was entrusted to the Pasig Engineering District headed by the District Engineer, Cresencio Data. He formed a committee composed of Supervising Civil Engineer Priscillo Fernando, as over-all in charge, Alfonso Mendoza and Pedro Hucom for acquisition of improvements, and Instrumentman Carlos Jose for surveys (p. 26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to notify lot owners affected by the project of the impending expropriation of their properties and to receive and process applications for payment. The reclassification of all lands around the Mangahan Floodway Project was suspended in 1975 by order of the President (p. 45, Sandiganbayan Decision, p. 72, Ibid.). Implementing that order, a memorandum was sent to Data on August 27,1976, by Public Works Director Desiderio Anolin, directing that all affected lands covered by the Mangahan Floodway Project shall be excluded from reevaluation and reassessment (Annex A, Exh. DD, Counter-Affidavit of Data, p. 70, Sandiganbayan Decision, P. 97, Ibid). Among the lots affected was a 19,004-square-meter portion of a 30,169-square-meter riceland in Pasig registered in the name of Benjamin Agleham under Original Certificate of Title No. 0097 issued on May 5, 1977 (Exh. H). The land was previously owned by Andrea Arabit and Evaristo Gutierrez, parents of the accused Natividad Gutierrez. After Agleham acquired the 3-hectare land in 1973 from the Gutierrez spouses, he had it subdivided into three (3) lots under plan (LRC) Psd-278456 which was approved by the Land Registration Commission on June 1, 1978 (Entry No. 27399/12071, Exh. H). Lot 1, with an area of 19,004 square meters, is the portion that Agleham, through Natividad Gutierrez, sold to the Government in 1978 for the Mangahan Floodway Project. On December 15, 1973, Agleham's property, classified as a "ricefield" with an area of 3.2 hectares, was declared for taxation under Tax Declaration No. 28246 (Exh-Y). Its assessed value was P4,800 or P0.15 per square meter (p. 10, Sandiganbayan Decision, p. 37, Ibid.). On February 27, 1978, another Tax Declaration No. 47895 (Exh. Y-1) was issued for the same ricefield" with a revised area of 30,169 square meters. The declared market value was P150,850 (or P5 per square meter), and the assessed value was P60,340. Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was cancelled and replaced by Tax Declaration No. A018- 00911 (Exh. Y-2) wherein the market value of the same "ricefield," jumped to P301,690 (P10 per square meter). Its assessed value was fixed at P120,680. The description and value of the property, according to Pedro Ocol, the assistant Municipal Assessor of Pasig, was based on the actual use of the property (riceland) not on its potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The valuation was based on a compilation of sales given to the Municipal Assessor's office by the Register of Deeds, from which transactions the Assessor obtained the average valuation of the properties in the same vicinity (p. 14, Sandiganbayan Decision, p. 41, Ibid.). Among those who filed an application for payment (Exhs. FF and FF-1) at the District Engineer's Office was the accused, Natividad Gutierrez, who was armed with a Special Power of Attorney allegedly executed on February 24,1978 by Benjamin Agleham in her favor (Exhs. C and C-1). She submitted a falsified xerox copy of Tax Declaration No. 47895 (Exh. B) bearing a false date: December 15,1973 (instead of February 27, 1978) and describing Agleham's 30,169-square-meter property as "residential" (instead of riceland), with a fair market value of P2,413,520 or P80 per square meter (instead of P150,845 at P5 per square meter). Its assessed value appeared to be P724,056 (instead of P60,340). Gutierrez submitted Agleham's Original

Certificate of Title No. 0097 (Exh. H-1), the technical description of the property, and a xerox copy of a "Sworn Statement of the True Current and Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The xerox copy of Tax Declaration No. 47895 was supposedly certified by the Municipal Treasurer of Pasig, Alfredo Prudencio. The documents supporting Agleham's claim were "examined" by the Administrative Officer, accused Claudio Arcaya, who, after initiating them, turned them over to accused Ladislao G. Cruz, A Deed of Absolute Sale for Lot 1 (19,004 square meters valued at P80 per square meter) was prepared by Cruz who also initialed the supporting documents and transmitted them to District Engr. Data. On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by Data and Gutierrez (as attorney-in-fact of Agleham). Thereafter, Data sent the papers to Director Desiderio Anolin of the Bureau of Public Works who recommended to the Assistant Secretary of Public Works the approval of the Deed of Sale (Exh. G-1). Afterwards, the documents were returned to Data's office for the transfer of title to the Government. On June 8, 1978, the sale was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was issued in the name of the Government. General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount of P1,520,320 bore fourth certifications of. (1) Cruz as Senior Civil Engineer; (2) Priscillo G. Fernando as Supervising Civil Engineer II; (3) Cresencio Data as District Engineer II and (4) Cesar V. Franco as Project Acting Accountant (p. 56, Sandiganbayan Decision, p. 83, Ibid.). On October 23, 1978, the voucher and its supporting documents were pre-audited and approved for payment by the accused, Amado C. Arias, as auditor of the Engineering District. The next day, October 24, 1978, sixteen (16) PNB checks with Serial Nos. 188532 to 188547, inclusive (Exhs. X to X-1 5), for the total sum of Pl,520,320.00 were issued to Gutierrez as payment for Agleham's 19,004-square-meter lot. In October, 1979, an investigation was conducted by the Ministry of National Defense on the gross overpricing of Agleham's property. During the investigation, sworn statements were taken from Alfredo Prudencio, Municipal Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant Municipal Assessor of Pasig (Exh. BB), and the accused Claudio Arcaya (Exh. EE). Prudencio denied having issued or signed the certification dated September 14,1978 (Exh. J), attesting that Agleham's property covered by Tax Declaration No. 47895 had a market value of P2,413,520 and that the taxes had been paid from 1975 to 1978. Prudencio also impugned the initial (purporting to be that of his subordinate Ruben Gatchalian, Chief of the Land Tax Division) that was affixed below Prudencio's typewritten name in Exhibit J. Both Prudencio and Gatchalian disowned the typewritten certification. They declared that such certifications are usually issued by their office on mimeographed forms (Exh. J-1). Assistant Municipal Assessor Pedro Ocol produced and Identified the original or genuine Tax Declaration No. 47895 dated February 27, 1978, and a certified copy thereof (Exh. Y-1). Therein, Agleham's property of 30,169 square meters was classified as a "ricefield" and appraised at P5 per square meter, with an assessed value of P60,340 and a market value of PI 50,850. Ocol testified that the supposed xerox copy of Tax Declaration No. 47895 (Exh. B), which Gutierrez submitted as one of the supporting documents of the general voucher (Exh. S), was fake, because of the following tell-tale signs: (1) the tax declaration number was typewritten, not machine numbered as in the genuine tax declaration, Exhibit Y; (2) the stampmark of registration was antedated to December 15, 1973 in the fake, instead of the correct date February 27, 1978-- in the genuine tax declaration; (3) the classification of the property was "residential," instead of "ricefield" which is its classification in the genuine document; and (4) the lot was over priced at P80 per square meter in the fake tax declaration, instead of the appraised value of only P5 per square meter appearing in the genuine declaration. Also found to be fake was Tax Declaration No. 49948 in the name of the Republic of the Philippines (Exhs. K and K-1). The genuine Tax Declaration No. 49948 (Exhs. U and V-2) was actually filed on October 18, 1978 in the names of the spouses

Moises Javillonar and Sofia Andres, for their 598-square-meters' residential property with a declared market value of P51,630. The Agleham deed of sale was pre-audited by the auditor of the Rizal Engineering District, Amado Arias, who approved the payment of Pl,520,320 to Gutierrez without questioning the fact that the amount of the purchase price therein had been altered, i.e., "snow-flaked (sic) and later superimposed by the amount of P1,520,320 in words and figures" (p. 71, Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the supporting documents listed at the back of the General Voucher (Exh. S), numbering fifteen (15) in all, among which were: (1) the fake Tax Declaration No. 47895 showing that the value of the land was P80 per square meter (Exh. B); (2) fake Tax Declaration No. 49948 In the name of the Republic of the Philippines (Exh. K) (3) the forged certification of Municipal Treasurer Prudencio that the fair market value of 'the land was P100 per square meter (Exh. J); (4) a false certification (Exh. D) dated September 19, 1978 signed by accused Cruz, Jose, and Fernando, certifying that the Agleham property was upon ocular inspection by them, found to be "residential;" (5) a falsely dated certification where the original date was erased and a false date (February 15, 1978) was superimposed (Exh.E), issued by Engr. Fernando pursuant to DPWTC Circular No. 557, certifying that he had examined the real estate tax receipts of the Agleham property for the last three (3) years; (6) the technical description of the land (Exhs. F and F-1) attached to the deed of sale dated April 20, 1978 was not an approved technical description for the subdivision survey executed by Geodetic Engineer Cipriano C. Caro was verified and approved by the Land Registration Commission on May 28,1978 only. There were "substantial variations" noted by the Sandiganbayan between the approved technical description and the technical description of the land in the deed of sale (p. 61, Sandiganbayan Decision, p. 88, Ibid.); (7) the special power of attorney dated February 24, 1978, supposedly given to Gutierrez by Agleham (Exhs. C, C-1) bore a fictitious residence certificate Agleham (p. 64, Sandiganbayan Decision, p. 91, Ibid.); and (8) the fake Sworn Statement on the Current and Fair Market Value of Real Properties (Exh. Z) dated October 1, 1973, contained a forged signature of Agleham, presumably made by Gutierrez herself The Sandiganbayan observed that Agleham's supposed signature "appears to be Identical to accused Gutierrez' signatures in the General Voucher (Exh. S), in the release and Quitclaim which she signed in favor of Agleham on July 20, 1983 (Exh. CC), and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan Decision, pp. 91-92, Ibid.). After payment of the Agleham claim, all the supporting documents were kept by Arias. Even after he had been replaced by Julito Pesayco on September 1, 1981, as auditor of the Rizal Engineering District, he did not turn over the documents to Pesayco. It was only on June 23, 1982, after this case had been filed in the Sandiganbayan and the trial had begun, that Arias delivered them to Pesayco (Exh. T-1). After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page decision on November 16, 1987, whose dispositive portion reads as follows: WHEREFORE, judgment is hereby rendered finding accused Natividad G. Gutierrez, Cresencio D. Data, Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and Amado C. Arias GUILTY beyond reasonable doubt of the violation of Section 3, paragraph (e) of Republic Act No. 3019, as ascended, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby sentences each of them to suffer the penalty of imprisonment for THREE (3) YEARS, as minimum to SIX (6) YEARS, as maximum; to further suffer perpetual disqualification from public office; to indemnify jointly and severally, the Government of

the Republic of the Philippines in the amount of P1,425,300, and to pay their proportional costs of this action. (p. 104, Rollo of G.R. No. 81563.) Both Arias and Data appealed. Arias anchors his petition for review of the Sandiganbayan's decision (G.R. No. 81563) on his contention that the court's findings that he conspired with his co-accused and that he was grossly negligent are based on misapprehension of facts, speculation, surmise, and conjecture. Data's main defense is that the acquisition of the Agleham property was the work of the committee of Prescillo Fernando iii which he did not take an active part, and that the price which the government paid for it was reasonable. Hence, it uttered no jury in the transaction. In his consolidated brief or comment for the State, the Solicitor General recommends the acquittal of the petitioners because the Agleham property was allegedly not grossly overpriced. After deliberating on the petitions in these cases, we find no error in the decision under review. The Sandiganbayan did not err in finding that the petitioners conspired with their co-accused to cause injury to the Government and to unduly favor the lot owner, Agleham. A conspiracy need not be proved by direct evidence of the acts charged, but may and generally must be proven by a number of indefinite acts, conditions and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People vs. Roca, G.R. No. 77779, June 27, 1988). This case presents a conspiracy of silence and inaction where chiefs of office who should have been vigilant to protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and approved without question the million-peso purchase which, by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when they should have asked questions they looked the other way when they should have probed deep into the transaction. Since it was too much of a coincidence that both petitioners were negligent at the same time over the same transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that manner to approve the illegal transaction which would favor the seller of the land and defraud the Government. We cannot accept Arias' excuse that because the deed of sale had been signed and the property transferred to the Government which received a title in its name, there was nothing else for him to do but approve the voucher for payment. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of government funds. The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the agencies under their respective audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures, and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by Tantuico, 1982 Ed., p. 57.) Arias admitted that he did not check or verify the papers supporting the general voucher that was submitted to him for payment of Pl,520,320 to Agleham or his attorney-in-fact, Natividad Gutierrez. Arias did not question any person for the purpose of determining the accuracy and integrity of the documents submitted to him and the reasonableness of the price that the Government was paying for the less than two-hectare riceland. We reject his casuistic explanation that since his subordinates had passed upon the transaction, he could assume that it was lawful and regular for, if he would be a mere rubber stamp for his subordinates, his position as auditor would be useless and unnecessary.

We make the same observation concerning District Engineer Cresencio Data who claims innocence because he allegedly did not take any direct and active participation in the acquisition of the Agleham property, throwing the blame on the committee which he created, composed of Fernando, Asuncion, Mendoza, Cruz, Hucom and Jose that negotiated with the property owners for the purchase of properties on the path of the Mangahan Floodway Project. He in effect would hide under the skirt of the committee which he himself selected and to which he delegated the task that was assigned to his office to Identify the lots that would be traversed by the floodway project, gather and verify documents, make surveys, negotiate with the owners for the price, prepare the deeds of sale, and process claims for payment. By appointing the committee, he did not cease to be responsible for the implementation of the project. Under the principle of command responsibility, he was responsible for the manner in which the committee performed its tasks for it was he who in fact signed the deed of sale prepared by the committee. By signing the deed of sale and certifications prepared for his signature by his committee, he in effect, made their acts his own. He is, therefore, equally guilty with those members of the committee (Fernando, Cruz and Jose) who accepted the fake tax declarations and made false certifications regarding the use and value of the Agleham property. The Solicitor General has pointed out that Data signed, but did not approve, the deed of sale of Agleham's property because the approval thereof was the prerogative of the Secretary of Public Works. It should not be overlooked, however, that Data's signature on the deed of sale was equivalent to an attestation that the transaction was fair, honest and legal. It was he who was charged with the task of implementing the Mangahan Floodway Project within his engineering district. We find no merit in the Solicitor General's argument that the Agleham riceland was not overpriced because the price of P80 per square meter fixed in the deed of sale was reasonable, hence, the petitioners are not guilty of having caused undue injury and prejudice to the Government, nor of having given unwarranted benefits to the property owner and/or his attorney-in-fact, Gutierrez. He further argues that the valuation in the owner's genuine tax declaration may not be used as a standard in determining the fair market value of the property because PD Nos. 76 and 464 (making it mandatory in expropriation cases to fix the price at the value of the property as declared by the owner, or as determined by the assessor, whichever is lower), were declared null and void by this Court in the case of Export Processing Zone Authority (EPZA) vs. Dulay, 149 SCRA 305, and other related cases. That argument is not well taken because PD Nos. 76 and 464 (before they were nullified) applied to the expropriation of property for public use. The acquisition of Agleham's riceland was not done by expropriation but through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning the reasonable value of the land. When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, supra). The petitioner's partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstance instances. WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB Crim. Case No. 2010, with costs against the petitioners, Amado Arias and Cresencio Data. Feliciano, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes 1 The Solicitor General was assisted by Assistant Solicitor General Zoilo A. Andi and Solicitor Luis F. Simon.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 143403 January 22, 2003

FILONILA O. CRUZ, petitioner, vs. HON. CELSO D. GANGAN, DIR. MARCELINO HANOPOL, AUDITOR GLENDA MANLAPAZ, AND THE COMMISSION ON AUDIT, respondents. PANGANIBAN, J.: While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless rule that a government employee who has not been proven to be culpable or negligent should not be held accountable for the loss of a cellular phone stolen from her while she was riding the Light Railway Transit (LRT). On the other hand, the dogged persistence of petitioner in fighting for her rights, honor, respect and dignity has not been lost on this Court. She has been true to her calling as an educator and a role model for our young people. The Case For review on certiorari under Rule 64 is Decision No. 2000-1041 dated March 28, 2000, issued by the Commission on Audit (COA), requiring Dr. Filonila O. Cruz to pay the book value of a lost government-issued Nokia 909 analog cellular phone. The decretal portion of the Decision reads as follows:

"Premises considered, and conformably to the adverse recommendations of the Director, NGAO II and the Auditor, TESDA-NCR in the letter and 2nd Indorsement dated July 13, 1999 and February 26, 1999, respectively, it is regretted that the instant request for relief is DENIED for want of merit. This being so, the herein petitioner should be required to pay the book value of the lost government-issued cellular phone."2 The Facts On Friday afternoon of January 15, 1999, petitioner went to the Regional Office of the Technological Education and Skills Development Authority (TESDA) in Taguig, Metro Manila for consultation with the regional director.3After the meeting, petitioner went back to her official station in Caloocan City, where she was the then Camanava district director of the TESDA, by boarding the Light Railway Transit (LRT) from Sen. Gil Puyat Avenue to Monumento. On board the LRT, her handbag was slashed and its contents stolen by an unidentified person. Among the items taken from her were her wallet and the government-issued cellular phone, which is the subject of the instant case. That same day, she reported the incident to police authorities who immediately conducted an investigation. However, all efforts to locate the thief and to recover the phone proved futile. Three days after, on January 18, 1999, petitioner reported the theft to the regional director of TESDA-NCR. She did so through a Memorandum, in which she requested relief from accountability of the subject property. In a 1st Indorsement dated January 19, 1999, the regional director, in turn, indorsed the request to the resident auditor. Under a 2nd Indorsement dated February 26, 1999, the resident auditor4 denied the request of petitioner on the ground that the latter lacked the diligence required in the custody of government properties. Thus, petitioner was ordered to pay the purchase value of the cell phone (P3,988) and that of its case (P250), a total of P4,238. The auditors action was sustained by the director of the National Government Audit Office II (NGAO II). The matter was then elevated to the Commission on Audit. Ruling of the Commission on Audit On appeal, the COA found no sufficient justification to grant the request for relief from accountability. It explained as follows: "x x x While it may be true that the loss of the cellular phone in question was due to robbery (bag slashing), this however, cannot be made as the basis in granting the herein request for relief from accountability since the accountable officer, Dr. Cruz, failed to exercise that degree of diligence required under the circumstances to prevent/avoid the loss. When Dr. Cruz opted to take the LRT which undeniably, was almost always packed and overcrowded and considering further the day and time she boarded said train which was at about 2:00 to 2:30 P.M. of Friday, she exposed herself to the danger and the possibility of losing things such as the subject cellular phone to pickpockets. As an accountable officer, she was under obligation to exercise proper degree of care and diligence in safeguarding the property, taking into account what a reasonable and prudent man would have done under the circumstances. Dr. Cruz could have reasonably foreseen the danger that would befall her and took precautions against its mischievous result. Therefore, having been remiss in her obligation in the keeping or use of the subject government issued cellular phone, she has to answer for its loss as required under Section 105 of PD 1445. Additionally, to be exempt from liability because of fortuitous event as invoked by petitioner Dr. Cruz has no bearing to the case at bar considering that Article 1174 of the New Civil Code which supports said contention applies only if the actor is free from any negligence or misconduct by which the loss/damage may have been occasioned. Further, in Nakpil vs. CA, 144 SCRA 596, one who creates a dangerous condition cannot escape liability although an act of God may have intervened. Thus, there being a positive showing of negligence on the part of the petitioner in the keeping of the subject cellular phone, then, such negligence militates against the grant of herein request for relief."5 Hence, this Petition.6 Issues In her Memorandum, petitioner faults the COA with the following alleged errors:

I. "The Commission Proper committed grave abuse of discretion amounting to excess of jurisdiction in finding that petitioner failed to exercise that degree of diligence required to prevent the loss of the government-issued cellular phone when she opted to take the light railway transit (LRT) in going to her official station in CAMANAVA District, Caloocan City Hall, Caloocan City[; and] II. "The Commission Proper committed grave abuse of discretion when it applied the case of Nakpil vs. CA, 144 SCRA 596 and disregarded Article 1174 of the New Civil Code in denying petitioners request for relief from accountability[.]"7 In the main, the issues in this case are: (1) whether petitioner was negligent in the care of the government-issued cellular phone, and (2) whether she should be held accountable for its loss. We note that in its Manifestation and Motion dated October 24, 2000, reiterated in a similar pleading dated March 28, 2001, the Office of the Solicitor General (OSG) sided with petitioner and prayed for the granting of the Petition. Hence, the COA was herein represented by its general counsel, Atty. Santos M. Alquisalas. The Courts Ruling The Petition is meritorious. First Issue: Required Degree of Diligence The crucial question to ask is whether petitioner should be deemed negligent when, on that fateful afternoon, she opted to board the LRT where the cellular phone was stolen. We answer in the negative. Riding the LRT cannot per se be denounced as a negligent act; more so under the circumstances in this case, in which petitioners mode of transit was influenced by time and money considerations. Petitioner boarded the LRT to be able to arrive in Caloocan in time for her 3:00 p.m. meeting. Any prudent or rational person under similar circumstances can reasonably be expected to do the same. Possession of a cellular phone would not and should not hinder one from boarding an LRT coach as petitioner did. After all, whether she took a bus or a jeepney, the risk of theft would have also been present. Because of her relatively low position and pay, she was not expected to have her own vehicle or to ride a taxicab. Neither had the government granted her the use of any vehicle. "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent man and reasonable man would not do.8 "Negligence is want of care required by the circumstances.9 "The diligence with which the law requires the individual at all times to govern his conduct varies with the nature of the situation in which he is placed, and the importance of the act which he is to perform."10(Emphasis supplied) The Rules11 provide that property for official use and purpose shall be utilized with the diligence of a good father of a family. Extra-ordinary measures are not called for in taking care of a cellular phone while in transit. Placing it in a bag away from

covetous eyes and holding on to that bag, as done by petitioner, is ordinarily sufficient care of a cellular phone while travelling on board the LRT. The records do not show any specific act of negligence on her part. It is a settled rule that negligence cannot be presumed;12 it has to be proven. In the absence of any shred of evidence thereof, respondents gravely abused their discretion in finding petitioner negligent. Granting that the presence or the absence of negligence is a factual matter, the consistent ruling of this Court is that findings of fact of an administrative agency must be respected, so long as they are supported by substantial evidence.13 But lacking support, the factual finding of the COA on the existence of negligence cannot stand on its own and is therefore not binding on the Court. While we commend the Commission on Audit for its diligence in safeguarding State properties, we nonetheless hold that a government employee who has not been proven to be culpable or negligent should not be held accountable for the loss of a cellular phone, which was stolen from her while she was riding on the LRT. Second Issue: Accountability The assailed COA Decision directly attributed the loss of the cellular phone to a "robbery (bag slashing)." However, it denies the request of petitioner for relief from accountability, because it found her to be negligent. Earlier, we have already ruled that the finding of negligence had no factual or legal basis and was therefore invalid. What now remains to be resolved is whether petitioner observed the proper procedure for notifying the government of the loss. Within thirty days of the loss,14 petitioner applied for relief from accountability. We hold that such application be deemed as the notification of the loss of the subject cellular phone. She has also done her part in proving that the loss was due to theft or robbery. The resident auditor15 concerned and the COA itself have accepted that the robbery or theft had actually taken place. Necessarily, in the absence of evidence showing negligence on her part, credit for the loss of the cellular phone is proper under the law.16 It also stands to reason that P4,238 should now be refunded to her. That was the amount she had to pay on June 3, 1999, upon her retirement from government service at age 65. Her dogged persistence in pursuing this appeal has not been lost on this Court. We agree that, in fighting for her rights, she must have spent more than the value of the lost cellular phone. Hence, we can only applaud her for being true to her calling as an educator and a role model for our young people. Honor, respect and dignity are the values she has pursued. May her tribe increase! WHEREFORE, the Petition is GRANTED. The assailed Decision of the Commission on Audit is REVERSED andSET ASIDE. The request of Petitioner Filonila O. Cruz for relief from accountability for the lost Nokia 909 analog cellular phone is GRANTED, and the amount of P4,238 paid under Official Receipt No. 6606743 is ordered to beREFUNDED to her upon finality of this Decision. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, Callejo, Sr., and Azcuna, JJ., concur. Bellosillo, J., on leave. Mendoza, J., in the result.

Footnotes
1

Signed by Hon. Celso D. Gangan (chairman), Hon. Raul C. Flores and Hon. Emmanuel M. Dalman (commissioners).

Assailed Decision, p. 3; rollo, p. 22. Director IV Marcelino P. Hanapol Jr., one of herein respondents. State Auditor III Glenda E. Manlapaz, one of herein respondents. Assailed Decision, pp. 2-3; rollo, pp. 21-22.

This case was deemed submitted for resolution on April 30, 2001, upon receipt by this Court of respondents Memorandum, which was signed by Atty. Santos M. Alquizalas. Petitioners Memorandum, signed by Atty. Marilou O. Dela Cruz, was received by the Court on April 25, 2001.
6 7

Petitioners Memorandum, p. 6; rollo, p. 105. McKee v. Intermediate Appellate Court, 211 SCRA 517, July 16, 1992, per Davide, Jr., J. Valenzuela v. Court of Appeals, 253 SCRA 303, February 7, 1996, per Kapunan, J.

10

Sangco, Torts and Damages, Vol. 1, 1993 rev. ed. p. 5; citing US v. De los Reyes, 1 Phil. 375, 377, September 16, 1902.
11

8, par. 3, Rules Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees. Francisco, Evidence, 1994 ed., p. 388. Bulilan v. Commission on Audit, supra. Assailed Decision; Excerpt of Documents and Summary of Events. 2nd Indorsement dated February 26, 1999, signed by State Auditor III Manlapaz.

12

13

14

15

16

PD 1445, Sec. 73. Credit for loss occurring in transit or due to casualty or force majeure.- (1) When a loss of government funds or property occurs while they are in transit or the loss is caused by fire, theft, or other casualty or force majeure, the officer accountable therefor or having custody thereof shall immediately notify the Commission or the auditor concerned and, within thirty days or such longer period as the Commission or auditor may in the particular case allow, shall present his application for relief, with the available supporting evidence. Whenever warranted by the evidence credit for the loss shall be allowed. x x x."

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Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 120905 March 7, 1996 RENATO U. REYES, petitioner, vs. COMMISSION ON ELECTIONS, and ROGELIO DE CASTRO, respondents. G.R. No. 120940 March 7, 1996 JULIUS O. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS, and RENATO U. REYES, respondents.

MENDOZA., J.:p For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to annul the resolution dated May 9, 1995 of the Second Division of the Commission on Elections, declaring petitioner Renato U. Reyes disqualified from running for

local office and cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the disqualification of Renato U. Reyes. On August 1, 1995, the Court issued a temporary restraining order directing the Commission on Elections en bancto cease and desist from implementing its resolution of July 3, 1995. It also ordered the two cases to be consolidated, inasmuch as they involved the same resolutions of the COMELEC. The facts are as follows: Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market; that certain checks issued to him by the National Reconciliation and Development Program of the Department of Interior and Local Government were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27) heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months. In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office. It appears that earlier, after learning that the Sanggunian had terminated the proceedings in the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the proceedings had been terminated without giving him a chance to be heard. A temporary restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration of the temporary restraining order and without any injunction being issued by the Regional Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila. However, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the decision. On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused. Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the Election Officer of the COMELEC in Bongabong. On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the Local Government Code of 1991 (R.A. No .7160) which states: 40. Disqualification. The following persons are disqualified from running for any elective local position: .... (b) Those removed from office as a result of an administrative case. Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner Reyes was voted for in the elections held on May 8, 1995. On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the dispositive portion of which reads as

follows: WHEREFORE, respondent having been removed from office by virtue of Administrative Case 006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section 40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong, Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the respondent's disqualification and to IMMEDIATELY circulate the amendment to the different Boards of Election Inspectors in Bongabong upon the receipt of this decision. On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor. On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared him to have been validly disqualified as candidate and, consequently, set aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the ground that the decision in the administrative case against petitioner Reyes was not yet final and executory and therefore could not be used as basis for his disqualification. It is contended that the charges against him were rendered moot and academic by the expiration of the term during which the acts complained of had allegedly been committed. Invoking the ruling in the case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995 is a bar to his disqualification. On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second highest number of votes next to petitioner Reyes in the same elections of May 8, 1995, intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong, Oriental Mindoro. In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the ruling in Republic v. De la Rosa 2 that a candidate who obtains the second highest number of votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940. Petitioner contends that (1) the COMELEC en banc should have decided his petition at least 15 days before the May 8, 1995 elections as provided in 78 of the Omnibus Elections Code, and that because it failed to do so, many votes were invalidated which could have been for him had the voters been told earlier who were qualified to be candidates; (2) that the decision of the Sangguniang Panlalawigan was final and executory and resulted in the automatic disqualification of petitioner, and the COMELEC did not need much time to decide the case for disqualification against Reyes since the latter did not appeal the decision in the administrative case ordering his removal; (3) that the COMELEC should have considered the votes cast for Reyes as stray votes. After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for lack of showing that the COMELEC committed grave abuse of discretion in issuing the resolutions in question. G.R. No. 120905 First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering him removed from office, is not yet final because he has not been served a copy thereof. It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. Manzo's certification states: On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel refused to accept.

On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr. Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the basis of his refusal. On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post Office to forward the ORDER to the Office of Mayor Renato U. Reyes. On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the following inscriptions on the back by the Postmaster: 1) 1st attempt addressee out of town 9:15 a.m., 3-23-95 2) 2nd attempt addressee cannot be contacted, out of town, 8:50 a.m., 3-24-95. 3) 3rd attempt addressee not contacted out of town 8:15 a.m., 3-24-95. 4) 4th attempt addressee refused to accept 8:15 a.m., 3-27-95.
On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to serve the same ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on the Mayor's Office with comments from the employees that they would not accept the same. 3

Rule 13, 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. 4 Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995. 5 If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it. Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the Regional Trial Court was pending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision. The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final.
In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect. 7

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

petitioner. The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. 9
Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. 10

In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner. Petitioner claims that the decision cannot be served upon him because at the hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the Sangguniang Panlalawigan pending final resolution of the petition forcertiorari. The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, 66 (a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall immediately be furnished to respondent and/or interested parties." It was the Sangguniang Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner Reyes. Second. The next question is whether there election of petitioner rendered the administrative charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v. COMELEC, 11 in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. 12Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the Court in the first Aguinaldo case: 13 The COMELEC applied Section 40(b) of the Local Government Code Republic Act 7160) which provides: Sec. 40. The following persons are disqualified from running for any elective local position: .....

(b) Those removed from office as a result of an administrative case. Republic Act 7160 took effect only on January 1, 1992. . . . There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present case. Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the then Secretary of Local Government was questioned by the petitioner in this Court and that to date, the petition remains unresolved. At any rate, petitioner's claim that he was not given time to present his evidence in the administrative case has no basis, as the following portion of the decision of the Sangguniang Panlalawigan makes clear: On November 28, 1994 the Sanggunian received from respondent's counsel a motion for extension of time to file a verified answer within 15 days from November 23, 1994. In the interest of justice another fifteen (15) day period was granted the respondent. On December 5, 1994 which is the last day for filing his answer, respondent instead filed a motion to dismiss and set the same for hearing on December 22, 1994. .... On January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial was received by respondent on January 7, 1995. Considering the fact that the last day within which to file his answer fell on December 5, 1994, respondent is obliged to file the verified answer on January 7, 1995 when he received the order denying his motion to dismiss. In the hearing of the instant case on January 26, 1995, the counsel for the complainant manifested that he be allowed to present his evidence for failure of the respondent to file his answer albeit the lapse of 19 days from January 7, 1995. The manifestation of complainant's counsel was granted over the objection of the respondent, and the Sanggunian in open session, in the presence of the counsel for the respondent, issued an order dated January 26, 1995 quoted as follows: "As shown from the record of this case, Mayor Renato U. Reyes of Bongabong failed to file his answer within the time prescribed by law, after the motion to dismiss was denied by this Sanggunian. The Sanggunian declares that respondent Mayor Renato U. Reyes failed to file his answer to the complaint filed against him within the reglementary period of fifteen (15) days. Counsel for respondent requested for reconsideration twice, which oral motions for reconsideration were denied for lack of merit. Art. 126 (a) (1) provides that failure of respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf. It is important to note that this case should be heard in accordance with what is provided for in the constitution that all parties are entitled to speedy disposition of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its authority to investigate this case come February 8, 1995 and therefore, in the interest of justice and truth the

Sanggunian must exercise that authority by pursuing the hearing of this case. Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will present his evidence on February 2, 3, and 6, 1995, and the counsel for respondent will be given a chance to cross-examine the witnesses that may be presented thereat." .... On February 2, 1995, the respondent through counsel despite due notice in open session, and by registered mail (registry receipt no. 1495) dated January 27, 1995, failed to appear. No telegram was received by this body to the effect that he will appear on any of the dates stated in the Order of January 26, 1995. Indeed, such in action is a waiver of the respondent to whatever rights he may have under our laws. All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution). Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election. G.R. No. 120940 We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. 14 The doctrinal instability caused by see-sawing rulings 15 has since been removed. In the latest ruling 16 on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. 17 The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election, suffice it to say that under R.A. No. 6646, 6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. For

the same reason, we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him before the elections. WHEREFORE, the petition in G.R. 120905 and G.R. No, 120940 are DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting: In concur in the ponencia of Mr. Justice V. Mendoza except insofar as it reiterates case law that where a first placer in an election is disqualified and cannot be proclaimed, the second placer cannot likewise be declared elected and proclaimed. I reiterate my opinion expressed in Marcos vs. Montejo, G.R. No. 119976, 18 September 1995, that when a first placer is disqualified, the qualified candidate with the highest number of votes should be proclaimed. In the case at bench, G.R. No. 120940, petitioner Garcia should have been proclaimed the elected mayor of Bongabong, Oriental Mindoro because he was the candidate with qualifications for the office who received the highest number of votes (after Renato U. Reyes was declared disqualified).

Separate Opinions PADILLA, J., concurring and dissenting: In concur in the ponencia of Mr. Justice V. Mendoza except insofar as it reiterates case law that where a first placer in an election is disqualified and cannot be proclaimed, the second placer cannot likewise be declared elected and proclaimed. I reiterate my opinion expressed in Marcos vs. Montejo, G.R. No. 119976, 18 September 1995, that when a first placer is disqualified, the qualified candidate with the highest number of votes should be proclaimed. In the case at bench, G.R. No. 120940, petitioner Garcia should have been proclaimed the elected mayor of Bongabong, Oriental Mindoro because he was the candidate with qualifications for the office who received the highest number of votes (after Renato U. Reyes was declared disqualified). Footnotes 1 212 SCRA 768 (1992). 2 232 SCRA 785 (1994). Also cited by the COMELEC were Geronimo v. Ramos, 136 SCRA 435 1985); Topacio v. Paredes, 23 Phil. 238 (1912).

3 Certification issued by Mario Inocencio C. Manzo, Secretary to the Sangguniang Panlalawigan, Rollo, p. 80. 4 Rule 13, 4. 5 Id., 8. 6 Petition, p. 6; Rollo, p. 7. 7 1 VICENTE J. FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES 759 (1973), citing Neff v. City of Indianapolis, 198 N.E. 328, Ind. 203. 8 This provision states: 67. Administrative Appeals. Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following: (a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlunsod of component cities and the sangguniang bayan; and (b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Decisions of the Office of the President shall be final and executory. 9 Palomares v. Jimenez, 90 Phil. 773 (1952). 10 1 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 456 (1989). 11 Res., G.R. Nos. 105128-30, May 14, 1992. 12 Aguinaldo v. Santos, 212 SCRA 768 (1992). 13 Supra note 11. 14 Frivaldo v. COMELEC, 174 SCRA 245 (1989); Labo, Jr. v. COMELEC, 176 SCRA 1 (1989); Abella v. COMELEC, 201 SCRA 253 (1991); Labo, Jr, v. COMELEC, 211 SCRA 297 (1992); Benito v. COMELEC, 235 SCRA 436 (1994). 15 Compare Topacio v. Paredes, 23 Phil. 238 (1912) with Ticson v. COMELEC, 103 SCRA 687 (1981); Geronimo v. Ramos, 136 SCRA 435 (1985), with Santos v. COMELEC, 137 SCRA 740 (1985). 16 Aquino v. COMELEC, G.R. No. 120265, September 18, 1995 17 Geronimo v. Ramos, supra note 15.

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Republic of the Philippines SUPREME COURT Manila EN BANC

R. No. 74930 February 13, 1989

CARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN UTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO DUL, petitioners,

LICIANO BELMONTE, JR., respondent.

cardo C. Valmonte for and in his own behalf and his co-petitioners.

e Solicitor General for respondent.

ORTES, J.:

titioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent directed:

(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the Februa 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or (b) to furnish petitioners with certified true copies of the documents evidencing their respective loans; and/or (c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5; paragraphing supplied.]

e controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter: June 4, 1986 Hon. Feliciano Belmonte GSIS General Manager Arroceros, Manila Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished with the l of names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of the documents evidencing their loan. Expenses in connection herewith shall be borne by us. If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of the present regim

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6 We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter.

Ver trul you

(Sgd.) RICARDO C VALMONTE [Rollo, p. 7.] the aforesaid letter, the Deputy General Counsel of the GSIS replied: June 17, 1986 Atty. Ricardo C. Valmonte

108 E. Benin Street Caloocan City Dear Compaero:

Possibly because he must have thought that it contained serious legal implications, President & General Manage Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986 requesting a list of th opposition members of Batasang Pambansa who were able to secure a clean loan of P2 million each on guaran of Mrs. Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between the GSIS and all those who borrow fro it, whoever they may be; that the GSIS has a duty to its customers to preserve this confidentiality; and that it wou not be proper for the GSIS to breach this confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I regret ve much that at this time we cannot respond positively to your request. Very truly yours, (Sgd.) MEYNARDO A. TIRO Deputy General Counsel [Rollo, p. 40.]

June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy Gene unsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now considering rselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of public interest." [Ro 8.] June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular Batasang mbansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]

parate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the petitio s given due course and the parties were required to file their memoranda. The parties having complied, the case was deemed bmitted for decision.

his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have ed to exhaust administrative remedies.

spondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners, howeve not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not exhausted, then titioners have no cause of action.

this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents ught, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to the nciple of exhaustion of administrative remedies.

mong the settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to have hausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience will not tertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given

portunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative medies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v. Provincial Board, 106 Phil 6 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 2 84, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional right to ormation, is one which can be passed upon by the regular courts more competently than the GSIS or its Board of Trustees, involving oes a purely legal question. Thus, the exception of this case from the application of the general rule on exhaustion of administrative medies is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether or not mandamus s to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to information.

e shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not titioners are entitled to access to the documents evidencing loans granted by the GSIS.

is is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information. In Taada vera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, ay 29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of matters of public interest and ordered e government agencies concerned to act as prayed for by the petitioners.

e pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:

The right of the people to information on matters of public concern shall be recognized. Access to official records and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

e right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which provided:

The right of the people to information on 'matters of public concern shall be recognized. Access to official record and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.

informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free change of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The rnerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental encies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner rkings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. Th stulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of vernmental power, would certainly be were empty words if access to such information of public concern is denied, except under itations prescribed by implementing legislation adopted pursuant to the Constitution.

titioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information e disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their professions. The ht of access to information ensures that these freedoms are not rendered nugatory by the government's monopolizing pertinent ormation. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between th vernment and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that t vernment may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the zenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues d have access to information relating thereto can such bear fruit.

e right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to ormation is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Fa m it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure * and honesty in the public rvice. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in

vernment.

t, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to information is ited to "matters of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's policy disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law."

nce, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is not empted by law from the operation of the constitutional guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]

e Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simpl because such matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541]

the Taada case the public concern deemed covered by the constitutional right to information was the need for adequate notice to the blic of the various laws which are to regulate the actions and conduct of citezens. InLegaspi, it was the "legitimate concern of citezens sure that government positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]

e information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to th position were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the intercession o eformer First Lady, Mrs. Imelda Marcos.

e GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for t nefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (th vised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and her amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of the Philippines sumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence d in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted the revision of the old SIS law (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by the stem" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed to grant ean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds are managed properly with e end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were embers of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the f see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were above board.

sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information ught clearly a matter of public interest and concern.

second requisite must be met before the right to information may be enforced through mandamus proceedings,viz., that the informatio ught must not be among those excluded by law.

spondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of nfidentiality restricts the indiscriminate dissemination of information.

t, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this tition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can y declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of th

itical branches of the government, and of the people themselves as the repository of all State power.

spondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws, the cuments evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information.

ere can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc[130 Phil. 415 (1968), 22 CRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into th personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government UItimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state, In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, other words, of the dignity and integrity of the individual has become increasingly important as modem society has developed. All the forces of technological age industrialization, urbanization, and organization operate narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support th enclave of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-445.]

hen the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to ormation and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from e above-quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to blic and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the se of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire sis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation would have no such ground for reli

ither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely rsonal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 4, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to be violated.

may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke eir right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot nied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible sitions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer blic scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 321 (1949).]

spondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not vered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to cuments, and papers pertaining to official acts, transactions, or decisions" only.

s argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the ople's right of access to official records.

s further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions ar t covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official" nsactions.

st of all, the "constituent ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v. nfederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 41, the Court said that the government, whether carrying out its sovereign attributes or running some business, discharges the same

nction of service to the people.

nsequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactio m the coverage and scope of the right to information.

oreover, the intent of the members of the Constitutional Commission of 1986, to include government-owned and controlled corporation d transactions entered into by them within the coverage of the State policy of fun public disclosure is manifest from the records of the oceedings: xxx xxx xxx THE PRESIDING OFFICER (Mr. Colayco). Commissioner Suarez is recognized. MR. SUAREZ. Thank you. May I ask the Gentleman a few question? MR. OPLE. Very gladly. MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" referring to the transactions of the State and when we say the "State" which I suppose would include all of the various agencies, departments, ministries and instrumentalities of the government.... MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer. MR. SUAREZ. Including government-owned and controlled corporations. MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And when we say "transactions" which should be distinguished fro contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contrac itself?

MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it c cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction. MR. OPLE. Yes, subject only to reasonable safeguards on the national interest. MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis supplied.)

nsidering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and nsidering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are

countable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation creat special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in vernment dealings.

fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that e latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be oided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons titled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 3, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.

wever, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names of th tasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the bruary 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos."

hough citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution es not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to quire information on matters of public concern.

must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right e thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the responden perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocamp Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard, there being no ty on the part of respondent to prepare the list requested.

HEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is RDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang mbansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible with s decision, as the GSIS may deem necessary.

O ORDERED.

rnan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialde d Regalado, JJ., concur.

parate Opinions

RUZ, J., concurring:

tead of merely affixing my signature to signify my concurrence, I write this separate opinion simply to say I have nothing to add to stice Irene R. Cortes' exceptionally eloquent celebration of the right to information on matters of public concern.

parate Opinions

RUZ, J., concurring:

tead of merely affixing my signature to signify my concurrence, I write this separate opinion simply to say I have nothing to add to stice Irene R. Cortes' exceptionally eloquent celebration of the right to information on matters of public concern.

otnotes

* Art. II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy o full public disclosure of all its transactions involving public interest.

** Art XI, Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with partriotism and justice and lead modest lives. The following provisions of the 1987 Constitution are further indicative of the policy of transparency:

Art. VII, Sec. 12. In case of serious illness of the President, the public shall be informed of the state of his health. The members of the cabinet in charge of national security and foreign relations and the Chief of Staff of t Armed Forces of the Philippines shall not be denied access to the President during such illness.

Art. XI, Sec. 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath or his assets liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutiona Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

Art. XII, Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.
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