You are on page 1of 52

G.R. No.

167011

April 30, 2008

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ, petitioners, vs. COMMISSION ON ELECTIONS and DENNIS GARAY, respondents. DECISION CHICO-NAZARIO, J.: This treats of the Petition for Review on Certiorari with a prayer for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction filed by petitioners Spouses Carlos S. Romualdez and Erlinda R. 1 2 Romualdez seeking to annul and set aside the Resolutions, dated 11 June 2004 and 27 January 2005 of the Commission on Elections (COMELEC) in E.O. Case No. 2000-36. In the Resolution of 11 June 2004, the COMELEC En Bancdirected the Law Department to file the appropriate Information with the proper court against 3 petitioners Carlos S. Romualdez and Erlinda Romualdez for violation of Section 10(g) and (j) in relation to 4 5 Section 45(j) of Republic Act No. 8189, otherwise known as The Voters Registration Act of 1996. Petitioners Motion for Reconsideration thereon was denied. The factual antecedents leading to the instant Petition are presented hereunder: On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol filed a Complaint-Affidavit with the COMELEC thru the Office of the Election Officer in Burauen, Leyte, charging petitioners with violation of 8 9 Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, similarly referred to as Batas Pambansa 10 Blg. 881; and Section 12 of Republic Act No. 8189. Private respondent deposed, inter alia, that: petitioners are of legal ages and residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City; on 9 May 2000 and 11 May 2000, petitioners Carlos S. Romualdez and Erlinda R. Romualdez, applied for registration as new voters with the Office of the Election Officer of Burauen, Leyte, as evidenced by Voter Registration Record Nos. 42454095 and 07902952, respectively; 11 in their sworn applications, petitioners made false and untruthful representations in violation of Section 10 of Republic Act Nos. 8189, by indicating therein that they are residents of 935 San Jose Street, Burauen, Leyte, when in truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City, and registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct No. 4419-A, as evidenced by Voter Registration Record Nos. 26195824 and 26195823; and that petitioners, knowing fully well said truth, intentionally and willfully, did not fill the blank spaces in said applications corresponding to the length of time which they have resided in Burauen, Leyte. In fine, private respondent charged petitioners, to wit: Respondent-spouses, Carlos Sison Romualdez and Erlinda Reyes Romualdez committed and consummated election offenses in violation of our election laws, specifically, Sec. 261, paragraph (y), subparagraph (2), for knowingly making any false or untruthful statements relative to any data or
6 7

information required in the application for registration, and of Sec. 261, paragraph (y), subparagraph (5), committed by any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration, both of the Omnibus Election Code (BP Blg. 881), and of Sec. 12, RA 8189 (Voter Registration Act) for failure to apply for transfer of registration 12 records due to change of residence to another city or municipality." The Complaint-Affidavit contained a prayer that a preliminary investigation be conducted by the COMELEC, and if the evidence so warrants, the corresponding Information against petitioners be filed before the Regional Trial Court (RTC) for the prosecution of the same. Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss dated 2 April 2001. They contended therein that they did not make any false or untruthful statements in their application for registration. They avowed that they intended to reside in Burauen, Leyte, since the year 1989. On 9 May 2000, they took actual residence in Burauen, Leyte, by leasing for five (5) years, the house of Juanito and Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte. On even date, the Barangay District III Council of Burauen passed a Resolution of Welcome, expressing therein its gratitude and appreciation to petitioner Carlos S. Romualdez for choosing the Barangay as 14 his official residence. On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC Investigating Officer, issued a Resolution, recommending to the COMELEC Law Department (Investigation and Prosecution Division), the filing of the appropriate Information against petitioners, disposing, thus: PREMISES CONSIDERED, the Law Department (Investigation and Prosecution Division), RECOMMENDS to file the necessary information against Carlos Sison Romualdez before the proper Regional Trial Court for violation of Section 10 (g) and (j) in relation to Section 45 (j) of Republic Act 8189 and to authorize the Director IV of the Law Department to designate a Comelec Prosecutor to handle the prosecution of 15 the case with the duty to submit periodic report after every hearing of the case. On 11 June 2004, the COMELEC En Banc found no reason to depart from the recommendatory Resolution of 28 November 2003, and ordered, viz: WHEREFORE, premises considered, the Law Department is hereby directed to file the appropriate information with the proper court against respondents CARLOS S. ROMUALDEZ AND ERLINDA ROMUALDEZ for violation of Section 10 (g) and (j) in relation to Section 45 (j) of the Republic Act No. 16 8189. Petitioners filed a Motion for Reconsideration thereon. Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed En Banc Resolution of 11 17 June 2004, rationalizing, thus:
13

However, perusal of the records reveal (sic) that the arguments and issues raised in the Motion for Reconsideration are merely a rehash of the arguments advanced by the Respondents in [their] Memorandum received by the Law Department on 17 April 2001, the same [w]as already considered by the Investigating Officer and was discussed in her recommendation which eventually was made as the basis for the En Bancs resolution. As aptly observed by the Investigating Officer, the filing of request for the cancellation and transfer of Voting Registration Record does not automatically cancel the registration records. The fact remains that at the time of application for registration as new voter of the herein Respondents on May 9 and 11, 2001 in the Office of Election Officer of Burauen, Leyte their registration in Barangay 4419-A, 18 Barangay Bagong Lipunan ng Crame Quezon City was still valid and subsisting. On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the COMELEC filed with the RTC, 19 Burauen, Leyte, separate Informations against petitioner Carlos S. Romualdez for violation of Section 10(g), in 20 relation to Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda R. Romualdez for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, subsequently docketed as Crim. Case No. BN06-03-4185 and Crim. Case No. BN-06-03-4183, respectively. Moreover, separate Informations for violation of 21 Section 10(j), in relation to Section 45(j) of Republic Act No. 8189 were filed against petitioners. Hence, petitioners come to us via the instant Petition, submitting the following arguments: I RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF ITS JURISDICTION; and II COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT PREMISED ITS RESOLUTION ON A MISAPPREHENSION OF FACTS AND FAILED TO CONSIDER CERTAIN RELEVANT FACTS THAT WOULD 22 JUSTIFY A DIFFERENT CONCLUSION. On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to 23 Cite for Indirect Contempt, alleging that two separate Informations, both dated 12 January 2006, were filed with the RTC by the COMELEC against petitioner Carlos S. Romualdez for violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-9184; and for violation of Section 10(g), in relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-03-9185. Similarly, the Motion alleged that the COMELEC filed with the RTC, two separate Informations, both dated 12 January 2006, against petitioner Erlinda R. Romualdez, charging her with the same offenses as those charged against petitioner Carlos S. Romualdez, and thereafter, docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.

On 20 June 2006, this Court issued a Resolution denying for lack of merit petitioners Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt. We shall now resolve, in seriatim, the arguments raised by petitioners. Petitioners contend that the election offenses for which they are charged by private respondent are entirely different from those which they stand to be accused of before the RTC by the COMELEC. According to petitioners, private respondents complaint charged them for allegedly violating, to wit: 1) Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code, and 2) Section 12 of the Voters Registration Act; however, the COMELEC En Banc directed in the assailed Resolutions, that they be charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the Voters Registration Act. Essentially, petitioners are of the view that they were not accorded due process of law. Specifically, their right to refute or submit documentary evidence against the new charges which COMELEC ordered to be filed against them. Moreover, petitioners insist that Section 45(j) of the Voters Registration Act is vague as it does not refer to a definite provision of the law, the violation of 25 26 which would constitute an election offense; hence, it runs contrary to Section 14(1) and Section 14(2), Article III of the 1987 Constitution. We are not persuaded. First. The Complaint-Affidavit filed by private respondent with the COMELEC is couched in a language which embraces the allegations necessary to support the charge for violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189. A reading of the relevant laws is in order, thus: Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as follows: SEC. 10 Registration of Voters. - A qualified voter shall be registered in the permanent list of voters in a precinct of the city or municipality wherein he resides to be able to vote in any election. To register as a voter, he shall personally accomplish an application form for registration as prescribed by the Commission in three (3) copies before the Election Officer on any date during office hours after having acquired the qualifications of a voter. The application shall contain the following data: xxxx (g) Periods of residence in the Philippines and in the place of registration; xxxx

24

(j) A statement that the application is not a registered voter of any precinct; The application for registration shall contain three (3) specimen signatures of the applicant, clear and legible rolled prints of his left and right thumbprints, with four identification size copies of his latest photograph, attached thereto, to be taken at the expense of the Commission. Before the applicant accomplishes his application for registration, the Election Officer shall inform him of the qualifications and disqualifications prescribed by law for a voter, and thereafter, see to it that the accomplished application contains all the data therein required and that the applicants specimen signatures, fingerprints, and photographs are properly affixed in all copies of the voters application. Moreover, Section 45(j) of the same Act, recites, thus: SEC. 45. Election Offense. The following shall be considered election offenses under this Act: xxxx (j) Violation of any of the provisions of this Act. Significantly, the allegations in the Complaint-Affidavit which was filed with the Law Department of the COMELEC, support the charge directed by the COMELEC En Banc to be filed against petitioners with the RTC. Even a mere perusal of the Complaint-Affidavit would readily show that Section 10 of Republic Act No. 8189 was specifically mentioned therein. On the matter of the acts covered by Section 10(g) and (j), the ComplaintAffidavit, spells out the following allegations, to wit: 5. Respondent-spouses made false and untruthful representations in their applications (Annexes "B" and "C") in violation of the requirements of Section 10, RA 8189 (The Voters Registration Act): 5.1 Respondent-spouses, in their sworn applications (Annexes "B" and "C", claimed to be residents of 935 San Jose [S]treet, Burauen, Leyte, when in truth and in fact, they were and still are residents of 113 Mariposa Loop, Mariposa [S]treet, Bagong Lipunan ng Crame, Quezon City and registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct No. 4419-A, a copy of the Certification issued by Hon. Emmanuel V. Gozon, Punong Barangay, Bagong Lipunan ng Crame, Quezon City is hereto attached and made an integral part hereof, as Annex "D"; 5.2 Respondent-spouses knowing fully well said truth, intentionally and willfully, did not fill the blank spaces in their applications (Annexes "B" and "C") corresponding to the length of time they have resided in Burauen, Leyte;

6. Respondent-spouses, in (sic) all intents and purposes, were and still are residents and registered voters of Quezon City, as evidenced by Voter Registration Record Nos. 26195824 and 26195823, respectively; photocopies of which are hereto attached as Annexes "E" and "F"[.] Likewise, attached is a "Certification" (Annex "G") of Ms. Evelyn B. Bautista, Officer-in-Charge of the Office of the Election Officer, Fourth District, Quezon City, dated May 31, 2000, together with a certified copy of the computer print-out of the list of voters of Precinct No. 4419-A (Annex "G-1" ) containing the names of voters Carlos Romualdez and Erlinda Reyes Romualdez. The Certification reads as follows: "THIS IS TO CERTIFY that as per office record MR. CARLOS ROMUALDEZ and MS. ERLINDA REYES ROMUALDEZ are registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City, Precinct Number 4419A with voters affidavit serial nos. 26195824 and 26195823, respectively. This certification is issued for whatever legal purpose it may serve." 7. Respondent-spouses, registered as new voters of the Municipality of Burauen, Leyte, [in spite of] the fact that they were and still are, registered voters of Quezon City as early as June 22, 1997; 7.1 That, Double Registration is an election offense. A person qualified as a voter is only allowed to register once. If a person registers anew as a voter in spite of a subsisting registration, the new application for registration will be disapproved. The registrant is also liable not only for an election offense of double registration, but also for another election offense of knowingly making any false or untruthful statement relative to any data or information required in the application for registration. In fact, when a person applies for registration as a voter, he or she fills up a Voter Registration Record form in his or her own handwriting, which contains a Certification which reads: "I do solemnly swear that the above statements regarding my person are true and correct; that I possess all the qualifications and none of the disqualifications of a voter; that the thumbprints, specimen signatures and photographs appearing herein are mine; and that I am 27 not registered as a voter in any other precinct." Petitioners cannot be said to have been denied due process on the claim that the election offenses charged against them by private respondent are entirely different from those for which they stand to be accused of before the RTC, as charged by the COMELEC. In the first place, there appears to be no incongruity between the charges as contained in the Complaint-Affidavit and the Informations filed before the RTC, notwithstanding the

denomination by private respondent of the alleged violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus Election Code and Section 12 of Republic Act No. 8189. Evidently, the Informations directed to be filed by the COMELEC against petitioners, and which were, in fact, filed with the RTC, were based on the same set of facts as originally alleged in the private respondents Complaint-Affidavit. Petitioners buttress their claim of lack of due process by relying on the case of Lacson v. Executive 28 Secretary. Citing Lacson, petitioners argue that the real nature of the criminal charge is determined by the actual recital of facts in the Complaint or Information; and that the object of such written accusations was to furnish the accused with such a description of the charge against him, as will enable him to make his defense. Let it be said that, inLacson, this court resolved the issue of whether under the allegations in the subject Informations therein, it is the Sandiganbayan or the Regional Trial Court which has jurisdiction over the multiple murder case against therein petitioner and intervenors. In Lacson, we underscored the elementary rule that the jurisdiction of a court is determined by the allegations in the Complaint or Information, and not by the evidence 29 presented by the parties at the trial. Indeed, in Lacson, we articulated that the real nature of the criminal charge is determined not from the caption or preamble of the Information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in 30 the Complaint or Information. Petitioners reliance on Lacson, however, does not support their claim of lack of due process because, as we have said, the charges contained in private respondents Complaint-Affidavit and the charges as directed by the COMELEC to be filed are based on the same set of facts. In fact, the nature of the criminal charges in private respondents Complaint-Affidavit and that of the charges contained in the Informations filed with the RTC, pursuant to the COMELEC Resolution En Banc are the same, such that, petitioners cannot claim that they were not able to refute or submit documentary evidence against the charges that the COMELEC filed with the RTC. Petitioners were afforded due process because they were granted the opportunity to refute the allegations in private respondents Complaint-Affidavit. On 2 April 2001, in opposition to the Complaint-Affidavit, petitioners filed a Joint Counter-Affidavit with Motion to Dismiss with the Law Department of the COMELEC. They similarly filed a Memorandum before the said body. Finding that due process was not dispensed with under the circumstances in the case at bar, we agree with the stance of the Office of the Solicitor General that petitioners were reasonably apprised of the nature and description of the charges against them. It likewise bears stressing that preliminary investigations were conducted whereby petitioners were informed of the complaint and of the evidence submitted against them. They were given the opportunity to adduce controverting evidence for their defense. In all these stages, petitioners actively participated. The instant case calls to our minds Orquinaza v. People, wherein the concerned police officer therein designated the offense charged as sexual harassment; but, the prosecutor found that there was no transgression of the anti-sexual harassment law, and instead, filed an Information charging therein petitioner with acts of lasciviousness. On a claim that there was deprivation of due process, therein petitioner argued that the Information for acts of lasciviousness was void as the preliminary investigation conducted was for sexual harassment. The court held that the designation by the police officer of the offense is not conclusive as it is within the competence of the prosecutor to assess the evidence submitted and determine therefrom the appropriate offense to be charged.
31

Accordingly, the court pronounced that the complaint contained all the allegations to support the charge of acts of lasciviousness under the Revised Penal Code; hence, the conduct of another preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because the complainant would only be presenting 32 the same facts and evidence which have already been studied by the prosecutor. The court frowns upon such 33 superfluity which only serves to delay the prosecution and disposition of the criminal complaint. Second. Petitioners would have this court declare Section 45(j) of Republic Act No. 8189 vague, on the ground that it contravenes the fair notice requirement of the 1987 Constitution, in particular, Section 14(1) and Section 14(2), Article III of thereof. Petitioners submit that Section 45(j) of Republic Act No. 8189 makes no reference to a definite provision of the law, the violation of which would constitute an election offense. We are not convinced. The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must 34 necessarily guess at its meaning and differ as to its application. However, this Court has imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be scrutinized. This Court has 35 36 declared that facial invalidation or an "on-its-face" invalidation of criminal statutes is not appropriate. We 37 have so enunciated in no uncertain terms in Romualdez v. Sandiganbayan, thus: In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.'" (underscoring supplied) "To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity." While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness. Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of "actual case and controversy" and permit decisions to be made in a

sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words: "[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required lineby-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided." For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a "manifestly strong medicine" to be employed "sparingly and only as a last resort." In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged. (Emphasis supplied.) At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial challenge. An appropriate "as applied" challenge in the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189the provisions upon which petitioners are charged. An expanded examination of the law covering provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or anticipatory. We further quote the relevant ruling in David v. Arroyo on the proscription anent a facial challenge:
38

protected conduct." Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation. Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort," and is "generally disfavored;" The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in Constitutional Law explains further: The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. Xxx xxx xxx And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application." It is subject to the same principles governing overbreadth doctrine. For one, it is also

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma, it was held: It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary action is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct . Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to

an analytical tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Be that as it may, the test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common 39 understanding and practice. This Court has similarly stressed that the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical 40 exactitude. As structured, Section 45 of Republic Act No. 8189 makes a recital of election offenses under the same Act. Section 45(j) is, without doubt, crystal in its specification that a violation of any of the provisions of Republic Act No. 8189 is an election offense. The language of Section 45(j) is precise. The challenged provision renders itself to no other interpretation. A reading of the challenged provision involves no guesswork. We do not see herein an uncertainty that makes the same vague. Notably, herein petitioners do not cite a word in the challenged provision, the import or meaning of which they 42 do not understand. This is in stark contrast to the case of Estrada v. Sandiganbayan where therein petitioner sought for statutory definition of particular words in the challenged statute. Even then, the Court in Estrada rejected the argument. This Court reasoned: The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law." Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, unless it is evident that the legislature intended a technical or special legal meaning to those words. The intention of the lawmakers who are, ordinarily, untrained philologists and lexicographers to use statutory phraseology in such a manner is always presumed. Perforce, this Court has underlined that an act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be 43 impossible to provide all the details in advance as in all other statutes.
41

The evident intent of the legislature in including in the catena of election offenses the violation of any of the provisions of Republic Act No. 8189, is to subsume as punishable, not only the commission of proscribed acts, but also the omission of acts enjoined to be observed. On this score, the declared policy of Republic Act No. 8189 is illuminating. The law articulates the policy of the State to systematize the present method of registration in order to establish a clean, complete, permanent and updated list of voters. A reading of Section 45 (j) conjointly with the provisions upon which petitioners are charged, i.e., Sections 10 (g) and (j) would reveal that the matters that are required to be set forth under the aforesaid sections are crucial to the achievement of a clean, complete, permanent and updated list of voters. The factual information required by the law is sought not for mere embellishment. There is a definitive governmental purpose when the law requires that such facts should be set forth in the application. The periods of residence in the Philippines and in the place of registration delve into the matter of residency, a requisite which a voter must satisfy to be deemed a qualified voter and registered in the permanent list of voters in a precinct of the city or municipality wherein he resides. Of even rationality exists in the case of the requirement in Section 10 (j), mandating that the applicant should state that he/she is not a registered voter of any precinct. Multiple voting by so-called flying voters are glaring anomalies which this country strives to defeat. The requirement that such facts as required by Section 10 (g) and Section 10 (j) be stated in the voters application form for registration is directly relevant to the right of suffrage, which the State has the right to regulate. It is the opportune time to allude to the case of People v. Gatchalian where the therein assailed law contains a similar provision as herein assailed before us. Republic Act No. 602 also penalizes any person who willfully violates any of the provisions of the Act. The Court dismissed the challenged, and declared the provision constitutional. The Court in Gatchalian read the challenged provision, "any of the provisions of this [A]ct" conjointly with Section 3 thereof which was the pertinent portion of the law upon which therein accused was prosecuted. Gatchalian considered the terms as all-embracing; hence, the same must include what is enjoined in Section 3 thereof which embodies the very fundamental purpose for which the law has been adopted. This Court ruled that the law by legislative fiat intends to punish not only those expressly declared unlawful but even those not so declared but are clearly enjoined to be observed to carry out the fundamental purpose of the 45 law. Gatchalian remains good law, and stands unchallenged. It also does not escape the mind of this Court that the phraseology in Section 45(j) is employed by Congress in a 46 number of our laws. These provisions have not been declared unconstitutional. Moreover, every statute has in its favor the presumption of validity. To justify its nullification, there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or 48 argumentative. We hold that petitioners failed to overcome the heavy presumption in favor of the law. Its constitutionality must be upheld in the absence of substantial grounds for overthrowing the same. A salient point. Courts will refrain from touching upon the issue of constitutionality unless it is truly unavoidable and is the very lis mota. In the case at bar, the lis mota is the alleged grave abuse of discretion of the COMELEC in finding probable cause for the filing of criminal charges against petitioners.
47 44

Third. Petitioners maintain that the COMELEC En Banc, premised its finding on a misapprehension of facts, and committed grave abuse of discretion in directing the filing of Informations against them with the RTC. We are once again unimpressed. The constitutional grant of prosecutorial power in the COMELEC finds statutory expression under Section 49 50 265 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code. The task of the COMELEC whenever any election offense charge is filed before it is to conduct the preliminary investigation of the case, and make a determination of probable cause. Under Section 8(b), Rule 34 of the COMELEC Rules of Procedure, the investigating officer makes a determination of whether there is a reasonable ground to believe that a crime 51 52 has been committed. In Baytan v. COMELEC, this Court, sufficiently elucidated on the matter of probable cause in the prosecution of election offenses, viz: It is also well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC's sound discretion. The COMELEC exercises the constitutional authority to investigate and, where appropriate, prosecute cases for violation of election laws, including acts or omissions constituting election frauds, offense and malpractices. Generally, the Court will not interfere with such finding of the COMELEC absent a clear showing of grave abuse of discretion. This principle emanates from the COMELEC's exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and to prosecute the same, except as may otherwise be provided 53 by law. It is succinct that courts will not substitute the finding of probable cause by the COMELEC in the absence of grave abuse of discretion. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as 54 where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility . According to the COMELEC En Banc, the investigating officer, in the case at bar, held that there was sufficient cause for the filing of criminal charges against petitioners, and found no reason to depart therefrom. Without question, on May 9 and 11 of 2001, petitioners applied for registration as new voters with the Office of the Election Officer of Burauen, Leyte, notwithstanding the existence of petitioners registration records as registered voters of Precinct No. 4419-A of Barangay Bagong Lipunan ng Crame, District IV, Quezon City. The 55 directive by the COMELEC which affirmed the Resolution of 28 November 2000 of Investigating Officer Atty. Tangaro-Casingal does not appear to be wanting in factual basis, such that a reasonably prudent man would conclude that there exists probable cause to hold petitioners for trial. Thus, in the aforesaid Resolution, the Investigating Officer, found: A violation therefore of Section 10 of Republic Act No. 8189 is an election offense. In the instant case, when respondents Carlos Romualdez and Erlinda Romualdez filed their respective applications for registration as new voters with the Office of the Election Officer of Burauen, Leyte on May 9 and 11, 2001, respectively, they stated under oath that they are not registered voters in other

precinct (VRR Nos. 42454095 and 07902941). However, contrary to their statements, records show they are still registered voters of Precinct No. 4419-A, barangay Bagong Lipunan ng Crame, District IV, Quezon City, as per VRR Nos. 26195825 and 26195823. In other words, respondents registration records in Quezon City is (sic) still in existence. While it may be true that respondents had written the City Election Officer of District IV, Quezon City for cancellation of their voters registration record as voters (sic) therein, they cannot presume that the same will be favorably acted upon. Besides, RA 8189 provides for the procedure in cases of transfer of residence to another city/municipality which must be complied with, to wit: "Section 12. Change of Residence to Another City or Municipality. Any registered voter who has transferred residence to another city or municipality may apply with the Election Officer of his new residence for the transfer of his registration records. The application for transfer of registration shall be subject to the requirements of notice and hearing and the approval of the Election Registration Board, in accordance with this Act. Upon approval, of the application for transfer, and after notice of such approval to the Election Officer of their former residence of the voter, said Election Officer shall transmit by registered mail the voters registration record to the Election Officer of the voters new residence." They cannot claim ignorance of the abovestated provision on the procedure for transfer of registration records by reason of transferred new residence to another municipality. Based on the affidavit executed by one Eufemia S. Cotoner, she alleged that the refusal of the Assistant Election Officer Ms. Estrella Perez to accept the letter of respondents was due to improper procedure because respondents should have filed the required request for transfer with the Election Officer of Burauen, Leyte. Despite this knowledge, however, they proceeded to register as new voters of Burauen, Leyte, notwithstanding the existence of their previous registrations in Quezon City. In their subsequent affidavit of Transfer of Voters Registration under Section 12 of Republic Act 8189, respondents admitted that they erroneously filed an application as a new voter (sic) with the office of the Election Officer of Burauen, Leyte, by reason of an honest mistake, which they now desire to correct. (underscoring ours). Respondents lose sight of the fact that a statutory offense, such as violation of election law, is mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance or lack of malice is beside the point. Commission of the act is sufficient. It is the act itself that is punished. xxxx In view of the foregoing, the Law Department respectfully submits that there is probable cause to hold respondents Carlos Romualdez and Erlinda Romualdez for trial in violation of Section 10(g) and (j) in

relation to Section 45(j) of Republic Act No. 8189. There is no doubt that they applied for registration 56 as new voters of Burauen, Leyte consciously, freely and voluntarily. G.R. No. 170338 We take occasion to reiterate that the Constitution grants to the COMELEC the power to prosecute cases or violations of election laws. Article IX (C), Section 2 (6) of the 1987 Constitution, provides: (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and where appropriate, prosecute cases or violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. This power to prosecute necessarily involves the power to determine who shall be prosecuted, and the corollary 57 right to decide whom not to prosecute. Evidently, must this power to prosecute also include the right to determine under which laws prosecution will be pursued. The courts cannot dictate the prosecution nor usurp its discretionary powers. As a rule, courts cannot interfere with the prosecutors discretion and control of the 58 criminal prosecution. Its rationale cannot be doubted. For the business of a court of justice is to be an impartial 59 tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to 60 rectify, any more than courts should correct the blunders of the defense. Fourth. In People v. Delgado, this Court said that when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the Information in the proper court, said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court. The records show that Informations charging petitioners with violation of Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189 had been filed with the RTC. The case must, thus, be allowed to take its due course. It may be recalled that petitioners prayed for the issuance of a Temporary Restraining Order or Writ of Preliminary Injunction before this Court to restrain the COMELEC from executing its Resolutions of 11 June 2004 and 27 January 2005. In a Resolution dated 20 June 2006, this Court En Banc denied for lack of merit petitioners Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for Indirect Contempt. Logically, the normal course of trial is expected to have continued in the proceedings a quo. WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated 11 June 2004 and 27 January 2005 of the COMELEC En Banc are AFFIRMED. Costs against petitioners. SO ORDERED. Republic of the Philippines SUPREME COURT Manila
61

EN BANC December 23, 2008

VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL REFORMS, respondents. x----------------------x G.R. No. 179275 December 23, 2008

SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners, vs. THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT THE HONORABLE MANUEL VILLAR, respondents. x----------------------x MAJ. LINDSAY REX SAGGE, petitioner-in-intervention x----------------------x AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. TRILLANES, respondents-intervenors DECISION NACHURA, J.: More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly between the President of the Philippines and a high-ranking official of the Commission on Elections (COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a controversy that placed the legitimacy of the present administration on the line, and resulted in the near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci" tapes, allegedly contained the Presidents instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings were to become the subject of heated legislative hearings conducted separately by committees of 1 both Houses of Congress.

In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G. Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional investigation jointly conducted by the Committees on Public Information, Public Order and Safety, National Defense and Security, Information and Communications Technology, and Suffrage and Electoral Reforms (respondent House Committees). During the inquiry, several versions of the wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the supposed three-hour taped conversation. After prolonged and impassioned debate by the committee members on the admissibility and authenticity of the recordings, the tapes were eventually played in 2 the chambers of the House. On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely. Nevertheless, they decided to prepare committee reports based on the said recordings and the testimonies of 3 the resource persons. Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of Preliminary 4 Injunction docketed as G.R. No. 170338. He prayed that the respondent House Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped conversations in their committee reports and for any other purpose. He further implored that the said recordings and any reference thereto be ordered stricken off the records of the inquiry, and the respondent House Committees directed to desist from further 5 using the recordings in any of the House proceedings. Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly stopped. After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson promised to provide the public "the whole unvarnished truth the whats, whens, wheres, whos and whys" of the alleged wiretap, and sought an inquiry into the perceived willingness of telecommunications providers to participate in nefarious wiretapping activities. On motion of Senator Francis Pangilinan, Senator Lacsons speech was referred to the Senate Committee on 6 National Defense and Security, chaired by Senator Rodolfo Biazon, who had previously filed two bills seeking to regulate the sale, purchase and use of wiretapping equipment and to prohibit the Armed Forces of the 7 Philippines (AFP) from performing electoral duties. In the Senates plenary session the following day, a lengthy debate ensued when Senator Richard Gordon aired 8 his concern on the possible transgression of Republic Act (R.A.) No. 4200 if the body were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her considered view that the Constitution absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci" tapes. However, she recommended a legislative investigation

into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Police or other government 9 entities in the alleged illegal wiretapping of public officials. On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a Temporary Restraining 10 Order and/or Writ of Preliminary Injunction, docketed as G.R. No. 179275, seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main that the intended legislative inquiry violates 11 R.A. No. 4200 and Section 3, Article III of the Constitution. As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the "Hello Garci" 12 13 14 tapes on September 7, 17 and October 1, 2007. Intervening as respondents, Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino, Rodolfo G. Biazon, 16 Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed their Comment on the petition on September 25, 2007. The Court subsequently heard the case on oral argument.
17 15

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource persons summoned by the Senate to appear and testify at its hearings, moved to intervene as petitioner in G.R. No. 18 179275. On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275.
19

It may be noted that while both petitions involve the "Hello Garci" recordings, they have different objectivesthe first is poised at preventing the playing of the tapes in the House and their subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation. The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275. -IBefore delving into the merits of the case, the Court shall first resolve the issue on the parties standing, argued at length in their pleadings. In Tolentino v. COMELEC, we explained that "*l+egal standing or locus standi refers to a personal and substantial interest in a case such that the party has sustained or will sustain direct injury because of the challenged governmental act x x x," thus,
20

generally, a party will be allowed to litigate only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a 21 favorable action. The gist of the question of standing is whether a party has "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 22 court so largely depends for illumination of difficult constitutional questions." However, considering that locus standi is a mere procedural technicality, the Court, in recent cases, has relaxed 23 the stringent direct injury test. David v. Macapagal-Arroyo articulates that a "liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the 24 25 constitutionality or validity of laws, regulations and rulings." The fairly recent Chavez v. Gonzales even permitted a non-member of the broadcast media, who failed to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary of Justice and the National Telecommunications Commission. The majority, in the said case, echoed the current policy that "this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, in keeping with the Courts duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws, and 26 that they have not abused the discretion given to them." In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the members of the 27 respondent committees as one of the voices in the recordings. Obviously, therefore, petitioner Garcillano stands to be directly injured by the House committees actions and charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition. In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse constitutional processes through the conduct of 28 legislative inquiries purportedly in aid of legislation. Intervenor Sagge alleges violation of his right to due process considering that he is summoned to attend the Senate hearings without being apprised not only of his rights therein through the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of the intended legislation which underpins the investigation. He further intervenes as a taxpayer bewailing the useless and wasteful expenditure of public funds 29 involved in the conduct of the questioned hearings.

Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that intervenor 30 Sagge asserts his constitutional right to due process, they satisfy the requisite personal stake in the outcome of the controversy by merely being citizens of the Republic. Following the Courts ruling in Francisco, Jr. v. The House of Representatives, we find sufficient petitioners Ranadas and Agcaoilis and intervenor Sagges allegation that the continuous conduct by the Senate of the 32 questioned legislative inquiry will necessarily involve the expenditure of public funds. It should be noted that inFrancisco, rights personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the Court granted standing to the petitioners therein for, as in this case, they invariably invoked the vindication of their own rightsas taxpayers, members of Congress, citizens, individually or in a class suit, and members of the bar and of the legal professionwhich were 33 also supposedly violated by the therein assailed unconstitutional acts. Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor Sagge advance constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. The issues are of transcendental and paramount importance not only to the public but also to the 34 Bench and the Bar, and should be resolved for the guidance of all. Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners Ranada and Agcaoili and intervenor Sagge. - II The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the determination and 35 resolution of actual cases and controversies. By actual cases, we mean existing conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to 36 actualities. Neither will the Court determine a moot question in a case in which no practical relief can be 37 granted. A case becomes moot when its purpose has become stale. It is unnecessary to indulge in academic discussion of a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, 38 in the nature of things, cannot be enforced. In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings and from including the same in their committee report. He likewise prays that the said tapes be stricken off the records of the House proceedings. But the Court notes that the recordings were already played in the House and heard by 39 its members. There is also the widely publicized fact that the committee reports on the "Hello Garci" inquiry 40 were completed and submitted to the House in plenary by the respondent committees. Having been overtaken by these events, the Garcillano petition has to be dismissed for being moot and academic. After all, prohibition is
31

a preventive remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for 41 an act already accomplished. - III As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to continue with the conduct of the questioned legislative inquiry without duly published rules of procedure, in clear derogation of the constitutional requirement. Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he 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 requisite of publication of the rules is intended to satisfy the basic 42 requirements of due process. Publication is indeed imperative, for it will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or rule of which he had no notice whatsoever, not even 43 a constructive one. What constitutes publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after 15 days following the completion of their publication either in the Official Gazette, 44 or in a newspaper of general circulation in the Philippines." The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in newspapers of general circulation only 45 th in 1995 and in 2006. With respect to the present Senate of the 14 Congress, however, of which the term of half of its members commenced on June 30, 2007, no effort was undertaken for the publication of these rules when they first opened their session. Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on 46 Accountability of Public Officers and Investigations, we said: Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSGs explanation: The phrase "duly published rules of procedure" requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senates membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation th conducted by the 14 Senate, are therefore, procedurally infirm. Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of 47 Procedure must be republished by the Senate after every expiry of the term of twelve Senators. The subject was explained with greater lucidity in our Resolution (On the Motion for Reconsideration) in the same case, viz.: On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing," as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states: RULE XLIV UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status. This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules of procedure) states:
48

RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision. The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. RULE LII DATE OF TAKING EFFECT SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from theRules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business. The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice. If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.

Respondents justify their non-observance of the constitutionally mandated publication by arguing that the rules have never been amended since 1995 and, despite that, they are published in booklet form available to anyone 49 for free, and accessible to the public at the Senates internet web page. The Court does not agree. The absence of any amendment to the rules cannot justify the Senates defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of legislation only in accordance with duly published rules of procedure, and does not make any distinction whether or not these rules have undergone amendments or revision. The constitutional mandate to publish the said rules prevails over any custom, practice or tradition followed by the Senate. Justice Carpios response to the same argument raised by the respondents is illuminating: The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form available at the Senate, is not sufficient under the Taada v. Tuvera ruling which requires publication either in the Official Gazette or in a newspaper of general circulation. The Rules of Procedure even provide that the rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation," precluding any other form of publication. Publication in accordance with Taada is mandatory to comply with the due process requirement because the Rules of Procedure put a persons liberty at risk. A person who violates the Rules of Procedure could be arrested and detained by the Senate. The invocation by the respondents of the provisions of R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as the functional equivalent of a 51 written document only for evidentiary purposes. In other words, the law merely recognizes the admissibility in 52 evidence (for their being the original) of electronic data messages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations. Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases. The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have caused the publication of the rules, because it can do so only "in accordance with its duly published rules of procedure." Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the legislative investigation subject thereof still could not be undertaken by the respondent Senate Committees, because no published rules governed it, in clear contravention of the Constitution. With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in the consolidated petitions.
50

WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on the "Hello Garci" tapes. SO ORDERED.

On petitioners request, a formal hearing was scheduled. Their request for a copy of the Security Investigation was denied, however, on the ground that they are only entitled to "be informed of the charges, and they cannot demand for the report as it is still on the confidential stage." During the June 25, 2001 formal hearing scheduled by PLDT, representatives from petitioners union Manggagawa ng Komunikasyon sa Pilipinas (MKP) were present. As petitioners counsel could not attend the 4 hearing due to a previously scheduled hearing at the RTC Makati, petitioners requested for another setting but 5 it was denied. Petitioners were, however, given a non-extendible period of three days to submit their evidence.

G.R. No. 180888

September 18, 2009

ROLANDO PLACIDO and EDGARDO CARAGAY, Petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, INCORPORATED, Respondents. DECISION CARPIO MORALES, J.: Petitioners Rolando Placido (Placido) and Edgardo Caragay (Caragay) had been employed since January 22, 1981 and June 1, 1983, respectively, both as cable splicers by respondent Philippine Long Distance Telephone Company, Incorporated (PLDT). It appears that since August 2000, PLDT had been receiving reports of theft and destruction of its cables. On March 13, 2001, PLDT Duty Inspector Ricardo Mojica (Mojica) and PLDT Security Guard/Driver Mark Anthony Cruto (Cruto), responding to a report that cables were being stripped and burned in one of the residences along Alley 2 Street, Project 6, Quezon City, proceeded to the said area where they saw petitioners service vehicle parked infront of the house at No. 162. They likewise saw petitioners stripping and burning cables inside the compound of the house which turned out to belong to Caragays mother. With the assistance of police and barangay officials, PLDT recovered the cables bearing the "PLDT" marking. The incident spawned the filing, on complaint of PLDT, of an Information for Qualified Theft against petitioners before the Regional Trial Court (RTC) of Quezon City, docketed as Criminal Case No. 99467. In a related move, PLDT required petitioners to explain within 72 hours why no severe disciplinary action should 2 be taken against them for Serious Misconduct and Dishonesty. After several requests for extension to submit 3 their explanations, petitioners submitted a joint explanation on June 11, 2001 denying the charges against them. By their claim, they were on their way back from the house of one Jabenz Quezada (Quezada) from whom they were inquiring about a vehicle when they were detained by Mojica.
1

Mojica testified during the hearing that when petitioners saw him as they were stripping and burning the cables, they fled but surfaced thirty minutes later from Alley 6 Street wearing different clothes; and that according to Rodolfo R. Anor, PLDT Work Order Supervisor, the cables could be dead cables that were not recovered by 6 contractors. Petitioners counsel later reiterated the request for a setting of a hearing and an audiotape of the June 25, 2001 7 hearing, but the same was denied. A third time request for another hearing was likewise denied. On May 17, 2002, PLDT sent notices of termination to petitioners, prompting them to file on May 24, 2002 a 9 complaint for illegal dismissal before the Labor Arbiter. By Decision of January 12, 2004, Labor Arbiter Catalino R. Laderas held that petitioners were illegally dismissed, there being no provision in PLDTs rules and regulations that stripping and burning of PLDT cables and wires constitute Serious Misconduct and Dishonesty; that PLDTs seeming lack of urgency in taking any disciplinary 10 action against petitioners negates the charges; and that dismissal is too harsh, given petitioners years of service and lack of previous derogatory record. On appeal, the National Labor Relations Commission (NLRC), by Decision dated February 28, 2005, reversed the 12 Labor Arbiters Decision and dismissed petitioners complaint for lack of merit, it holding that they were validly 13 dismissed for just cause "theft of company property." In brushing aside petitioners disclaimer of the acts attributed to them, the NLRC noted that, inter alia, they failed to present any affidavit of Quezada to prove that they were indeed at his house inquiring about a vehicle. Petitioners appealed to the Court of Appeals. In the meantime or on February 15, 2007, Branch 104 of the Quezon City RTC acquitted petitioners in Criminal Case No. 99467 on the ground of reasonable doubt, it holding that the prosecution failed to prove that the 14 cables were in fact stolen from PLDT.
11 8

By Decision of September 28, 2007, the appellate court affirmed the NLRC Decision, it holding that since the cables bore the "PLDT" marking, they were presumed to be owned by PLDT, hence, the burden of evidence shifted on petitioners to prove that they were no longer owned by PLDT, but they failed. Ruling out petitioners claim that they were denied due process, the appellate court held that they were given ample opportunity to defend themselves during the administrative hearing during which they were furnished with written invitations for their appearance before the investigating unit on several dates, but they refused to submit themselves to the investigation. Petitioners motion for reconsideration having been denied by 16 17 Resolution of December 17, 2007, the present petition was filed. Petitioners insist that the presence of the "PLDT" marking on the cables does not prove that PLDT owned them at the time. They aver that PLDT disposes of used and unserviceable materials, including cables and telephone wires which had been declared junked and classified as scrap --- a substantial amount of which remains insulated ---, and once disposed of, these cables, although still bearing the "PLDT" marking, are no longer its property . In fine, petitioners contend that PLDTs ownership of cables or wires bearing the "PLDT" marking on the insulation cannot be presumed, hence, a persons possession thereof does not give rise to the presumption that 18 he obtained or stole them from PLDT. Additionally, petitioners aver that they were denied due process when PLDT refused to furnish them a copy of the Investigation Report and grant them a formal hearing in which they could be represented by counsel of their choice. The petition is bereft of merit. As did the NLRC and the Court of Appeals, the Court finds that as the cables bore the "PLDT" marking, the presumption is that PLDT owned them. The burden of evidence thus lay on petitioners to prove that they acquired the cables lawfully. This they failed to discharge. And as also did the NLRC and the Court of Appeals, the Court finds that petitioners were not denied due process. Article 277 of the Labor Code provides: xxxx (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just or authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the workers whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to the guidelines set by the Department of Labor and Employment.
19

15

Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. (Emphasis supplied) And the Omnibus Rules Implementing the Labor Code require a hearing and conference during which the employee concerned is given the opportunity to respond to the charge, and present his evidence or rebut the evidence presented against him. Thus Rule I, Section 2(d), provides: Section 2. Security of Tenure. xxxx (d) In all cases of termination of employment, the following standards of due process shall be substantially observed: For termination of employment based on just causes as defined in Article 282 of the Labor Code: (i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side. (ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him.1avvphi1 (iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. (Emphasis and underscoring supplied) The abovequoted provision of Section 2(d) should not be taken to mean, however, that holding an actual hearing or conference is a condition sine qua non for compliance with the due process requirement in case of termination of employment. For the test for the fair procedure guaranteed under the above-quoted Article 277(b) of the Labor Code is not whether there has been a formal pretermination confrontation between the employer and the employee. The "ample opportunity to be heard" standard is neither synonymous nor similar to 20 a formal hearing. To confine the employees right to be heard to a solitary form narrows down that right. The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side. A formal or trial type hearing is

not at all times and in all instances essential to due process, the requirements of which are satisfied where the 21 parties are afforded fair and reasonable opportunity to explain their side of the controversy. In the present case, petitioners were, among other things, given several written invitations to submit themselves to PLDTs Investigation Unit to explain their side, but they failed to heed them. A hearing, which petitioners attended along with their union MKP representatives, was conducted on June 25, 2001 during which the principal witnesses to the incident were presented. Petitioners were thus afforded the opportunity to confront those witnesses and present evidence in their behalf, but they failed to do so. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated September 28, 2007 is AFFIRMED. SO ORDERED. G.R. No. 188308 October 15, 2009

Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was conducted at the COMELECs office in Intramuros. After revision, the parties presented their other evidence, leading to the parties formal offer of their respective evidence. The COMELEC approved the parties formal offer of evidence and then required the parties to submit their respective memoranda. The parties complied with the COMELECs order. The case was thereafter submitted for resolution. On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend further proceedings. . The COMELECs Second Division denied the petitioners motion in its Order of April 29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of the election protest; thus, it concluded that it would continue the proceedings after proper coordination with the SET. The petitioner moved to reconsider this Order, but the COMELECs Second Division denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELECs continued action specifically, the appreciation of ballots on the provincial election contest at the SET offices. Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioners counsel wrote the SET Secretary, Atty. Irene 2 Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings. The SET Secretary responded on June 17, 2009 as follows: x x x please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle. Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern." While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other 3 proceedings in local election protest cases within its premises as may be requested. [emphasis supplied] THE PETITION The SET Secretarys response triggered the filing of the present petition raising the following ISSUES

JOSELITO R. MENDOZA, Petitioner, vs. COMMISSION ON ELECTIONS and ROBERTO M. PAGDANGANAN, Respondents. DECISION BRION, J.: The present case involves a clash between the power under the Philippine Constitution of the respondent Commission on Elections (COMELEC) in the handling of a provincial election contest, and the claimed due process rights of a party to the contest. The petitioner Joselito R. Mendoza (the petitioner) essentially asserts in 1 his petition for certiorari that the COMELEC conducted proceedings in the election contest for the gubernatorial position of the Province of Bulacan, between him and the respondent Roberto M. Pagdanganan (the respondent), without due regard to his fundamental due process rights. The COMELEC, on the other hand, claims that its decision-making deliberations are internal, confidential and do not require notice to and the participation of the contending parties. THE ANTECEDENTS The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of Governor. The respondent seasonably filed an election protest with the COMELEC, which was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi,

A. WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER. B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO AN EXCESS OF JURISDICTION IN APPRECIATING BALLOTS WHICH ARE NOT IN ITS OFFICIAL CUSTODY AND ARE OUTSIDE ITS OWN PREMISES, AUTHORITY AND CONTROL. The petitioner argues that the election protest involves his election as Governor; thus, its subject matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims entitlement to notice and participation in all matters that involve or are related to the election protest. He further asserts that he had the legitimate expectation that no further proceedings would be held or conducted in the case after its submission for decision. Citing the commentaries of Father Joaquin Bernas, the petitioner argues that the proceedings before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of judicial due process specifically, (a) opportunity to be heard and (b) that judgment be rendered only after lawful hearing apply. Notices in judicial dispute, he claims, are not really just a matter of courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a party to be heard. He further cites Justice Isagani 5 A. Cruz, who wrote: x x x Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interest. The petitioner claims that without notice to him of the proceedings, the due process element of the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial proceeding held without notice to the parties could be described as a lawful hearing, especially a proceeding which has as its subject matter the sovereign will of an entire province. He was therefore denied his day in court, he claims, when the COMELEC conducted the examination and appreciation of ballots. The proceedings should be stopped and declared null and void; its future results, too, should be nullified, as nothing derived from the anomalous and unconstitutional clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should not be admitted for any purpose and/or in any judicial proceeding. Other than his due process concern, the petitioner takes issue with the COMELECs appreciation of ballots even when the ballots and other election materials were no longer in its official custody and were outside its premises, authority and control. He asserts that an important element of due process is that the judicial body should have jurisdiction over the property that is the subject matter of the proceedings. In this case, the COMELEC has transferred possession, custody and jurisdiction over the ballots to the SET, a tribunal separate and independent from the COMELEC and over which the COMELEC exercises no authority or jurisdiction. For the
4

COMELEC to still conduct proceedings on property, materials and evidence no longer in its custody violates the principle of separation of powers. The petitioner also points out that the COMELECs unilateral appreciation of the ballots in the SET premises deviates from the Commissions usual and time honored practice and procedure of conducting proceedings within its premises and while it has custody over the ballots. There is no precedent, according to the petitioner, for this deviation, nor is there any compelling reason to make the present case an exception. Citing Cabagnot v. Commission on Elections (G.R. No. 124383, August 9, 1996) which involves a transfer or change of venue of the revision of ballots, the petitioner alleges that this Court has been very emphatic in denouncing the COMELEC for its departure from its own rules and usual practice; while Cabagnot involves the issue of change of venue, the petitioner finds parallel applicability in the present case which also involves a deviation from COMELEC rules and usual practice. The petitioner adds that the act of the Second Division is effectively an arrogation of the authority to promulgate rules of procedure a power that solely belongs to the COMELEC en banc. After a preliminary finding of a genuine due process issue, we issued a Status Quo Order on July 14, 2009. THE RESPONDENTS COMMENTS In his Comment to the Petition with Extremely Urgent Motion to Lift/Dissolve Status Quo Ante Order, the private respondent asserts that the petition contains deliberate falsehoods and misleading allegations that led the Court to grant the injunctive relief the petitioner had asked. He asserts that the "proceeding" the petitioner stated in his petition was actually the COMELECs decision-making process, i.e., the appreciation of ballots, which is a procedure internal to the Members of the Second Division of the COMELEC and their staff members; no revision of ballots took place as revision had long been finished. What was therefore undertaken within the SETs premises was unilateral COMELEC action that is exclusive to the COMELEC and an internal matter that is confidential in nature. In this light, no due process violation ever arose. The private respondent also asserts that the petitioner cannot claim that he was not notified of and denied participation in the revision proceedings, as the petitioner himself is fully aware that the revision of the ballots was completed as early as July 28, 2008 and the petitioner was present and actively participated in the entire proceedings, all the way to the filing of the required memoranda. Thus, the petitioners right to due process was duly satisfied. The private respondent implores us to commence contempt proceedings against the petitioner who, the respondent claims, has not been forthright in his submissions and was not guided by the highest standards of truthfulness, fair play and nobility in his conduct as a party and in his relations with the opposing party, the other counsel and the Court. Lastly, the private respondent posits that the present petition was filed out of time i.e., beyond the reglementary period provided under Rule 64. All these reasons, the private respondent argues, constitute sufficient basis for the lifting of the status quo order and the dismissal of the petition.

Public respondent COMELEC, for its part, claims that the petition is without basis in fact and in law and ought to be dismissed outright. Given the possibility of simultaneous election contests involving national and local officials, it has institutionalized an order of preference in the custody and revision of ballots in contested ballot boxes. The established order of preference is not without exception, as the expeditious disposition of protest cases is a primary concern. Additionally, the order of preference does not prevent the COMELEC from proceeding with pending protest cases, particularly those already submitted for decision. It claims that it has wide latitude to employ means to effectively perform its duty in safeguarding the sanctity of the elections and the integrity of the ballot. The COMELEC further argues that in the absence of a specific rule on whether it can conduct appreciation of ballots outside its premises or official custody, the issue boils down to one of discretion the authority of the COMELEC to control as it deems fit the processes or incidents of a pending election protest. Under Section 4 of the COMELEC Rules of Procedure, the COMELEC may use all auxiliary writs, processes and other means to carry into effect its powers or jurisdiction; if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or the Rules of Procedure, any suitable process or proceeding not prohibited by law or by its rules may be adopted. The COMELEC lastly submits that while due process requires giving the parties an opportunity to intervene in all stages of the proceedings, the COMELEC in the present case is not actually conducting further proceedings requiring notice to the parties; there is no revision or correction of the ballots, as the election protest had already been submitted for resolution. When the COMELEC coordinated with the SET, it was simply for purposes of resolving the submitted provincial election contest before it; the parties do not take part in this aspect of the case which necessarily requires utmost secrecy. On the whole, the petitioner was afforded every opportunity to present his case. To now hold the election protest hostage until the conclusion of the protest pending before the SET defeats the COMELECs mandate of ensuring free, orderly and honest election. THE COURTS RULING We review the present petition on the basis of the combined application of Rules 64 and 65 of the Rules of Court. While COMELEC jurisdiction over the Bulacan election contest is not disputed, the legality of subsequent COMELEC action is assailed for having been undertaken with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, our standard of review is "grave abuse of discretion," a term that defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is 6 exercised in an arbitrary and despotic manner by reason of passion and hostility." Mere abuse of discretion is 7 not enough; the abuse must be grave to merit our positive action. After due consideration, we find the petition devoid of merit. The petition is anchored on the alleged conduct of proceedings in the election protest following the completed revision of ballots at the SET premises without notice to and without the participation of the petitioner.

Significantly, "the conduct of proceedings" is confirmed by the SET Secretary in the letter we quoted above. As the issues raised show the petitioners focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has 9 long passed. The substantive issue we are primarily called upon to resolve is whether there were proceedings within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in other words, the issue is whether the petitioners right to due process has been violated. A finding of due process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of discretion. As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises judicial power in its action over provincial election contests and has argued its due process position from this view. We take this opportunity to clarify that judicial power in our country is "vested in one Supreme Court and in such lower courts 10 as may be established by law." This exclusive grant of authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the Constitution which further states that "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.. .," thus constitutionally locating the situs of the exercise of judicial power in the courts. In contrast with the above definitions, Section 2, Article IX(C) of the Constitution lists the COMELECs powers and functions, among others, as follows: (1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving electivebarangay officials by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay officials shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency 11 and its powers are essentially executive in nature (i.e., to enforce and administer election laws), quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate

jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure). Historically, the COMELEC has always been an administrative agency whose powers have been increased from the 1935 Constitution to the present one, to reflect the countrys awareness of the need to provide greater regulation and protection to our electoral processes to ensure their integrity. In the 1935 Constitution, the powers and functions of the COMELEC were defined as follows: SECTION 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest election. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court. [emphasis supplied] These evolved into the following powers and functions under the 1973 Constitution: (1) Enforce and administer all laws relative to the conduct of elections. (2) Be the sole judge of all contests relating to the elections, returns, and qualifications of all members of the National Assembly and elective provincial and city officials. (3) Decide, save those involving the right to vote, administrative questions affecting elections, including the determination of the number and location of polling places, the appointment of election officials and inspectors, and the registration of voters. These powers have been enhanced in scope and details under the 1987 Constitution, but retained all the while the character of an administrative agency. The COMELECs adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings 12 and exercise discretion of a judicial nature; it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the 13 case and renders judgment. Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government 14 and is not a court exercising judicial power in the constitutional sense; hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial.

As will be seen on close examination, the 1973 Constitution used the unique wording that the COMELEC shall "be the sole judge of all contests," thus giving the appearance that judicial power had been conferred. This phraseology, however, was changed in the 1987 Constitution to give the COMELEC "exclusive jurisdiction over all contests," thus removing any vestige of exercising its adjudicatory power as a court and correctly aligning it with 15 what it is a quasi-judicial body. Consistent with the characterization of its adjudicatory power as quasijudicial, the judicial review of COMELEC en banc decisions (together with the review of Civil Service Commission decisions) is via the prerogative writ of certiorari, not through an appeal, as the traditional mode of review of quasi-judicial decisions of administrative tribunals in the exercise the Courts supervisory authority. This means that the Court will not supplant the decision of the COMELEC as a quasi-judicial body except where a grave abuse of discretion or any other jurisdictional error exists. The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial 16 tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial Relations, quoted below: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. xxx (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached. (4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it. These are now commonly referred to as cardinal primary rights in administrative proceedings.

The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to 17 seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process. The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a 18 subordinate, must be based on substantial evidence. Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decision-making due process rights and is similar in substance to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is 19 based. As a component of the rule of fairness that underlies due process, this is the "duty to give reason" to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker. In the present case, the petitioner invokes both the due process component rights at the hearing and deliberative stages and alleges that these component rights have all been violated. We discuss all these allegations below. The Right to Notice and to be Heard. a. At the Hearing and Revision of Ballots. Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the proceedings of the election protest until the case was deemed submitted for resolution; he had representation at the revision of the ballots, duly presented his evidence, and summed up his case through a memorandum. These various phases of the proceedings constitute the hearing proper of the election contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing stage rights require. In these proceedings, the petitioner stood head-to-head with the respondent in an adversarial contest where both sides were given their respective rights to speak, make their presentations, and controvert each others submission, subject only to established COMELEC rules of procedures. Under these undisputed facts, both parties had their day in court, so to speak, and neither one can complain of any denial of notice or of the right to be heard.

b. At the "Proceedings" at the SET. A critical question to be answered in passing upon due process questions at this stage of the election contest is the nature of the so-called "proceedings" after the ballots and other materials pertinent to the provincial election contest were transferred to the SET. In the petition, the petitioner alleged that there were "strange proceedings" which were "unilateral, clandestine and surreptitious" within the premises of the SET, on "documents, ballots and election materials whose possession and custody have been transferred" to the SET, and the "petitioner was NEVER OFFICIALLY 21 NOTIFIED of the strange on-goings" at the SET. Attached to the petition was the letter of the Secretary of the SET confirming the "conduct of proceedings" in the provincial election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the COMELEC, the SET and the courts "so as not to delay or interrupt the revision of ballots being conducted." While the SET letter made the reservation that "While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested," no mention whatsoever was made of the kind of proceedings taking place. It was at this point that this Court intervened, in response to the petitioners prayer for the issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible directive for the respondents to file their comments on the petition; for indeed, any further revision of ballots or other adversarial proceedings after the case has been submitted for resolution, would not only be strange and unusual but would indicate a gross violation of due process rights. After consideration of the respondents Comments and the petitioners petition and Reply, we hold that the contested proceedings at the SET ("contested proceedings) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated 22 in its Comment and without any contrary or disputing claim in the petitioners Reply: "However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality." In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and 23 privileged. We find it significant that the private respondents Comment fully supported the COMELECs
20

position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest. To conclude, the rights to notice and to be heard are not material considerations in the COMELECs handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed. Alleged Violations of Deliberation Stage Rights. On the basis of the above conclusion, we see no point in discussing any alleged violation of the deliberative stage rights. First, no illegal proceeding ever took place that would bear the "poisonous fruits" that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the standards of the due process deliberative stages rights before the COMELEC renders its decision. Expressed in terms of our standard of review, we have as yet no basis to determine the existence of any grave abuse of discretion. Conduct of COMELEC Deliberations at the SET Premises We turn to the issue of the propriety of the COMELECs consideration of the provincial election contest (specifically its appreciation of the contested ballots) at the SET premises and while the same ballots are also under consideration by the SET for another election contest legitimately within the SETs own jurisdiction. We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is 24 the rule of adherence of jurisdiction.

Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern (the Senate election contests for the SET, and the regional, provincial and city election contests for the COMELEC), and with neither one being higher than the other in terms of precedence so that the jurisdiction of one must yield to the other. But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that only a single ballot exists in an election for national and local officials, saw it fit to lay down the rule on the "order of preference in the custody and revision of ballots and other documents contained in the ballot boxes." The order, in terms of the adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs: 1. Presidential Electoral Tribunal; 2. Senate Electoral Tribunal; 3. House of Representatives Electoral Tribunal; 4. Commission on Elections; and 5. Regional Trial Courts. This order of preference dictated that the ballot boxes and other election materials in Bulacans provincial election contest, had to be transferred to the SET when the latter needed these materials for its revision of ballots. The transfer to the SET, however, did not mean that the Bulacan provincial election contest at that time already submitted for decision had to be suspended as the COMELEC held in its Orders of 29 April 2009 25 and 26 May 2009 in EPC No. 2007-44. This is particularly true in Bulacans case as no revision had to be undertaken, the revision having been already terminated. With the COMELEC retaining its jurisdiction over the Bulacan provincial election contest, the legal effect of the physical transfer of the ballots and other election materials to the SET for purposes of its own revision becomes a non-issue, given the arrangement between the COMELEC and the SET, pursuant to COMELEC Resolution No. 2812, to "coordinate and make arrangements with each other so as not to delay or interrupt the revision of ballots being conducted," all for the purpose of the expeditious disposition of their respective protest cases. The SET itself honored this arrangement as shown by the letter of the SET Secretary that the COMELEC could "conduct proceedings" within the Tribunal premises as authorized by the Acting Chairman of the Tribunal, Justice 26 Antonio T. Carpio. This arrangement recognized the COMELECs effective authority over the Bulacan ballots and other election materials, although these were temporarily located at the SET premises. This arrangement, too, together with the side by side and non-conflicting existence of the COMELEC and SET jurisdictions, negate the validity of the petitioners argument that the COMELEC transgressed the rule on separation of powers when it acted on the Bulacan provincial election contest while the ballot boxes were at the SET premises. Rather than negate, this arrangement reinforced the separate but co-existing nature of these tribunals respective jurisdictions.1avvphi1

As the petitioner argues and the COMELEC candidly admits, "there is no specific rule which allows the COMELEC 27 to conduct an appreciation of ballots outside its premises and of those which are outside its own custody." But while this is true, there is likewise nothing to prohibit the COMELEC from undertaking the appreciation of ballot side by side with the SETs own revision of ballots for the senatorial votes, in light especially of the COMELECs general authority to adopt means to effect its powers and jurisdiction under its Rules of Procedure. Section 4 of these Rules states: Sec. 4. Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any suitable process or proceeding may be adopted. This rule is by no means unusual and unique to the COMELEC as the courts have the benefit of this same type of rule under Section 6, Rule 136 of the Rules of Court. The courts own rule provides: Means to Carry Jurisdiction into Effect. When by law jurisdiction is conferred o n a court or judicial officer, all auxiliary writs, writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. Incidentally, the COMELEC authority to promulgate the above rule enjoys constitutional moorings; in the grant to the COMELEC of its jurisdiction, the Constitution provided it with the accompanying authority to promulgate its own rules concerning pleadings and practice before it or before any of its offices, provided that these rules shall 28 not diminish, increase or modify substantive rights. The Constitution additionally requires that the rules of procedure that the COMELEC will promulgate must expedite the disposition of election cases, including pre29 proclamation controversies. This constitutional standard is authority, no less, that the COMELEC can cite in defending its action. For ultimately, the appreciation of the Bulacan ballots that the COMELEC undertook side by side with the SETs own revision of ballots, constitutes an exercise of discretion made under the authority of the above-cited COMELEC rule of procedure. On the basis of the standards set by Section 4 of the COMELEC Rules of Procedure, and of the Constitution itself in the handling of election cases, we rule that the COMELEC action is a valid exercise of discretion as it is a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting the disposition of this case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable. Since the COMELEC action, taken by its Second Division, is authorized under the COMELEC Rules of Procedure, the Second Division cannot in any sense be said to be intruding into the COMELEC en banc rule-making prerogative when the Second Division chose to undertake ballot appreciation within the SET premises side by side with the SET revision of ballots. To be exact, the Second Division never laid down any new rule; it merely acted pursuant to a rule that the COMELEC en banc itself had previously enacted.

In light of these conclusions, we need not discuss the other issues raised. WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately. SO ORDERED. G.R. No. 183626 October 4, 2010

SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC. (SURNECO), Petitioner, vs. ENERGY REGULATORY COMMISSION, Respondent. DECISION NACHURA, J.: Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Decision dated April 2 3 17, 2008 and the Resolution dated June 25, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 99781. The antecedent facts and proceedings follow Petitioner Surigao Del Norte Electric Cooperative, Inc. (SURNECO) is a rural electric cooperative organized and existing by virtue of Presidential Decree No. 269. On February 8, 1996, the Association of Mindanao Rural Electric Cooperatives, as representative of SURNECO and of the other 33 rural electric cooperatives in Mindanao, filed a petition before the then Energy Regulatory Board (ERB) for the approval of the formula for automatic cost adjustment and adoption of the National Power 4 Corporation (NPC) restructured rate adjustment to comply with Republic Act (R.A.) No. 7832. The case was docketed as ERB Case No. 96-49, and later consolidated with identical petitions of other associations of electric cooperatives in the Philippines. The relevant provisions of R.A. No. 7832 for compliance are Sections 10 and 14, which provide Sec. 10. Rationalization of System Losses by Phasing Out Pilferage Losses as a Component Thereof. There is hereby established a cap on the recoverable rate of system losses as follows: xxxx (b) For rural electric cooperatives:
1

(i) Twenty-two percent (22%) at the end of the first year following the effectivity of this Act; (ii) Twenty percent (20%) at the end of the second year following the effectivity of this Act; (iii) Eighteen percent (18%) at the end of the third year following the effectivity of this Act; (iv) Sixteen percent (16%) at the end of the fourth year following the effectivity of this Act; and (v) Fourteen percent (14%) at the end of the fifth year following the effectivity of this Act. Provided, that the ERB is hereby authorized to determine at the end of the fifth year following the effectivity of this Act, and as often as is necessary, taking into account the viability of rural electric cooperatives and the interest of consumers, whether the caps herein or theretofore established shall be reduced further which shall, in no case, be lower than nine percent (9%) and accordingly fix the date of the effectivity of the new caps. xxxx Sec. 14. Rules and Regulations. The ERB shall, within thirty (30) working days after the conduct of hearings which must commence within thirty (30) working days upon the effectivity of this Act, issue the rules and regulation as may be necessary to ensure the efficient and effective implementation of the provisions of this Act, to include but not limited to, the development of methodologies for computing the amount of electricity illegally used and the amount of payment or deposit contemplated in Section 7 hereof as a result of the presence of the prima facie evidence discovered. Corollary thereto, Sections 4 and 5 of Rule IX of the Implementing Rules and Regulations (IRR) of R.A. No. 7832 provide Section 4. Caps on System Loss allowed to Rural Electric Cooperatives. The maximum rate of system loss that the cooperative can pass on to its customers shall be as follows: a. Twenty-two percent (22%) effective on February 1996 billing. b. Twenty percent (20%) effective on February 1997 billing. c. Eighteen percent (18%) effective on February 1998 billing. d. Sixteen percent (16%) effective on February 1999 billing.

e. Fourteen percent (14%) effective on February 2000 billing. Section 5. Automatic Cost Adjustment Formula. Each and every cooperative shall file with the ERB, on or before September 30, 1995, an application for approval of an amended Purchased Power Adjustment Clause that would reflect the new system loss cap to be included in its schedule of rates. The automatic cost adjustment of every electric cooperative shall be guided by the following formula: Purchased Power Adjustment Clause A (PPA) = B (C + D) Where: A = Cost of electricity purchased and generated for the previous month B = Total Kwh purchased and generated for the previous month C = The actual system loss but not to exceed the maximum recoverable rate of system loss in Kwh plus actual company use in kwhrs but not to exceed 1% of total kwhrs purchased and generated D = kwh consumed by subsidized consumers E = Applicable base cost of power equal to the amount incorporated into their basic rate per kwh. In an Order dated February 19, 1997, the ERB granted SURNECO and other rural electric cooperatives provisional authority to use and implement the Purchased Power Adjustment (PPA) formula pursuant to the mandatory provisions of R.A. No. 7832 and its IRR, with a directive to submit relevant and pertinent documents for the Boards review, verification, and confirmation. In the meantime, the passage of R.A. No. 9136 led to the creation of the Energy Regulatory Commission (ERC), replacing and succeeding the ERB. All pending cases before the ERB were transferred to the ERC. ERB Case No. 96-49 was re-docketed as ERC Case No. 2001-343. In the Order dated June 17, 2003, the ERC clarified ERBs earlier policy regarding the PPA formula to be used by the electric cooperatives, viz.
6 5

After a careful evaluation of the records, the Commission noted that the PPA formula which was approved by the ERB was silent on whether the calculation of the cost of electricity purchased and generated in the formula should be "gross" or "net" of the discounts. Let it be noted that the power cost is said to be at "gross" if the discounts are not passed-on to the end-users whereas it is said to be at "net" if the said discounts are passed-on to the end-users. To attain uniformity in the implementation of the PPA formula, the Commission has resolved that: 1. In the confirmation of past PPAs, the power cost shall still be based on "gross," and 2. In the confirmation of future PPAs, the power cost shall be based on "net." The electric cooperatives filed their respective motions for clarification and/or reconsideration. Hence, the ERC 7 issued an Order dated January 14, 2005, stating that the PPA was a cost-recovery mechanism, not a revenuegenerating scheme, so that the distribution utilities or the electric cooperatives must recover from their customers only the actual cost of purchased power. The ERC thus adopted a new PPA policy, to wit A. The computation and confirmation of the PPA prior to the Commissions Order dated June 17, 2003 shall be based on the approved PPA Formula; B. The computation and confirmation of the PPA after the Commissions Order dated June 17, 2003 shall be based on the power cost "net" of discount; and C. If the approved PPA Formula is silent on the terms of discount, the computation and confirmation of the PPA shall be based on the power cost at "gross," subject to the submission of proofs that said 8 discounts are being extended to the end-users. Thereafter, the ERC continued its review, verification, and confirmation of the electric cooperatives implementation of the PPA formula based on the available data and information submitted by the latter. On March 19, 2007, the ERC issued its assailed Order, mandating that the discounts earned by SURNECO from its power supplier should be deducted from the computation of the power cost, disposing in this wise WHEREFORE, the foregoing premises considered, the Commission hereby confirms the Purchased Power Adjustment (PPA) of Surigao del Norte Electric Cooperative, Inc. (SURNECO) for the period February 1996 to July 2004 which resulted to an over-recovery amounting to EIGHTEEN MILLION ONE HUNDRED EIGHTY EIGHT THOUSAND SEVEN HUNDRED NINETY FOUR PESOS (PhP18,188,794.00) equivalent to PhP0.0500/kwh. In this connection, SURNECO is hereby directed to refund the amount of PhP0.0500/kwh to its Main Island consumers starting the next billing cycle from receipt of this Order until such time that the full amount shall have been refunded.
9

The Commission likewise confirms the PPA of SURNECO for its Hikdop Island consumers for the period February 1996 to July 2004 which resulted to an under-recovery amounting to TWO MILLION FOUR HUNDRED SEVENTY EIGHT THOUSAND FORTY FIVE PESOS (PhP2,478,045.00). SURNECO is hereby authorized to collect from its Hikdop Island consumers the amount of PhP0.0100/kwh starting the next billing cycle from receipt of this Order until such time that the full amount shall have been collected. Accordingly, SURNECO is directed to: a) Reflect the PPA refund/collection as a separate item in the bill using the phrase "Previous Years Adjustment on Power Cost"; b) Submit, within ten (10) days from its initial implementation of the refund/collection, a sworn statement indicating its compliance with the aforecited directive; and c) Accomplish and submit a report in accordance with the attached prescribed format, on or before the 30th day of January of the succeeding year and every year thereafter until the amount shall have been fully refunded/collected. SO ORDERED.
10

SURNECO filed a motion for reconsideration, but it was denied by the ERC in its Order dated May 29, 2007 on the ground that the motion did not raise any new matter which was not already passed upon by the ERC. Aggrieved, SURNECO went to the CA via a petition for review, with prayer for the issuance of a temporary restraining order and preliminary injunction, seeking the annulment of the ERC Orders dated March 19, 2007 and May 29, 2007. In its Decision dated April 17, 2008, the CA denied SURNECOs petition and affirmed the assailed Orders of the ERC. On June 25, 2008, upon motion for reconsideration of SURNECO, the CA issued its Resolution denying the same. Hence, this petition, with SURNECO ascribing error to the CA and the ERC in: (1) disallowing its use of the multiplier scheme to compute its systems loss; (2) ordering it to deduct from the power cost or refund to its consumers the discounts extended to it by its power supplier, NPC; and (3) ordering it to refund alleged overrecoveries arrived at by the ERC without giving SURNECO the opportunity to be heard. The petition should be denied.
13 12

11

First. SURNECO points out that the National Electrification Administration (NEA), which used to be the government authority charged by law with the power to fix rates of rural electric cooperatives, entered into a loan agreement with the Asian Development Bank (ADB). The proceeds of the loan were intended for use by qualified rural electric cooperatives, SURNECO included, in their rehabilitation and expansion projects. The loan agreement imposed a 15% system loss cap, but provided a Power Cost Adjustment Clause authorizing cooperatives to charge and show "system losses in excess of 15%" as a separate item in their consumers bill. Thus, the cooperatives charged their consumer-members "System Loss Levy" for system losses in excess of the 15% cap. SURNECO states that, in January 1984, it was authorized by the NEA that all increases in the NPC power cost (in case of NPC-connected cooperatives) shall be uniformly passed on to the member-consumers using the 1.4 multiplier, which is divided into 1.3 as allowance for 23% system loss and 0.1 as provision for the corresponding 14 increase in operating expenses to partly offset the effects of inflation. Subsequently, the NEA, through NEA Memorandum No. 1-A dated March 30, 1992, revised the aforesaid issuance as follows Pursuant to NEA Board Resolution No. 98, Series of 1991, x x x, the revised cooperatives multiplier will be as follows: 1.2 Rural Electric Cooperatives (RECs) with system loss of 15% and below; 1.3 RECs with system loss ranging from 16% to 22%; 1.4 RECs with system loss of 23% and above. SURNECO posits that, per NEA Memorandum No. 1-A, the NEA had authorized it to adopt a multiplier scheme as the method to recover system loss. It claims that this cannot be abrogated, revoked, or superseded by any order, resolution, or issuance by the ERC prescribing a certain formula to implement the caps of recoverable rate of 15 system loss under R.A. No. 7832 without violating the non-impairment clause of the Constitution. We disagree. SURNECO cannot insist on using the multiplier scheme even after the imposition of the system loss caps under Section 10 of R.A. No. 7832. The law took effect on January 17, 1995. Perusing Section 10, and also 16 Section 11, providing for the application of the caps as of the date of the effectivity of R.A. No. 7832, readily shows that the imposition of the caps was self-executory and did not require the issuance of any enabling set of rules or any action by the then ERB, now ERC. Thus, the caps should have been applied as of January 17, 1995 when R.A. No. 7832 took effect. Indeed, under NEA Memorandum No. 1-A, the use of the multiplier scheme allows the recovery of system losses even beyond the caps mandated in R.A. No. 7832, which is intended to gradually phase out pilferage losses as a component of the recoverable system losses by the distributing utilities such as SURNECO. However, it is totally repugnant to and incompatible with the system loss caps established in R.A. No. 7832, and is repealed by Section 17 16 of the law. As between NEA Memorandum No. 1-A, a mere administrative issuance, and R.A. No. 7832, a 18 legislative enactment, the latter must prevail.

Second. The ERC was merely implementing the system loss caps in R.A. No. 7832 when it reviewed and confirmed SURNECOS PPA charges, and ordered the refund of the amount collected in excess of the allowable system loss caps through its continued use of the multiplier scheme. As the ERC held in its March 19, 2007 Order On January 14, 2005, the Commission issued an Order adopting a new PPA policy as follows: (a) the computation and confirmation of the PPA prior to the Commissions Order dated June 17, 2003 shall be based on the approved PPA Formula; (b) the computation and confirmation of the PPA after the Commissions Order dated June 17, 2003 shall be based on the power cost "net" of discount; and (c) if the approved PPA Formula is silent in terms of discount, the computation and confirmation of the PPA shall be based on the power cost at "gross" reduced by the amount of discounts extended to customers, subject to the submission of proofs that said discounts are indeed being extended to customers. However, the Commission deemed it appropriate to clarify its PPA confirmation process particularly on the treatment of the Prompt Payment Discount (PPD) granted to distribution utilities (DUs) by their power suppliers, to wit: I. The over-or-under recovery will be determined by comparing the allowable power cost with the actual revenue billed to end-users. II. Calculation of the DUs allowable power cost as prescribed in the PPA formula: a. If the PPA formula explicitly provides the manner by which discounts availed from the power supplier/s shall be treated, the allowable power cost will be computed based on the specific provision of the formula, which may either be at "net" or "gross"; and b. If the PPA formula is silent in terms of discounts, the allowable power cost will be computed at "net" of discounts availed from the power supplier/s, if there be any. III. Calculation of DUs actual revenues/actual amount billed to end-users. a. On actual PPA computed at net of discounts availed from power supplier/s: a.1. If a DU bills at net of discounts availed from the power supplier/s (i.e., gross power cost minus discounts from power supplier/s) and the DU is not extending discounts to end-users, the actual revenue should be equal to the allowable power cost; and a.2. If a DU bills at net of discounts availed from the power supplier/s (i.e., gross power cost minus discounts from power supplier/s) and the DU is extending

discounts to end-users, the discount extended to end-users shall be added back to the actual revenue. b. On actual PPA computed at gross: b.1. If a DU bills at gross (i.e., gross power cost not reduced by discounts from power supplier/s) and the DU is extending discounts to end-users, the actual revenue shall be calculated as: gross power revenue less discounts extended to end-users. The result shall then be compared to the allowable power cost; and b.2. If a DU bills at gross (i.e., gross power cost not reduced by discounts from power supplier/s) and the DU is not extending discounts to end-users, the actual revenue shall be taken as is which shall be compared to the allowable power cost. IV. In the calculation of the DUs actual revenues, the amount of discounts extended to endusers shall, in no case, be higher than the discounts availed by the DU from its power supplier/s. The foregoing clarification was intended to ensure that only the actual costs of purchased power are recovered by the DUs. In the meantime, SURNECO submitted reports on its monthly implementation of the PPA covering the period January 1998 to July 2004 and attended the conferences conducted by the Commission on December 11, 2003 and May 4, 2005 relative thereto. The Commission evaluated SURNECOs monthly PPA implementation covering the period February 1996 to July 2004, which disclosed the following: Schedule 1, Main Island Period Covered Over (Under) Recoveries (In PhP) 20,737,074 (2,548,280) 18,188,794 0.2077 (0.0097) 0.0500 Over (Under) Recoveries (In kWh)

Schedule 2, Municipality of Hikdop February 1996 to December 1998 PPA Plus Basic Cha[r]ge January 1999 to July 2004 TOTAL The over-recoveries were due to the following: 1. For the period February 1996 to December 1998, SURNECOs PPA computation included the power cost and the corresponding kWh purchased from Hikdop end-users. The Commission excluded those months which SURNECO did not impose variable charges to Hikdop end-user which resulted to a total net over-recovery of PhP21,245,034.00; and 2. SURNECOs basic charge for Hikdop end-users were beyond the approved basic charge for the period February 1996 to September 1998 resulting to a net over-recovery of PhP128,489.00. SURNECOs under recoveries for the period January 1999 to June 2004 were due to the following: 1. For the period August 2001 to June 2004, SURNECO erroneously deducted the Power Act Reduction Adjustments (PARA) in the total purchased power cost of its PPA computation resulting to an underrecovery of PhP1,377,763.00; 2. SURNECOs power cost and kWh computation includes Dummy Load resulting to an under recovery amounting to PhP226,196.00; and 3. The new grossed-up factor scheme adopted by the Commission which provided a true-up 19 mechanism to allow the DUs to recover the actual costs of purchased power. In directing SURNECO to refund its over-recoveries based on PPA policies, which only ensured that the PPA mechanism remains a purely cost-recovery mechanism and not a revenue-generating scheme for the electric cooperatives, the ERC merely exercised its authority to regulate and approve the rates imposed by the electric cooperatives on their consumers. The ERC simply performed its mandate to protect the public interest imbued in those rates. 70,235 0.3190

(2,548,280) (2,478,045)

(0.0097) (0.0100)

February 1996 to December 1998 January 1999 to July 2004 TOTAL

It is beyond cavil that the State, in the exercise of police power, can regulate the rates imposed by a public utility 20 such as SURNECO. As we held in Republic of the Philippines v. Manila Electric Company The regulation of rates to be charged by public utilities is founded upon the police powers of the State and statutes prescribing rules for the control and regulation of public utilities are a valid exercise thereof. When private property is used for a public purpose and is affected with public interest, it ceases to be juris privati only and becomes subject to regulation. The regulation is to promote the common good. Submission to regulation may be withdrawn by the owner by discontinuing use; but as long as use of the property is continued, the same is subject to public regulation. Likewise, SURNECO cannot validly assert that the caps set by R.A. No. 7832 are arbitrary, or that they violate the non-impairment clause of the Constitution for allegedly traversing the loan agreement between NEA and ADB. Striking down a legislative enactment, or any of its provisions, can be done only by way of a direct action, not through a collateral attack, and more so, not for the first time on appeal in order to avoid compliance. The 21 challenge to the laws constitutionality should also be raised at the earliest opportunity. Even assuming, merely for arguments sake, that the ERC issuances violated the NEA and ADB covenant, the contract had to yield to the greater authority of the States exercise of police power. It has long been settled that police power legislation, adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people prevail not only over future contracts but even over those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to 22 promote public welfare. SURNECO also avers that the Electric Power Industry Reform Act of 2001 (EPIRA) removed the alleged arbitrary caps in R.A. No. 7832. We differ. The EPIRA allows the caps to remain until replaced by the caps to be 23 determined by the ERC, pursuant to its delegated authority under Section 43 of R.A. No. 9136 to prescribe new system loss caps, based on technical parameters such as load density, sales mix, cost of service, delivery voltage, and other technical considerations it may promulgate. Third. We also disagree with SURNECO in its insistence that the PPA confirmation policies constituted an amendment to the IRR of R.A. No. 7832 and must, therefore, comply with the publication requirement for the effectivity of administrative issuances. The PPA formula provided in the IRR of R.A. No. 7832 was only a model to be used as a guide by the electric cooperatives in proposing their own PPA formula for approval by the then ERB. Sections 4 and 5, Rule IX of the IRR directed the electric cooperatives to apply for approval of such formula with the ERB so that the system loss caps under the law would be incorporated in their computation of power cost adjustments. The IRR did not provide for a specific formula; therefore, there was nothing in the IRR that was amended or could have been amended relative to the PPA formula. The IRR left to the ERB, now the ERC, the authority to approve and oversee the implementation of the electric cooperatives PPA formula in the exercise of its rate-making power over them.1avvphi1

We likewise differ from SURNECOs stance that it was denied due process when the ERC issued its questioned Orders. Administrative due process simply requires an opportunity to explain ones side or to seek 24 reconsideration of the action or ruling complained of. It means being given the opportunity to be heard before judgment, and for this purpose, a formal trial-type hearing is not even essential. It is enough that the parties are given a fair and reasonable chance to demonstrate their respective positions and to present evidence in support 25 thereof. Verily, the PPA confirmation necessitated a review of the electric cooperatives monthly documentary submissions to substantiate their PPA charges. The cooperatives were duly informed of the need for other required supporting documents and were allowed to submit them accordingly. In fact, hearings were conducted. Moreover, the ERC conducted exit conferences with the electric cooperatives representatives, SURNECO included, to discuss preliminary figures and to double-check these figures for inaccuracies, if there were any. In addition, after the issuance of the ERC Orders, the electric cooperatives were allowed to file their respective motions for reconsideration. It cannot be gainsaid, therefore, that SURNECO was not denied due process. Finally, the core of the issues raised is factual in character. It needs only to be reiterated that factual findings of administrative bodies on technical matters within their area of expertise should be accorded not only respect but 26 even finality if they are supported by substantial evidence even if not overwhelming or preponderant, more so if affirmed by the CA. Absent any grave abuse of discretion on the part of ERC, we must sustain its findings. Hence, its assailed Orders, following the rule of non-interference on matters addressed to the sound discretion of government agencies entrusted with the regulation of activities coming their special technical knowledge and 27 training, must be upheld. WHEREFORE, the petition is DENIED. The Decision dated April 17, 2008 and the Resolution dated June 25, 2008 of the Court of Appeals in CA-G.R. SP No. 99781 are AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for NonState Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178581 BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUIONREYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179157 THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179461 BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTRST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN

(BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. DECISION CARPIO MORALES, J.: Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 1 2007, signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007, petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), 3 and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554. The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy 4 (HEAD), and Agham, represented by their respective officers, and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan2

Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581. On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective 5 officers who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890. On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty 6 (CODAL), Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157. Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly 7 8 based in the Southern Tagalog Region, and individuals followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581. Impleaded as respondents in the various petitions are the Anti-Terrorism Council composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon. The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, AntiMoney Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements. The petitions fail. Petitioners resort to certiorari is improper Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear: Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functionshas acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
9

lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied) Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The impropriety of certiorari as a remedy aside, the petitions fail just the same. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the 10 case. In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. Petitioners lack locus standi Locus standi or legal standing requires 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 11 illumination of difficult constitutional questions. Anak Mindanao Party-List Group v. The Executive Secretary summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a 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 on 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. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
12

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.) Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers. While Chavez v. PCGG holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi. Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military 14 build." They likewise claim that they have been branded as "enemies of the [S]tate." Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is 15 tantamount to the effects of proscription without following the procedure under the law. The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations. The Court cannot take judicial notice of the alleged "tagging" of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the
13

territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of 16 which the court has no constructive knowledge. (emphasis and underscoring supplied.) No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of 17 18 America (US) and the European Union (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the 19 CPP and NPA as terrorist organizations. Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372. Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino 20 Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan, urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the 21 Aquino Administration of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations. More important, there are other parties not before the Court with direct and specific interests in the questions 22 23 being raised. Of recent development is the filing of the first case for proscription under Section 17 of RA 9372

by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group. Petitionerorganizations do not in the least allege any link to the Abu Sayyaf Group. Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them. In Ladlad v. Velasco, the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner26 organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered. Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged. Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of 27 its members with standing. The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed. Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have
25

24

been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public. Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is 28 proper only when there is an exercise of the spending or taxing power of Congress, whereas citizen standing 29 must rest on direct and personal interest in the proceeding. RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. Petitioners fail to present an actual case or controversy By constitutional fiat, judicial power operates only when there is an actual case or controversy. 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 30 Government. (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission, the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory 32 opinion. Information Technology Foundation of the Philippines v. COMELEC cannot be more emphatic: [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of
33 31

parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized 34 City was held to be premature as it was tacked on uncertain, contingent events. Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical 35 problem. The Court dismissed the petition in Philippine Press Institute v. Commission on Elections for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in 37 Abbas v. Commission on Elections, to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants. The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate 38 the issues. Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of 40 seeking relief." The plaintiffs therein filed an action before a federal court to assail the constitutionality of the 41 material support statute, 18 U.S.C. 2339B (a) (1), proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations. Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there 42 would then be a justiciable controversy. Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one.
39 36

Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render 43 an advisory opinion, which is not its function. Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely 44 theorized, lie beyond judicial review for lack of ripeness. The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any 45 power granted by law may be abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of 46 terrorism under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts. Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech. For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute. Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two 47 doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan and Estrada v. 48 Sandiganbayan. The Court clarifies. At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for 50 testing the validity of penal statutes." It added that, at any rate, the challenged provision, under which the 51 therein petitioner was charged, is not vague.
49

While in the subsequent case of Romualdez v. Commission on Elections, the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, 53 and concluded that the therein subject election offense under the Voters Registration Act of 1996, with which 54 the therein petitioners were charged, is couched in precise language. The two Romualdez cases rely heavily on the Separate Opinion of Justice Vicente V. Mendoza in the Estradacase, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder. The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."
55

52

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be 56 examined in the light of the conduct with which the defendant is charged. (Underscoring supplied.) The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying 57 out its provisions and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state

regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of 58 protected freedoms. As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand 59 what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected. A "facial" challenge is likewise different from an "as-applied" challenge. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facialinvalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause 60 others not before the court to refrain from constitutionally protected speech or activities. Justice Mendoza accurately phrased the subtitle in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds. The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on 62 protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so 63 long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights. The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and 64 "underscored that an on-its-face invalidation of penal statutes x x x may not be allowed." [T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that 65 the law is clear as applied to him. (Emphasis and underscoring supplied) It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.
61

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely"as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to 66 remove that deterrent effect on the speech of those third parties. (Emphasis in the original omitted; underscoring supplied.) In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First 68 Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which, by 69 70 their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speechrelated conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of 71 constitutionally protected expression." Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent chargeagainst them While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the 72 law "on its face and in its entirety." It stressed that "statutes found vague as a matter of due process typically 73 are invalidated only 'as applied' to a particular defendant." American jurisprudence instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty 75 under law."
74 67

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in 76 examining the constitutionality of criminal statutes. In at least three cases, the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdezand Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the 77 element of "unlawful demand" in the definition of terrorism must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or 78 conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of 79 trade as well as many other agreements and conspiracies deemed injurious to society. (italics and underscoring supplied) Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited 80 conduct. Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1 IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecutionunder RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED. SO ORDERED. G.R. No. 178296 January 12, 2011

Before the Court is a petition for review on certiorari of the Decision of the Court of Appeals (CA) dated May 30, 2005 and Resolution dated June 4, 2007. The assailed Decision affirmed the dismissal of a petition for cancellation of union registration filed by petitioner, Grand Plaza Hotel Corporation, owner of Heritage Hotel Manila, against respondent, National Union of Workers in the Hotel, Restaurant and Allied Industries-Heritage Hotel Manila Supervisors Chapter (NUWHRAIN-HHMSC), a labor organization of the supervisory employees of Heritage Hotel Manila. The case stemmed from the following antecedents: On October 11, 1995, respondent filed with the Department of Labor and Employment-National Capital Region 2 (DOLE-NCR) a petition for certification election. The Med-Arbiter granted the petition on February 14, 1996 and 3 ordered the holding of a certification election. On appeal, the DOLE Secretary, in a Resolution dated August 15, 1996, affirmed the Med-Arbiters order and remanded the case to the Med-Arbiter for the holding of a preelection conference on February 26, 1997. Petitioner filed a motion for reconsideration, but it was denied on September 23, 1996. The preelection conference was not held as initially scheduled; it was held a year later, or on February 20, 1998. Petitioner moved to archive or to dismiss the petition due to alleged repeated non-appearance of respondent. The latter agreed to suspend proceedings until further notice. The preelection conference resumed on January 29, 2000. Subsequently, petitioner discovered that respondent had failed to submit to the Bureau of Labor Relations (BLR) its annual financial report for several years and the list of its members since it filed its registration papers in 1995. Consequently, on May 19, 2000, petitioner filed a Petition for Cancellation of Registration of respondent, on the ground of the non-submission of the said documents. Petitioner prayed that respondents Certificate of Creation of Local/Chapter be cancelled and its name be deleted from the list of legitimate labor organizations. It 4 further requested the suspension of the certification election proceedings. On June 1, 2000, petitioner reiterated its request by filing a Motion to Dismiss or Suspend the [Certification 5 Election] Proceedings, arguing that the dismissal or suspension of the proceedings is warranted, considering that the legitimacy of respondent is seriously being challenged in the petition for cancellation of registration. Petitioner maintained that the resolution of the issue of whether respondent is a legitimate labor organization is crucial to the issue of whether it may exercise rights of a legitimate labor organization, which include the right to be certified as the bargaining agent of the covered employees. Nevertheless, the certification election pushed through on June 23, 2000. Respondent emerged as the winner. On June 28, 2000, petitioner filed a Protest with Motion to Defer Certification of Election Results and 7 Winner, stating that the certification election held on June 23, 2000 was an exercise in futility because, once respondents registration is cancelled, it would no longer be entitled to be certified as the exclusive bargaining agent of the supervisory employees. Petitioner also claimed that some of respondents members were not qualified to join the union because they were either confidential employees or managerial employees. It then
6

THE HERITAGE HOTEL MANILA, acting through its owner, GRAND PLAZA HOTEL CORPORATION,Petitioner, vs. NATIONAL UNION OF WORKERS IN THE HOTEL, RESTAURANT AND ALLIED INDUSTRIES-HERITAGE HOTEL MANILA SUPERVISORS CHAPTER (NUWHRAIN-HHMSC), Respondent. DECISION NACHURA, J.:

prayed that the certification of the election results and winner be deferred until the petition for cancellation shall have been resolved, and that respondents members who held confidential or managerial positions be excluded from the supervisors bargaining unit. Meanwhile, respondent filed its Answer to the petition for the cancellation of its registration. It averred that the petition was filed primarily to delay the conduct of the certification election, the respondents certification as the exclusive bargaining representative of the supervisory employees, and the commencement of bargaining negotiations. Respondent prayed for the dismissal of the petition for the following reasons: (a) petitioner is estopped from questioning respondents status as a legitimate labor organization as it had already recognized respondent as such during the preelection conferences; (b) petitioner is not the party-in-interest, as the union members are the ones who would be disadvantaged by the non-submission of financial reports; (c) it has already complied with the reportorial requirements, having submitted its financial statements for 1996, 1997, 1998, and 1999, its updated list of officers, and its list of members for the years 1995, 1996, 1997, 1998, and 1999; (d) the petition is already moot and academic, considering that the certification election had already been held, and the members had manifested their will to be represented by respondent. Citing National Union of Bank Employees v. Minister of Labor, et al. and Samahan ng Manggagawa sa Pacific 10 Plastic v. Hon. Laguesma, the Med-Arbiter held that the pendency of a petition for cancellation of registration 11 is not a bar to the holding of a certification election. Thus, in an Order dated January 26, 2001, the Med-Arbiter dismissed petitioners protest, and certified respondent as the sole and exclusive bargaining agent of all supervisory employees. Petitioner subsequently appealed the said Order to the DOLE Secretary. The appeal was later dismissed by DOLE Secretary Patricia A. Sto. Tomas (DOLE Secretary Sto. Tomas) in the Resolution of August 21, 13 14 2002. Petitioner moved for reconsideration, but the motion was also denied. In the meantime, Regional Director Alex E. Maraan (Regional Director Maraan) of DOLE-NCR finally resolved the petition for cancellation of registration. While finding that respondent had indeed failed to file financial reports and the list of its members for several years, he, nonetheless, denied the petition, ratiocinating that freedom of association and the employees right to self-organization are more substantive considerations. He took into account the fact that respondent won the certification election and that it had already been certified as the exclusive bargaining agent of the supervisory employees. In view of the foregoing, Regional Director Maraan while emphasizing that the non-compliance with the law is not viewed with favorconsidered the belated submission of the annual financial reports and the list of members as sufficient compliance thereof and 15 considered them as having been submitted on time. The dispositive portion of the decision dated December 29, 2001 reads: WHEREFORE, premises considered, the instant petition to delist the National Union of Workers in the Hotel, Restaurant and Allied Industries-Heritage Hotel Manila Supervisors Chapter from the roll of legitimate labor organizations is hereby DENIED. SO ORDERED.
16 12 9 8

Aggrieved, petitioner appealed the decision to the BLR. BLR Director Hans Leo Cacdac inhibited himself from the case because he had been a former counsel of respondent. In view of Director Cacdacs inhibition, DOLE Secretary Sto. Tomas took cognizance of the appeal. In a 18 resolution dated February 21, 2003, she dismissed the appeal, holding that the constitutionally guaranteed freedom of association and right of workers to self-organization outweighed respondents noncompliance with the statutory requirements to maintain its status as a legitimate labor organization. Petitioner filed a motion for reconsideration, but the motion was likewise denied in a resolution dated May 30, 2003. DOLE Secretary Sto. Tomas admitted that it was the BLR which had jurisdiction over the appeal, but she pointed out that the BLR Director had voluntarily inhibited himself from the case because he used to appear as counsel for respondent. In order to maintain the integrity of the decision and of the BLR, she therefore accepted the motion to inhibit and took cognizance of the appeal. Petitioner filed a petition for certiorari with the CA, raising the issue of whether the DOLE Secretary acted with grave abuse of discretion in taking cognizance of the appeal and affirming the dismissal of its petition for cancellation of respondents registration. In a Decision dated May 30, 2005, the CA denied the petition. The CA opined that the DOLE Secretary may legally assume jurisdiction over an appeal from the decision of the Regional Director in the event that the Director of the BLR inhibits himself from the case. According to the CA, in the absence of the BLR Director, there is no person more competent to resolve the appeal than the DOLE Secretary. The CA brushed aside the allegation of bias and partiality on the part of the DOLE Secretary, considering that such allegation was not supported by any evidence. The CA also found that the DOLE Secretary did not commit grave abuse of discretion when she affirmed the dismissal of the petition for cancellation of respondents registration as a labor organization. Echoing the DOLE Secretary, the CA held that the requirements of registration of labor organizations are an exercise of the overriding police power of the State, designed for the protection of workers against potential abuse by the union that recruits them. These requirements, the CA opined, should not be exploited to work against the workers constitutionally protected right to self-organization. Petitioner filed a motion for reconsideration, invoking this Courts ruling in Abbott Labs. Phils., Inc. v. Abbott 21 Labs. Employees Union, which categorically declared that the DOLE Secretary has no authority to review the 22 decision of the Regional Director in a petition for cancellation of union registration, and Section 4, Rule VIII, Book V of the Omnibus Rules Implementing the Labor Code. In its Resolution dated June 4, 2007, the CA denied petitioners motion, stating that the BLR Directors inhibition from the case was a peculiarity not present in the Abbott case, and that such inhibition justified the assumption of jurisdiction by the DOLE Secretary. In this petition, petitioner argues that:
23 19 20

17

I. The Court of Appeals seriously erred in ruling that the Labor Secretary properly assumed jurisdiction over Petitioners appeal of the Regional Directors Decision in the Cancellation Petition x x x. A. Jurisdiction is conferred only by law. The Labor Secretary had no jurisdiction to review the decision of the Regional Director in a petition for cancellation. Such jurisdiction is conferred by law to the BLR. B. The unilateral inhibition by the BLR Director cannot justify the Labor Secretarys exercise of jurisdiction over the Appeal. C. The Labor Secretarys assumption of jurisdiction over the Appeal without notice violated Petitioners right to due process. II. The Court of Appeals gravely erred in affirming the dismissal of the Cancellation Petition despite the mandatory 24 and unequivocal provisions of the Labor Code and its Implementing Rules. The petition has no merit. Jurisdiction to review the decision of the Regional Director lies with the BLR. This is clearly provided in the Implementing Rules of the Labor Code and enunciated by the Court in Abbott. But as pointed out by the CA, the present case involves a peculiar circumstance that was not present or covered by the ruling in Abbott. In this case, the BLR Director inhibited himself from the case because he was a former counsel of respondent. Who, then, shall resolve the case in his place? In Abbott, the appeal from the Regional Directors decision was directly filed with the Office of the DOLE Secretary, and we ruled that the latter has no appellate jurisdiction. In the instant case, the appeal was filed by petitioner with the BLR, which, undisputedly, acquired jurisdiction over the case. Once jurisdiction is acquired by 25 the court, it remains with it until the full termination of the case. Thus, jurisdiction remained with the BLR despite the BLR Directors inhibition. When the DOLE Secretary resolved the appeal, she merely stepped into the shoes of the BLR Director and performed a function that the latter could 26 not himself perform. She did so pursuant to her power of supervision and control over the BLR. Expounding on the extent of the power of control, the Court, in Araneta, et al. v. Hon. M. Gatmaitan, et 27 al., pronounced that, if a certain power or authority is vested by law upon the Department Secretary, then such power or authority may be exercised directly by the President, who exercises supervision and control over the departments. This principle was incorporated in the Administrative Code of 1987, which defines "supervision and control" as including the authority to act directly whenever a specific function is entrusted by law or regulation

to a subordinate. Applying the foregoing to the present case, it is clear that the DOLE Secretary, as the person exercising the power of supervision and control over the BLR, has the authority to directly exercise the quasijudicial function entrusted by law to the BLR Director. It is true that the power of control and supervision does not give the Department Secretary unbridled authority to take over the functions of his or her subordinate. Such authority is subject to certain guidelines which are 29 stated in Book IV, Chapter 8, Section 39(1)(a) of the Administrative Code of 1987. However, in the present case, the DOLE Secretarys act of taking over the function of the BLR Director was warranted and necessitated by the latters inhibition from the case and the objective to "maintain the integrity of the decision, as well as the Bureau 30 itself." Petitioner insists that the BLR Directors subordinates should have resolved the appeal, citing the provision under the Administrative Code of 1987 which states, "in case of the absence or disability of the head of a bureau or 31 office, his duties shall be performed by the assistant head." The provision clearly does not apply considering that the BLR Director was neither absent nor suffering from any disability; he remained as head of the BLR. Thus, to dispel any suspicion of bias, the DOLE Secretary opted to resolve the appeal herself. Petitioner was not denied the right to due process when it was not notified in advance of the BLR Directors inhibition and the DOLE Secretarys assumption of the case. Well-settled is the rule that the essence of due process is simply an opportunity to be heard, or, as applied to administrative proceedings, an opportunity to 32 explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. Petitioner had the opportunity to question the BLR Directors inhibition and the DOLE Secretarys taking cognizance of the case when it filed a motion for reconsideration of the latters decision. It would be well to state that a critical component of due process is a hearing before an impartial and disinterested tribunal, for all the elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and 33 biased judge. It was precisely to ensure a fair trial that moved the BLR Director to inhibit himself from the case and the DOLE Secretary to take over his function. Petitioner also insists that respondents registration as a legitimate labor union should be cancelled. Petitioner posits that once it is determined that a ground enumerated in Article 239 of the Labor Code is present, cancellation of registration should follow; it becomes the ministerial duty of the Regional Director to cancel the registration of the labor organization, hence, the use of the word "shall." Petitioner points out that the Regional Director has admitted in its decision that respondent failed to submit the required documents for a number of years; therefore, cancellation of its registration should have followed as a matter of course. We are not persuaded. Articles 238 and 239 of the Labor Code read: ART. 238. CANCELLATION OF REGISTRATION; APPEAL

28

The certificate of registration of any legitimate labor organization, whether national or local, shall be canceled by the Bureau if it has reason to believe, after due hearing, that the said labor organization no longer meets one or 34 more of the requirements herein prescribed. ART. 239. GROUNDS FOR CANCELLATION OF UNION REGISTRATION. The following shall constitute grounds for cancellation of union registration: xxxx (d) Failure to submit the annual financial report to the Bureau within thirty (30) days after the closing of every fiscal year and misrepresentation, false entries or fraud in the preparation of the financial report itself; xxxx (i) Failure to submit list of individual members to the Bureau once a year or whenever required by the Bureau.
35

It is worth mentioning that the Labor Codes provisions on cancellation of union registration and on reportorial requirements have been recently amended by Republic Act (R.A.) No. 9481, An Act Strengthening the Workers Constitutional Right to Self-Organization, Amending for the Purpose Presidential Decree No. 442, As Amended, Otherwise Known as the Labor Code of the Philippines, which lapsed into law on May 25, 2007 and became effective on June 14, 2007. The amendment sought to strengthen the workers right to self-organization and enhance the Philippines compliance with its international obligations as embodied in the International Labour 38 Organization (ILO) Convention No. 87, pertaining to the non-dissolution of workers organizations by 39 administrative authority. Thus, R.A. No. 9481 amended Article 239 to read: ART. 239. Grounds for Cancellation of Union Registration.The following may constitute grounds for cancellation of union registration: (a) Misrepresentation, false statement or fraud in connection with the adoption or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification; (b) Misrepresentation, false statements or fraud in connection with the election of officers, minutes of the election of officers, and the list of voters; (c) Voluntary dissolution by the members. R.A. No. 9481 also inserted in the Labor Code Article 242-A, which provides: ART. 242-A. Reportorial Requirements.The following are documents required to be submitted to the Bureau by the legitimate labor organization concerned: (a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of members who took part in the ratification of the constitution and by-laws within thirty (30) days from adoption or ratification of the constitution and by-laws or amendments thereto; (b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from election; (c) Its annual financial report within thirty (30) days after the close of every fiscal year; and (d) Its list of members at least once a year or whenever required by the Bureau. Failure to comply with the above requirements shall not be a ground for cancellation of union registration but shall subject the erring officers or members to suspension, expulsion from membership, or any appropriate penalty.

These provisions give the Regional Director ample discretion in dealing with a petition for cancellation of a unions registration, particularly, determining whether the union still meets the requirements prescribed by law. It is sufficient to give the Regional Director license to treat the late filing of required documents as sufficient compliance with the requirements of the law. After all, the law requires the labor organization to submit the annual financial report and list of members in order to verify if it is still viable and financially sustainable as an organization so as to protect the employer and employees from fraudulent or fly-by-night unions. With the submission of the required documents by respondent, the purpose of the law has been achieved, though belatedly. We cannot ascribe abuse of discretion to the Regional Director and the DOLE Secretary in denying the petition for cancellation of respondents registration. The union members and, in fact, all the employees belonging to the appropriate bargaining unit should not be deprived of a bargaining agent, merely because of the negligence of the union officers who were responsible for the submission of the documents to the BLR. Labor authorities should, indeed, act with circumspection in treating petitions for cancellation of union registration, lest they be accused of interfering with union activities. In resolving the petition, consideration must be taken of the fundamental rights guaranteed by Article XIII, Section 3 of the Constitution, i.e., the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities. Labor authorities should bear in mind that registration confers upon a union the status of legitimacy and the concomitant right and privileges granted by law to a legitimate labor organization, particularly the right to 36 participate in or ask for certification election in a bargaining unit. Thus, the cancellation of a certificate of registration is the equivalent of snuffing out the life of a labor organization. For without such registration, it loses 37 - as a rule - its rights under the Labor Code.

ILO Convention No. 87, which we have ratified in 1953, provides that "workers and employers organizations shall not be liable to be dissolved or suspended by administrative authority." The ILO has expressed the opinion that the cancellation of union registration by the registrar of labor unions, which in our case is the BLR, is tantamount to dissolution of the organization by administrative authority when such measure would give rise to the loss of legal personality of the union or loss of advantages necessary for it to carry out its activities, which is true in our jurisdiction. Although the ILO has allowed such measure to be taken, provided that judicial safeguards are in place, i.e., the right to appeal to a judicial body, it has nonetheless reminded its members that dissolution of a union, and cancellation of registration for that matter, involve serious consequences for occupational representation. It has, therefore, deemed it preferable if such actions were to be taken only as a last resort and 40 after exhausting other possibilities with less serious effects on the organization. The aforesaid amendments and the ILOs opinion on this matter serve to fortify our ruling in this case. We therefore quote with approval the DOLE Secretarys rationale for denying the petition, thus: It is undisputed that appellee failed to submit its annual financial reports and list of individual members in accordance with Article 239 of the Labor Code. However, the existence of this ground should not necessarily lead to the cancellation of union registration. Article 239 recognizes the regulatory authority of the State to exact compliance with reporting requirements. Yet there is more at stake in this case than merely monitoring union activities and requiring periodic documentation thereof. The more substantive considerations involve the constitutionally guaranteed freedom of association and right of workers to self-organization. Also involved is the public policy to promote free trade unionism and collective bargaining as instruments of industrial peace and democracy.1avvphi1 An overly stringent interpretation of the statute governing cancellation of union registration without regard to surrounding circumstances cannot be allowed. Otherwise, it would lead to an unconstitutional application of the statute and emasculation of public policy objectives. Worse, it can render nugatory the protection to labor and social justice clauses that pervades the Constitution and the Labor Code. Moreover, submission of the required documents is the duty of the officers of the union. It would be unreasonable for this Office to order the cancellation of the union and penalize the entire union membership on the basis of the negligence of its officers. In National Union of Bank Employees vs. Minister of Labor, L-53406, 14 December 1981, 110 SCRA 296, the Supreme Court ruled: As aptly ruled by respondent Bureau of Labor Relations Director Noriel: "The rights of workers to selforganization finds general and specific constitutional guarantees. x x x Such constitutional guarantees should not be lightly taken much less nullified. A healthy respect for the freedom of association demands that acts imputable to officers or members be not easily visited with capital punishments against the association itself." At any rate, we note that on 19 May 2000, appellee had submitted its financial statement for the years 19961999. With this submission, appellee has substantially complied with its duty to submit its financial report for the said period. To rule differently would be to preclude the union, after having failed to meet its periodic obligations promptly, from taking appropriate measures to correct its omissions. For the record, we do not view

with favor appellees late submission. Punctuality on the part of the union and its officers could have prevented 41 this petition. WHEREFORE, premises considered, the Court of Appeals Decision dated May 30, 2005 and Resolution dated June 4, 2007 are AFFIRMED. SO ORDERED. G.R. No. 180236 January 17, 2012

GEMMA P. CABALIT, Petitioner, vs. COMMISSION ON AUDIT-REGION VII, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 180341 FILADELFO S. APIT, Petitioner, vs. COMMISSION ON AUDIT (COA) Legal and Adjudication, Region VII, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 180342 LEONARDO G. OLAIVAR, in his capacity as Transportation Regulation Officer and Officer-In-Charge of Land Transportation Office, Jagna, Province of Bohol, Petitioner, vs. HON. PRIMO C. MIRO, in his official capacity as Deputy Ombudsman for Visayas, EDGARDO G. CANTON, in his capacity as Graft Investigator Officer, ATTY. ROY L. URSAL, in his capacity as Regional Cluster Director, Commission on Audit, Cebu City, Respondents. DECISION VILLARAMA, JR., J.: Three employees from the Land Transportation Office (LTO) in Jagna, Bohol were found by the Ombudsman to have perpetrated a scheme to defraud the government of proper motor vehicle registration fees. They now seek 1 in the present consolidated petitions a judgment from this Court annulling the January 18, 2006 Decision and

September 21, 2007 Resolution of the Court of Appeals (CA) which affirmed with modification the Decision of the Office of the Ombudsman-Visayas dismissing them from government service. The facts follow: On September 4, 2001, the Philippine Star News, a local newspaper in Cebu City, reported that employees of the 4 LTO in Jagna, Bohol, are shortchanging the government by tampering with their income reports. Accordingly, Regional Director Ildefonso T. Deloria of the Commission on Audit (COA) directed State Auditors Teodocio D. Cabalit and Emmanuel L. Coloma of the Provincial Revenue Audit Group to conduct a fact-finding investigation. A widespread tampering of official receipts of Motor Vehicle Registration during the years 1998, 1999, 2000 and 2001 was then discovered by the investigators. According to the investigators, a total of 106 receipts were tampered. The scheme was done by detaching the Plate Release and Owners copy from the set of official receipts then typing thereon the correct details corresponding to the vehicle registered, the owners name and address, and the correct amount of registration fees. The other copies, consisting of the copies for the Collector, EDP, Record, Auditor, and Regional Office, meanwhile, were typed on to make it appear that the receipts were issued mostly for the registration of motorcycles with much lower registration charges. Incorrect names and/or addresses were also used on said file copies. The difference between the amounts paid by the vehicle owners and the amounts appearing on the file copies were then pocketed by the perpetrators, and only the lower amounts appearing on the retained duplicate 5 file copies were reported in the Report of Collections. According to State Auditors Cabalit and Coloma in their Joint-Affidavit, the scheme was perpetrated by LTO employees Leonardo G. Olaivar, Gemma P. Cabalit, Filadelfo 6 S. Apit and Samuel T. Alabat, and resulted in an unreported income totaling P169,642.50. On August 8, 2002, COA Regional Cluster Director Atty. Roy L. Ursal reported the tampering of official receipts to 7 Deputy Ombudsman Primo C. Miro. According to Atty. Ursal, the irregularity is penalized under Article 217, in 8 9 relation to Article 171 of the Revised Penal Code; Section 3(e) of the Anti-Graft and Corrupt Practices Act, and 10 likewise violates Republic Act (R.A.) No. 6713. In a Joint Evaluation Report, Graft Investigators Pio R. Dargantes and Virginia Palanca-Santiago found grounds to 11 conduct a preliminary investigation. Hence, a formal charge for dishonesty was filed against Olaivar, Cabalit, Apit and Alabat before the Office of the Ombudsman-Visayas, and the parties were required to submit their counter-affidavits. In compliance, Olaivar, Cabalit, Apit and Alabat submitted separate counter-affidavits, all essentially denying knowledge and responsibility for the anomalies. As to Olaivar, he maintained that the receipts were typed outside his office by regular and casual employees. He claimed that the receipts were presented to him only for 12 signature and he does not receive the payment when he signs the receipts. Cabalit, for her part, claimed that her duty as cashier was to receive collections turned over to her and to deposit them in the Land Bank of the Philippines in Tagbilaran City. She claimed that she was not even aware of any anomaly in the collection of fees 13 prior to the investigation. As to Apit, he admitted that he countersigned the official receipts, but he too denied being aware of any illegal activity in their office. He claimed that upon being informed of the charge, he verified

the photocopies of the tampered receipts and was surprised to find that the signatures above his name were 14 falsified. Alabat, meanwhile, claimed he did not tamper, alter or falsify any public document in the performance of his duties. He insisted that the initial above his name on Official Receipt No. 64056082 was 15 Apits, while the initial on Official Receipt No. 64056813 was that of Olaivar. During the hearing before Graft Investigator Pio R. Dargantes, State Auditor Cabalit testified on the investigation he conducted in the LTO in Jagna, Bohol. He testified that he was furnished with the owners and duplicate copies of the tampered receipts. Upon comparison of the Owners copy with the Collector or Records copy, he noticed that the amounts shown in the original copies were much bigger than those appearing in the file copies. State Auditor Cabalit also declared that the basis for implicating Olaivar is the fact that his signature appears in all the 106 tampered official receipts and he signed as verified correct the Report of Collections, which included 16 the tampered receipts. As to Apit and Cabalit, they are the other signatories of the official receipts. In some official receipts, the Owners copy is signed by F.S. Apit as Computer Evaluator, G.P. Cabalit as Cashier, and 17 Leonardo Olaivar as District Head, but their signatures do not appear on the file copies. On February 12, 2004, the Office of the Ombudsman-Visayas directed the parties to submit their position papers pursuant to Administrative Order (A.O.) No. 17, dated September 7, 2003, amending the Rules of 19 Procedure of the Office of the Ombudsman. No cross-examination of State Auditor Cabalit was therefore conducted. Complying with the above Order, the COA submitted its position paper on March 18, 2004. Olaivar, Cabalit and Apit, for their part, respectively submitted their position papers on April 29, 2004, March 18, 2004 and March 15, 2004. In its position paper, the COA pointed out that the signatures of Cabalit, Apit and Olaivar were indispensable to the issuance of the receipts. As to Olaivar, the original receipts bear his signature, thereby showing that he approved of the amounts collected for the registration charges. However, when the receipts were reported in the Report of Collections, the data therein were already tampered reflecting a much lesser amount. By affixing his signature on the Report of Collections and thereby attesting that the entries therein were verified by him as correct, he allowed the scheme to be perpetrated. As to Cabalit, the COA pointed out that as cashier, Cabalits signature on the receipts signified that she received the registration fees. The correct amounts should have therefore appeared in the Report of Collections, but as already stated, lesser amounts appeared on the Report of Collections, which she prepares. In the same manner, Apit, as computer evaluator, also signed the subject receipts allowing the irregularities to be perpetuated.1avvphi1 In his position paper, Olaivar meanwhile insisted that he had no participation in the anomalies. He stressed that his only role in the issuance of the official receipts was to review and approve the applications, and that he was the last one to sign the official receipts. He argued that based on the standard procedure for the processing of applications for registration of motor vehicles, it could be deduced that there was a concerted effort or conspiracy among the evaluator, typist and cashier, while he was kept blind of their modus operandi.
21 20 18

Cabalit, for her part, questioned the findings of the investigators. She stressed in her position paper that had there been a thorough investigation of the questioned official receipts, the auditors would have discovered that the signatures appearing above her name were actually that of Olaivar. She outlined the standard paper flow of a regular transaction at the LTO. It begins when the registrant goes to the computer evaluator for the computation of applicable fees and proceeds to the cashier for payment. After paying, the typist will prepare the official receipts consisting of seven (7) copies, which will be routed to the computer evaluator, to the district head, and to the cashier for signature. The cashier retains the copies for the EDP, Regional Office, Collector and Auditor, while the remaining copies (Owner, Plate Release and Records copy) will be forwarded to the Releasing Section for distribution and release. Cabalit insisted that on several occasions Olaivar disregarded the standard procedure and directly accommodated some registrants who were either his friends or referred to him by friends. For such transactions, Olaivar assumes the functions of computer evaluator, typist and cashier, as he is the one who computes the fees, receives the payment and prepares the official receipts. Olaivar would then remit the payment to her. As the cashier, she has to accept the payment as a matter of ministerial duty. Apit, meanwhile, stressed in his position paper that the strokes of the signatures appearing above his typewritten name on the official receipts are different, indicating that the same are falsified. He also explained that considering that the LTO in Jagna issues around 20 to 25 receipts a day, he signed the receipts relying on the faith that his co-employees had properly accomplished the forms. He also pointed out that Engr. Dano admitted signing accomplished official receipts when the regular computer encoder is out, which just shows that other personnel could have signed above the name of F.S. Apit.lawphil On May 3, 2004, the Office of the Ombudsman-Visayas rendered judgment finding petitioners liable for dishonesty for tampering the official receipts to make it appear that they collected lesser amounts than they actually collected. The OMB-Visayas ruled: WHEREFORE, premises considered, it is hereby resolved that the following respondents be found guilty of the administrative infraction of DISHONESTY and accordingly be meted out the penalty of DISMISSAL FROM THE SERVICE with the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service: 1. Leonardo G. Olaivar -Transportation Regulation Officer II/ Office[r]-In-Charge LTO Jagna District Office Jagna, Bohol; 2. Gemma P. Cabalit - Cashier II, LTO Jagna District Office Jagna, Bohol; 3. Filadelpo S. Apit - Clerk II, LTO Jagna District Office Jagna, Bohol;
23

22

The complaint against respondent Samuel T. Alabat, presently the Head of Apprehension Unit of the Tagbilaran City LTO, is hereby DISMISSED for insufficiency of evidence. The complaint regarding the LTO official receipts/MVRRs issued by the LTO Jagna District Office, which are not covered by original copies are hereby DISMISSED without prejudice to the filing of the appropriate charges upon the recovery of the original copies thereof. SO DECIDED.
24

Petitioners sought reconsideration of the decision, but their motions were denied by the Ombudsman. Thus, they separately sought recourse from the CA. On January 18, 2006, the CA promulgated the assailed Decision in CA-G.R. SP. Nos. 86256, 86394 and 00047. The dispositive portion of the CA decision reads, WHEREFORE, premises considered, judgment is hereby rendered by US DISMISSING the instant consolidated petitions. The assailed decision of the Office of the Ombudsman-Visayas dated May 3, 2004 in OMB-V-A-020415-H is hereby AFFIRMED with a modification that petitioner Olaivar be held administratively liable for gross neglect of duty which carries the same penalty as provided for dishonesty. No pronouncement as to costs. SO ORDERED.
26

25

According to the CA, it was unbelievable that from 1998 to 2001, Cabalit and Apit performed vital functions by routinely signing LTO official receipts but did not have any knowledge of the irregularity in their office. With regard to Olaivar, the CA believed that the tampering of the receipts could have been avoided had he exercised the required diligence in the performance of his duties. Thus, the CA held him liable merely for gross neglect of duty. Petitioners sought reconsideration of the CA decision, but the CA denied their motions. Hence, they filed the instant petitions before the Court. In her petition, petitioner Cabalit argues that I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE OMBUDSMAN'S DECISION WHICH GAVE RETROACTIVE EFFECT TO THE NEW ADMINISTRATIVE ORDER NO. 17 IN THE PROCEEDINGS BELOW THAT WAS ALREADY ON TRIAL IN ACCORDANCE WITH ADMINISTRATIVE ORDER NO. 07. II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT ALTHOUGH THE TRIAL TYPE HEARING UNDER ADMINISTRATIVE ORDER NO. 07 DID NOT PUSH THRU, PETITIONER WAS STILL
27

ACCORDED HER RIGHT TO DUE PROCESS UNDER THE SUMMARY PROCEEDINGS PURSUANT TO ADMINISTRATIVE ORDER NO. 17. III. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT AFFIRMED THE DECISION OF RESPONDENT OMBUDSMAN DESPITE HAVING FAILED TO MAKE A CATEGORICAL RULING ON THE ISSUE OF WHETHER THE QUESTIONED AND/OR FORGED SIGNATURES BELONG TO PETITIONER GEMMA CABALIT. IV. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE DOCTRINAL VALUE AND/OR APPLICABILITY OF THE TAPIADOR VS. OFFICE OF THE 28 OMBUDSMAN (G.R. [129124], MARCH 15, 2002) RULING HERE IN THE INSTANT CASE. Meanwhile, Apit interposes the following arguments in his petition: I. THE COURT OF APPEALS ERRED IN LIMITING ADMINISTRATIVE DUE PROCESS AS AN OPPORTUNITY TO BE HEARD ONLY. II. THE COURT OF APPEALS ERRED IN CONCLUDING THE DEFENSE OF PETITIONER APIT AS MERE DENIAL. III. THE COURT OF APPEALS ERRED IN ITS FAILURE TO RECONSIDER THE EVIDENCE THAT CLEARLY PROVED THAT THE SIGNATURES ABOVE THE NAME OF PETITIONER APIT IN THE QUESTIONED RECEIPTS 29 ARE ALL FORGED AND FALSIFIED. As for Olaivar, he assails the CA Decision raising the following issues: I. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT PETITIONER LEONARDO G. OLAIVAR IS ADMINISTRATIVELY LIABLE FOR GROSS NEGLIGENCE. II. WHETHER THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT PETITIONER LEONARDO G. OLAIVAR WAS NOT DENIED DUE PROCESS WHEN THE OFFICE OF THE OMBUDSMAN VISAYAS FOUND 30 HIM GUILTY FOR DISHONESTY AND METED OUT THE PENALTY OF DISMISSAL FROM SERVICE. On January 15, 2008, said petitions were consolidated.
31

As regards the first issue, petitioners claim that they were denied due process of law when the investigating lawyer proceeded to resolve the case based only on the affidavits and other evidence on record without conducting a formal hearing. They lament that the case was submitted for decision without giving them opportunity to present witnesses and cross-examine the witnesses against them. Petitioner Cabalit also argues that the Office of the Ombudsman erred in applying the amendments under A.O. No. 17 to the trial of the case, which was already in progress under the old procedures under A.O. No. 07. She stressed that under A.O. No. 07, she had the right to choose whether to avail of a formal investigation or to submit the case for resolution on the basis of the evidence on record. Here, she was not given such option and was merely required to submit her position paper. Petitioners arguments deserve scant consideration. Suffice to say, petitioners were not denied due process of law when the investigating lawyer proceeded to 32 resolve the case based on the affidavits and other evidence on record. Section 5(b)(1) Rule 3, of the Rules of Procedure of the Office of the Ombudsman, as amended by A.O. No. 17, plainly provides that the hearing officer may issue an order directing the parties to file, within ten days from receipt of the order, their respective verified position papers on the basis of which, along with the attachments thereto, the hearing officer may consider the case submitted for decision. It is only when the hearing officer determines that based on the evidence, there is a need to conduct clarificatory hearings or formal investigations under Section 5(b)(2) and Section 5(b)(3) that such further proceedings will be conducted. But the determination of the necessity for further proceedings rests on the sound discretion of the hearing officer. As the petitioners have utterly failed to show any cogent reason why the hearing officers determination should be overturned, the determination will not be disturbed by this Court. We likewise find no merit in their contention that the new procedures under A.O. No. 17, which took effect while the case was already undergoing trial before the hearing officer, should not have been applied. The rule in this jurisdiction is that one does not have a vested right in procedural rules. In Tan, Jr. v. Court of 33 Appeals, the Court elucidated: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent. The fact that procedural statutes may somehow affect the litigants rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. Nor is the retroactive application of procedural statutes constitutionally objectionable. The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws.It has been held that "a person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure. (Emphasis supplied.) While the rule admits of certain exceptions, such as when the statute itself expressly or by necessary implication provides that pending actions are excepted from its operation, or where to apply it would impair vested rights, petitioners failed to show that application of A.O. No. 17 to their case would cause injustice to them. Indeed, in this case, the Office of the Ombudsman afforded petitioners every opportunity to defend themselves by allowing

Essentially, the issues for our resolution are: (1) whether there was a violation of the right to due process when the hearing officer at the Office of the Ombudsman-Visayas adopted the procedure under A.O. No. 17 notwithstanding the fact that the said amendatory order took effect after the hearings had started; and (2) whether Cabalit, Apit and Olaivar are administratively liable.

them to submit counter-affidavits, position papers, memoranda and other evidence in their defense. Since petitioners have been afforded the right to be heard and to defend themselves, they cannot rightfully complain that they were denied due process of law. Well to remember, due process, as a constitutional precept, does not always and in all situations require a trial-type proceeding. It is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum requirements of due process. More often, this opportunity is conferred through written 34 pleadings that the parties submit to present their charges and defenses. But as long as a party is given the 35 opportunity to defend his or her interests in due course, said party is not denied due process. Neither is there merit to Cabalits assertion that she should have been investigated under the "old rules of 36 procedure" of the Office of the Ombudsman, and not under the "new rules." In Marohomsalic v. Cole, we clarified that the Office of the Ombudsman has only one set of rules of procedure and that is A.O. No. 07, series of 1990, as amended. There have been various amendments made thereto but it has remained, to date, the only set of rules of procedure governing cases filed in the Office of the Ombudsman. Hence, the phrase "as amended" is correctly appended to A.O. No. 7 every time it is invoked. A.O. No. 17 is just one example of these amendments. But did the CA correctly rule that petitioners Cabalit and Apit are liable for dishonesty while petitioner Olaivar is liable for gross neglect of duty? Cabalit argues that the CA erred in affirming the decision of the Ombudsman finding her liable for dishonesty. She asserts that it was not established by substantial evidence that the forged signatures belong to her. Meanwhile, Apit contends that the CA erred in not considering evidence which proves that the signatures appearing above his name are falsified. However, we note that both Cabalit and Apit raise essentially factual issues which are not proper in petitions filed under Rule 45. Settled jurisprudence dictates that subject to a few exceptions, only questions of law may be brought before the Court via a petition for review on certiorari. In Diokno v. 37 Cacdac, the Court held: x x x *T+he scope of this Courts judicial review of decisions of the Court of Appeals is generally confined only to errors of law, and questions of fact are not entertained. We elucidated on our fidelity to this rule, and we said: Thus, only questions of law may be brought by the parties and passed upon by this Court in the exercise of its power to review. Also, judicial review by this Court does not extend to a reevaluation of the sufficiency of the evidence upon which the proper x x x tribunal has based its determination. (Emphasis supplied.) It is aphoristic that a re-examination of factual findings cannot be done through a petition for review on certiorari under Rule 45 of the Rules of Court because this Court is not a trier of facts; it reviews only questions of law. The 38 Supreme Court is not duty-bound to analyze and weigh again the evidence considered in the proceedings below. Here, the CA affirmed the findings of fact of the Office of the Ombudsman-Visayas which are supported by 39 substantial evidence such as affidavits of witnesses and copies of the tampered official receipts. The CA found

that a perusal of the questioned receipts would easily reveal the discrepancies between the date, name and vehicle in the Owner's or Plate Release copies and the File, Auditor, and Regional Office copies. It upheld the factual findings of the Ombudsman that petitioners Cabalit and Apit tampered with the duplicates of the official receipts to make it appear that they collected a lesser amount. Their participation was found to have been indispensable as the irregularities could not have been committed without their participation. They also concealed the misappropriation of public funds by falsifying the receipts. Now, superior courts are not triers of facts. When the findings of fact of the Ombudsman are supported by 40 substantial evidence, it should be considered as conclusive. This Court recognizes the expertise and independence of the Ombudsman and will avoid interfering with its findings absent a finding of grave abuse of 41 discretion. Hence, being supported by substantial evidence, we find no reason to disturb the factual findings of the Ombudsman which are affirmed by the CA. As for Olaivar, he insists that the CA erred in holding him administratively liable for gross negligence when he relied to a reasonable extent and in good faith on the actions of his subordinates in the preparation of the applications for registration. He questions the appellate courts finding that he failed to exercise the required diligence in the performance of his duties.1avvphi1 While as stated above, the general rule is that factual findings of the CA are not reviewable by this Court, we find that Olaivars case falls in one of the recognized exceptions laid down in jurisprudence since the CAs findings regarding his liability are premised on the supposed absence of evidence but contradicted by the evidence on 42 record. The Office of the Ombudsman-Visayas found Olaivar administratively liable for dishonesty while the CA ruled that he may not be held liable for dishonesty supposedly for lack of sufficient evidence. The CA ruled that there was no substantial evidence to show that Olaivar participated in the scheme, but the tampering of the official receipts could have been avoided had he exercised the required diligence in the performance of his duties as officer-in-charge of the Jagna District Office. Thus, the CA found him liable only for gross neglect of duty. This, however, is clear error on the part of the CA. For one, there is clear evidence that Olaivar was involved in the anomalies. Witness Joselito Taladua categorically 43 declared in his affidavit that he personally paid Olaivar the sum of P2,675 for the renewal of registration of a jeep for which he was issued Official Receipt No. 47699853. Much to his dismay, Taladua later found out that his payment was not reflected correctly in the Report of Collections, and that the vehicle was deemed unregistered for the year 2000. More, Cabalit pointed to Olaivar as the person behind the anomaly in the LTO-Jagna District Office. She narrated in her position paper that on several times, Olaivar directly accommodated some registrants and assumed the functions of computer evaluator, typist and cashier, and computed the fees, received payment and prepared the official receipts for those transactions. She also revealed that Olaivar would ask her for unused official receipts and would later return the duplicate copies to her with the cash collections. Later, he would verify the Report of 44 Collections as correct.

Likewise, Motor Vehicle Inspector Engr. Lowell A. Dano confirmed that in several instances, he witnessed Olaivar type the data himself in the official receipts even if they have a typist in the office to do the job. Engr. Dano added that after typing, Olaivar personally brought the accomplished official receipts for him (Engr. Dano) to 45 sign. Moreover, Jacinto Jalop, the records officer of the LTO in Jagna, Bohol, illustrated how the official receipts were tampered. He disclosed that the correct charges were typed in the Owners copy and the Plate Release copy of the official receipts, but a much lower charge and an incorrect address were indicated in the other copies. He 46 asserted that Olaivar was responsible for tampering the official receipts. Neglect of duty implies only the failure to give proper attention to a task expected of an employee arising from 47 either carelessness or indifference. However, the facts of this case show more than a failure to mind ones task. Rather, they manifest that Olaivar committed acts of dishonesty, which is defined as the concealment or distortion of truth in a matter of fact relevant to ones office or connected with the performance of his duty. It implies a disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, 48 probity, or integrity in principle. Hence, the CA should have found Olaivar liable for dishonesty. But be that as it may, still, the CA correctly imposed the proper penalty upon Olaivar. Under Section 52, Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, dishonesty, like gross neglect of duty, is 49 classified as a grave offense punishable by dismissal even if committed for the first time. Under Section 50 58, such penalty likewise carries with it the accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and disqualification from re-employment in the government service. One final note. Cabalit contends that pursuant to the obiter in Tapiador v. Office of the Ombudsman, the Office of the Ombudsman can only recommend administrative sanctions and not directly impose them. However, 52 in Office of the Ombudsman v. Masing, this Court has already settled the issue when we ruled that the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory. We held, We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that "the Ombudsmans order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory." Implementation of the order imposing the penalty is, however, to be coursed through the proper officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x x removal, suspension, demotion x x x" of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary authority as provided in Section 21" of RA 6770. 53 (emphasis supplied.) Subsequently, in Ledesma v. Court of Appeals, and Office of the Ombudsman v. Court of Appeals, the Court upheld the Ombudsmans power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault in the exercise of its administrative disciplinary
54 55 51

authority. In Office of the Ombudsman v. Court of Appeals, we held that the exercise of such power is well founded in the Constitution and R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, thus: The Court further explained in Ledesma that the mandatory character of the Ombudsmans order imposing a sanction should not be interpreted as usurpation of the authority of the head of office or any officer concerned. This is because the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer or employee, the provisions in the Constitution and in Republic Act No. 6770 intended that the implementation of the order be coursed through the proper officer. Consequently in Ledesma, the Court affirmed the appellate courts decision which had, in turn, affirmed an order 56 of the Office of the Ombudsman imposing the penalty of suspension on the erring public official. The duty and privilege of the Ombudsman to act as protector of the people against the illegal and unjust acts of those who are in the public service emanate from no less than the 1987 Constitution. Section 12 of Article XI thereof states: Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. In addition, Section 15 (3) of R.A. No. 6770, provides: SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: xxxx (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. xxxx Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all administrative complaints:

SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (1) Are contrary to law or regulation;

With costs against petitioners. SO ORDERED. Adm. Case No. 6475 January 30, 2013

(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; DECISION (5) Are in the exercise of discretionary powers but for an improper purpose; or BRION, J.: (6) Are otherwise irregular, immoral or devoid of justification. In the exercise of his duties, the Ombudsman is given full administrative disciplinary authority. His power is not limited merely to receiving, processing complaints, or recommending penalties. He is to conduct investigations, hold hearings, summon witnesses and require production of evidence and place respondents under preventive suspension. This includes the power to impose the penalty of removal, suspension, demotion, fine, or censure of 57 a public officer or employee. The provisions in R.A. No. 6770 taken together reveal the manifest intent of the lawmakers to bestow on the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the 58 evidence, and, necessarily, impose the said penalty. Thus, it is settled that the Office of the Ombudsman can directly imposeadministrative sanctions. We find it worthy to state at this point that public service requires integrity and discipline.1avvphi1 For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be 59 accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. WHEREFORE, the petitions for review on certiorari are DENIED. The assailed Decision dated January 18, 2006 and Resolution dated September 21, 2007 of the Court of Appeals in CA-G.R. SP. Nos. 86256, 86394 and 00047 are AFFIRMED with MODIFICATION. Petitioner Leonardo G. Olaivar is held administratively liable forDISHONESTY and meted the penalty of dismissal from the service as well as the accessory penalties inherent to said penalty. For the Court's consideration is the disbarment complaint tiled by Fe A. Ylaya (complainant) against Atty. Glenn Carlos Gacott (respondent) who allegedly deceived the complainant and her late husband, Laurentino L. Ylaya, into signing a "preparatory" Deed of Sale that the respondent converted into a Deed of Absolute Sale in favor of his relatives. After the submission of the respondent's comment to the complaint, the Court referred the complaint to the Commission on Bar Discipline ofthe Integrated Bar of the Philippines (IBP) for investigation, evaluation and recommendation. The complainant alleged that she and her late husband are the registered owners of two (2) parcels of land covered by Transfer Certificate of Title ( TCT) Nos. 162632 and 162633 located at Barangay Sta. Lourdes, Puerto Princesa City. Prior to the acquisition of these properties, TCT No. 162632 (property) was already the subject of expropriation proceedings filed by the City Government of Puerto Princesa (City Government) on May 23, 1996 against its former registered owner, Cirilo Arellano. The expropriation case was filed with the Regional Trial Court (RTC) of Palawan and Puerto Princesa, Branch 95, and was docketed as Civil Case No. 2902. The RTC already fixed the price and issued an order for the City Government to deposit P6,000,000.00 as just compensation for the 2 property. The respondent briefly represented the complainant and her late husband in the expropriation case as intervenors for being the new registered owners of the property. The complainant alleged that the respondent convinced them to sign a "preparatory deed of sale" for the sale of the property, but he left blank the space for the name of the buyer and for the amount of consideration. The respondent further alleged that the deed would 3 be used in the sale to the City Government when the RTC issues the order to transfer the titles. The respondent then fraudulently without their knowledge and consent, and contrary to their understanding converted the 4 "preparatory deed of sale" into a Deed of Absolute Sale dated June 4, 2001, selling the subject property to 5 Reynold So and Sylvia Carlos So for P200,000.00.
1

FE A. YLAYA, Complainant, vs. ATTY. GLENN CARLOS GACOTT, Respondent.

The complainant denied that she and Laurentino were paid the P200,000.00 purchase price or that they would 6 sell the property "for such a measly sum" when they stood to get at least P6,000,000.00 as just compensation. The complainant also claimed that the respondent notarized the Deed of Absolute Sale dated June 4, 2001 even 7 though Reynold and Sylvia (his mothers sister) are his uncle and his aunt, respectively. The respondent denied all the allegations in the complaint.
8

3(c), Rule IV of A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice). She recommended his suspension from 27 the practice of law for a period of six (6) months. In its Resolution No. XVIII-2007-302 dated December 14, 2007, the IBP Board of Governors adopted the IBP Commissioners finding, but increased the penalty imposed to two (2) years suspension and a warning: RESOLVED to ADOPT and APPROVE, as it is hereby unanimously ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner [in] the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering respondents violations of Canon 1, *Rule+ 1.01 and Canon 16 of the Code of Professional Responsibility and Rule IV, Sec. 39(c) of A.M. No. 02-8-13-SC (2004 Rules on Notarial Practice), Atty. Glenn Carlos Gacott is hereby SUSPENDED from practice of law for two (2) years with a Warning that commission of a similar offense will be dealt with more severely. [emphases supplied] On May 8, 2008, the respondent filed a Motion for Reconsideration dated April 21, 2008, attaching, among others, a copy of the complainants Affidavit dated February 27, 2008, admitting the existence, genuineness and due execution of the Deed of Absolute Sale between Cirilo and Laurentino; the MOA between Laurentino and Reynold; the Deed of Absolute Sale between Laurentino and Reynold; and the Compromise Agreement between 29 Reynold and the complainant dated November 14, 2006 for the expropriation case. On September 4, 2008, the respondent filed a Manifestation with the Supreme Court, requesting that the IBP be 30 directed to resolve his Motion for Reconsideration. By Resolution No. XIX-2010-545 dated October 8, 2010, the IBP Board of Governors denied the respondents Motion for Reconsideration for failing to raise any new substantial matter or any cogent reason to warrant a 32 reversal or even a modification of its Resolution No. XVIII-2007-302. On March 14, 2012, the respondent filed a Petition for Review (on appeal) assailing the IBPs findings, as 33 follows: a) In conveniently concluding that the Deed of Absolute Sale was pre-signed and fraudulently notarized without requiring Fe Ylaya to adduce evidence in a formal hearing thus, violated the respondents right to due process as he was not able to cross-examine her. This is not to mention that the complainant failed to offer corroborative proof to prove her bare allegations; b) In sweepingly and arbitrarily disregarded/skirted (sic) the public documents (MOA and 2 other DOAS) duly executed by the parties therein and notarized by the respondent; c) In totally ignoring the complainants Affidavit admitting the genuineness and due execution of the Deed of Absolute Sale in issue;
31 28

26

The respondent argued that the complainants greed to get the just Compensation caused her to file this 10 "baseless, unfounded and malicious" disbarment case. He claimed that the sale was their voluntary transaction 11 and that he "simply ratified the document." He also claimed that Reynold and Laurentino had originally jointly purchased the properties from Cirilo Arellano on July 10, 2000; that they were co-owners for some time; and 12 that Laurentino subsequently sold his share to Reynold under a Deed of Absolute Sale dated June 4, 2001. The respondent specifically denied asking the complainant and her late husband to execute any "preparatory 13 deed of sale" in favor of the City Government. He also denied that the Deed of Absolute Sale contained blanks 14 when they signed it. That he filed for the spouses Ylaya and Reynold an opposition to the just compensation 15 the RTC fixed proved that there was no agreement to use the document for the expropriation case. He also argued that it was clear from the document that the intended buyer was a natural person, not a juridical person, 16 because there were spaces for the buyers legal age, marital status, and citizenship, and he was even constrained to file a subsequent Motion to Intervene on behalf of Reynold because the complainant "maliciously 17 retained" the TCTs to the subject properties after borrowing them from his office. Lastly, he denied violating 18 the Rules on Notarial Practice. On September 4, 2006, the respondent filed a Motion to Resolve or Decide the Case dated August 24, 2006 19 praying for the early resolution of the complaint. On December 5, 2006, the complainant filed an Ex Parte Motion to Withdraw the Verified Complaint and To 20 Dismiss the Case dated November 14, 2006. On February 28, 2008, the complainant executed an Affidavit affirming and confirming the existence, 22 genuineness and due execution of the Deed of Absolute Sale notarized on March 6, 2000; the Memorandum of 23 24 Agreement (MOA) dated April 19, 2000; and the Deed of Absolute Sale notarized in 2001. The respondent 25 submitted this Affidavit to the IBP as an attachment to his Motion for Reconsideration of April 21, 2008. The IBPs Findings In her Report and Recommendation dated November 19, 2007, IBP Commissioner Anna Caridad Sazon-Dupaya found the respondent administratively liable for violating Canon 1, Rule 1.01 (A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct) and Canon 16 ("A lawyer shall hold in trust all moneys and properties of his client that may come into his possession) of the Code of Professional Responsibility, and Section
21

d) In arbitrarily concluding the absence of co-ownership by Reynold So and Fe Ylaya of the subject lots despite the existence of a notarized MOA clearly showing the co-ownership of Ylaya and So; and e) In finding the respondent/appellants act of notarizing the DOAS as contrary to the notarial rules. The Issues From the assigned errors, the complainant poses the following issues: (1) whether the IBP violated the respondents right to due process; and (2) whether the evidence presented supports a finding that the respondent is administratively liable for violating Canon 1, Rule 1.01 and Canon 16 of the Code of Professional Responsibility, and Section 3(c), Rule IV of A.M. No. 02-8-13-SC. The Courts Ruling We set aside the findings and recommendations of the IBP Commissioner and those of the IBP Board of Governors finding the respondent liable for violating Canon 1, Rules 1.01 and Section 3(c), Rule IV of A.M. No. 34 02-8-13-SC. We however hold the respondent liable for violating Canon 16 of the Code of Professional Responsibility for being remiss in his obligation to hold in trust his clients properties. We likewise find him liable for violation of (1) Canon 15, Rule 15.03 for representing conflicting interests without the written consent of the represented parties, thus, violating the rule on conflict of interests; and (2) Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him. a. Due process violation The most basic tenet of due process is the right to be heard. Denial of due process means the total lack of opportunity to be heard or to have ones day in court. As a rule, no denial of due process takes plac e where a 35 party has been given an opportunity to be heard and to present his case; what is prohibited is the absolute lack of opportunity to be heard. The respondent claims that the IBP violated his right to due process because he was not given the "amplest opportunity to defend himself, to cross examine the witness complainant, to object to the admissibility of 36 documents or present controverting evidence" when the IBP rendered its conclusion without requiring the complainant to adduce evidence in a formal hearing and despite the absence of corroborative proof. He insists that these defects rendered the complainants allegations as hearsay, and the IBPs report, recommendation or resolution null and void.

Although the respondent failed to have a face-to-face confrontation with the complainant when she failed to 37 appear at the required mandatory conference on October 6, 2005, the records reveal that the respondent fully participated during the entire proceedings and submitted numerous pleadings, including evidence, before the IBP. He was even allowed to file a motion for reconsideration supported by his submitted evidence, which 38 motion the IBP considered and ruled upon in its Resolution No. XIX-2010-545 dated October 8, 2010. In Alliance of Democratic Free Labor Organization v. Laguesma, we held that due process, as applied to 40 administrative proceedings, is the opportunity to explain ones side. In Samalio v. Court of Appeals, due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where the opportunity to be heard, either through oral arguments or through pleadings, is accorded, no denial of procedural due process takes place. The requirements of due process are satisfied where the parties are afforded a fair and reasonable opportunity to explain their side of the controversy at hand. Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the President, we held that "due process, as a constitutional precept, does not always, and in all situations, require a trial-type proceeding. Litigants may be heard through pleadings, written explanations, position papers, memoranda or oral arguments. The standard of due process that must be met in administrative tribunals allows a certain degree of latitude[, provided that] fairness is not ignored. It is, therefore, not legally objectionable for being violative of due process, for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the 42 parties." In this case, the respondents failure to cross-examine the complainant is not a sufficient ground to support the claim that he had not been afforded due process. The respondent was heard through his pleadings, his submission of alleged controverting evidence, and his oral testimony during the October 6, 2005 mandatory conference. These pleadings, evidence and testimony were received and considered by the IBP Commissioner when she arrived at her findings and recommendation, and were the bases for the IBP Boards Resolution. Moreover, "any seeming defect in the observance of due process is cured by the filing of a motion for reconsideration. A denia of due process cannot be successfully invoked by a party who has had the opportunity to be heard on his motion for reconsideration. Undoubtedly in this case, the requirement of the law was 43 afforded to the respondent." We also note that the respondent, on a Motion to Resolve or Decide the Case dated August 24, 2006, submitted his case to the IBP for its resolution without any further hearings. The motion, filed almost one year after the mandatory conference on October 6, 2005, significantly did not contain any statement regarding a denial of due process. In effect, the respondent himself waived his cross-examination of the complainant when he asked the IBP Board of Governors to resolve the case based on the pleadings and the evidence on record. To quote his own submission: 1. On June 30, 2004, a complaint was filed in this case;
41 39

2. On October 19, 2004, the respondent filed his comment with all its attachments denying all the allegations in the complaint; 3. On June 23, 2005, the respondent filed his position paper. On April 28, 2006, the respondent also filed his supplemental position paper. By contrast, up to this date, the complainant/petitioner has not filed her verified position paper thus, waived her right to file the same; 4. There being no other genuine issues to be heard in this case as all the defenses and counterarguments are supported by documentary evidence, it is most respectfully prayed that the instant case be resolved on its merits or be ordered dismissed for lack of merit without further hearing; 5. Further, considering that there is an on-going case in Branch 52 of the Regional Trial Court of Palawan in Civil Case No. 2902 for Expropriation involving the same property, and such fact was deliberately omitted by the complainant in her Verified Complaint as shown in the certification of nonforum shopping, the outright dismissal of this case is warranted, hence, this motion; and 6. This is meant to expedite the termination of this case. (underscore ours; italics supplied) Finally, we note Section 11, Rule 139-B of the Rules of Court which provides that: No defect in a complaint, notice, answer, or in the proceeding or the Investigators Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstances may warrant, including invalidation of the entire proceedings. In this case, the IBP Commissioners findings were twice reviewed by the IBP Board of Governors the first 45 review resulted in Resolution No. XVIII-2007-302 dated December 14, 2007, affirming the IBP Commissioners findings, but modifying the penalty; the second review resulted in Resolution No. XIX-2010-545 dated October 8, 46 2010, denying the respondents motion for reconsideration. In both instances, the IBP Board of Governors found no defect or miscarriage of justice warranting a remedial action or the invalidation of the proceedings. We emphasize that disciplinary proceedings against lawyers are sui generis in that they are neither purely civil 47 nor purely criminal; they involve investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit. Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but is rather an investigation by the Court into the conduct of one of its officers. Not being intended to inflict punishment, it is in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. It may be initiated by the Court motu proprio. Public interest is its
44

primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have proved themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. [emphases deleted] The complainant in disbarment cases is not a direct party to the case but a witness who brought the matter to 48 the attention of the Court. Flowing from its sui generis character, it is not mandatory to have a formal hearing in which the complainant must adduce evidence. From all these, we find it clear that the complainant is not indispensable to the disciplinary proceedings and her failure to appear for cross-examination or to provide corroborative evidence of her allegations is of no merit. What is important is whether, upon due investigation, the IBP Board of Governors finds sufficient evidence of the respondents misconduct to warrant the exercise of its disciplinary powers. b. Merits of the Complaint "In administrative cases against lawyers, the quantum of proof required is preponderance of evidence which the 49 complainant has the burden to discharge." Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has a greater weight than that of the other. It means evidence which is more convincing to the court as worthy of belief compared to the presented contrary evidence. Under Section 1, Rule 133 of the Rules of Court, in determining whether preponderance of evidence exists, the court may consider the following: (a) all the facts and circumstances of the case; (b) the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, and the probability or improbability of their testimony; (c) the witnesses interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; and (d) the number of witnesses, although it does not mean that preponderance is 50 necessarily with the greater number. By law, a lawyer enjoys the legal presumption that he is innocent of the charges against him until the contrary is proven, and that as an officer of the court, he is presumed to have 51 performed his duties in accordance with his oath. The IBP Commissioner set out her findings as follows: The undersigned, after a careful evaluation of the evidence presented by both parties, finds that the charges of the complainant against the respondent are worthy of belief based on the following:

First, the allegation of the respondent that Reynold So was actually co-owner of spouses Ylanas (sic) in the properties subject of the Deed of Sale between Felix Arellano and Spouses Ylanas (sic) is hard to believe despite the presentation of the Memorandum of Agreement. It is elementary in Rules of Evidence that when the contents of a written document are put in issue, the best evidence would be the document itself. In the Deed of Sale between Felix Arellano and Spouses Ylanas (sic), the buyer of the subject properties is only Laurentino L. Ylaya married to Fe A. Ylaya. The document does not state that Reynold So was likewise a buyer together with Laurentino Ylaya, or that the former paid half of the purchase price. Also, it is hard for this Commission to believe that Reynold So, assisted by a lawyer at that and who allegedly paid half of the purchase price, would not insist for the inclusion of his name in the Deed of Sale as well as the Transfer Certificate of Title subsequently issued. The Memorandum of Agreement between the spouses Ylaya and Reynold So produced by the respondent cannot overturn the belief of this Commission considering that the Memorandum of Agreement was executed more than a month AFTER the Deed of Sale between Felix Arellano and the Ylayas was notarized. This is not to mention the fact that the complainant denied ever having executed the Memorandum of Agreement. A close examination of the signatories in the said Memorandum of Agreement would reveal that indeed, the alleged signatures of the complainant and her husband are not the same with their signatures in other documents. Assuming, for the sake of argument, that the Memorandum of Agreement is valid, thereby making Laurentino Ylaya and co-owner Reynold So co-owners of the subject properties (Please see Annex "B" of respondents Comment), this Commission finds it hard to believe Laurentino Ylaya would sell it to Reynold So for P200,000 x x x when his minimum expenses for the purchase thereof is already P225,000.00 and he was expecting to receiveP7,000,000.00, more or less. That would mean that if Reynold So and the complainant were co-owners, theP7,000,000.00 would then be equally divided among them at P3,500,000.00 each, far above the P200,000.00 selling price reflected in the pre-signed Deed of Sale. As to the second issue, this Commission believes that the respondent committed serious error in notarizing the Deed of Sale and the Memorandum of Agreement between his uncle Reynold So and Laurentino Ylaya based on Rule IV, Section 3 (c) of A.M. No. 02-8-13-SC which provides as follows: "Sec. 3. Disqualifications a notary public is disqualified from performing a notarial act if he: (a) x x x. (b) x x x. (c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree."

The defense therefore of the respondent that he did not violate the aforementioned Rule becausehis uncle Reynold So, the buyer is not the principal in the Subject Deed of Sale but the seller Laurentino Ylaya (please see page 3 of the respondents Supplemental Position Paper) is misplaced. Clearly, both the buyer and the seller in the instant case are considered principals in the contract entered into. Furthermore, if we are to consider the argument of the respondent that his uncle was not a principal so as to apply the afore-quoted provision of the Rules, the respondent still violated the Rules when he notarized the subject Memorandum of Agreement between Laurentino Ylaya and his uncle Reynold So. Clearly, both 52 complainant and Reynold So were principal parties in the said Memorandum of Agreement. The respondent argues that the IBP Commissioners findings are contrary to the presented evidence, specifically 53 to the MOA executed by Laurentino and Reynold acknowledging the existence of a co-ownership; to the complainants Ex Parte Motion to Withdraw the Verified Complaint and To Dismiss the Case dated November 14, 2006 where she stated that the parties have entered into a compromise agreement in Civil Case No. 2902, and that the disbarment complaint arose from a misunderstanding, miscommunication and improper appreciation of 54 55 facts; to her Affidavit dated February 27, 2008 affirming and confirming the existence, genuineness and due 56 execution of the Deed of Absolute Sale notarized on March 6, 2000; and to the Deed of Absolute Sale notarized 57 in 2001. In all, the respondent claims that these cited pieces of evidence prove that this administrative complaint against him is fabricated, false and untrue. He also points to Atty. Robert Peneyra, the complainants counsel in this 58 administrative case, as the hand behind the complaint. According to the respondent, Atty. Peneyra harbors illwill against him and his family after his father filed several administrative cases against Atty. Peneyra, one of 59 which resulted in the imposition of a warning and a reprimand on Atty. Peneyra. Reynold, in his Affidavit dated October 11, 2004, confirms that there was a co-ownership between him and Laurentino; that Laurentino decided to sell his half of the property to Reynold because he (Laurentino) had been sickly and in dire need of money to pay for his medical bills; that Laurentino agreed to the price of P200,000.00 as this was almost the same value of his investment when he and Reynold jointly acquired the property; and that the sale to Reynold was with the agreement and consent of the complainant who voluntarily signed the Deed of 60 Sale. After examining the whole record of the case, we agree with the respondent and find the evidence insufficient to prove the charge that he violated Canon 1, Rule 1.01 of the Code of Professional Responsibility and Section 3(c), Rule IV of A.M. No. 02-8-13-SC. Specifically, (1) the evidence against the respondent fails to show the alleged fraudulent and deceitful acts he has taken to mislead the complainant and her husband into signing a "preparatory deed of sale" and the conversion into a Deed of Absolute Sale dated June 4, 2001 in favor of Reynold; and (2) no prohibition exists against the notarization of a document in which any of the parties interested is the notarys relative within the 4th civil degree, by affinity or consanguinity, at that time the respondent notarized the documents.

In her Report and Recommendation, the IBP Commissioner concluded that the respondent is liable for deceit and fraud because he failed to prove the existence of a co-ownership between Laurentino and Reynold; in her opinion, the signatures of the complainant and of her husband on the MOA "are not the same with their 62 signatures in other documents." We do not agree with this finding. While the facts of this case may raise some questions regarding the respondents legal practice, we nevertheless found nothing constituting clear evidence of the respondents specific acts of fraud and deceit. His failure to prove the existence of a co-ownership does not lead us to the conclusion that the MOA and the Deed of Absolute Sale dated June 4, 2001 are spurious and that the respondent was responsible for creating these spurious documents. We are further persuaded, after noting that in disregarding the MOA, the IBP Commissioner failed to specify what differences she observed in the spouses Ylayas signatures in the MOA and what documents were used in comparison. Apart from her allegations, the complainants pieces of evidence consist of TCT Nos. 162632 and 162633; her 64 Motion for Leave to Intervene in Civil Case No. 2902 dated May 17, 2000; the RTC order in Civil Case No. 2902 65 dated November 6, 2000 fixing the price of just compensation; the Deed of Absolute Sale dated June 4, 66 2001; the spouses Ylayas Verified Manifestation dated September 2, 2002, filed with the RTC in Civil Case No. 2902, assailing the Motion to Deposit Just Compensation filed by the respondent on behalf of Reynold and 67 manifesting the sale between Laurentino and Reynold; the Provincial Prosecutors Subpoena to the 68 complainant in connection with the respondents complaint for libel; the respondents complaint for libel 69 against the complainant dated August 27, 2003; the complainants Counter Affidavit dated March 26, 2004 70 against the charge of libel; and the respondents letter to the Provincial Attorney of Palawan dated April 5, 2004, requesting for "official information regarding the actual attendance of Atty. ROBERT Y. PENEYRA" at an 71 MCLE seminar. We do not see these documentary pieces of evidence as proof of specific acts constituting deceit or fraud on the respondents part. The documents by themselves are neutral and, at the most, show the breakdown of the attorney-client relationship between the respondent and the complainant. It is one thing to allege deceit and 72 misconduct, and it is another to demonstrate by evidence the specific acts constituting these allegations. We reiterate that in disbarment proceedings, the burden of proof is on the complainant; the Court exercises its disciplinary power only if the complainant establishes her case by clear, convincing, and satisfactory 73 evidence. Preponderance of evidence means that the evidence adduced by one side is, as a whole, superior to or has a greater weight than that of the other party. When the pieces of evidence of the parties are evenly balanced or when doubt exists on the preponderance of evidence, the equipoise rule dictates that the decision 74 be against the party carrying the burden of proof. In this case, we find that the complainants evidence and the records of the case do not show the respondents deliberate fraudulent and deceitful acts. In the absence of such proof, the complaint for fraud and deceit under Canon 1, Rule 1.01 of the Code of Professional Responsibility must perforce be dismissed.
63

61

We note that the respondent has not squarely addressed the issue of his relationship with Reynold, whom the complainant alleges to be the respondents uncle because Reynold is married to the respondents maternal 75 aunt. However, this is of no moment as the respondent cannot be held liable for violating Section 3(c), Rule IV 76 of A.M. No. 02-8-13-SC because the Deed of Absolute Sale dated June 4, 2001 and the MOA dated April 19, 77 2000 were notarized by the respondent prior to the effectivity of A.M. No. 02-8-13-SC on July 6, 2004. The notarial law in force in the years 2000 - 2001 was Chapter 11 of Act No. 2711 (the Revised Administrative Code of 1917) which did not contain the present prohibition against notarizing documents where the parties are related to the notary public within the 4th civil degree, by affinity or consanguinity. Thus, we must likewise dismiss the charge for violation of A.M. No. 02-8-13-SC. c. Liability under Canons 15, 16 and 18 We find the respondent liable under Canon 15, Rule 15.03 for representing conflicting interests without the written consent of all concerned, particularly the complainant; under Canon 16 for being remiss in his obligation to hold in trust his clients properties; and under Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him. Canon 15, Rule 15.03 states: A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts. [emphasis ours] The relationship between a lawyer and his client should ideally be imbued with the highest level of trust and confidence. Necessity and public interest require that this be so. Part of the lawyers duty to his client is to avoid representing conflicting interests. He is duty bound to decline professional employment, no matter how attractive the fee offered may be, if its acceptance involves a violation of the proscription against conflict of interest, or any of the rules of professional conduct. Thus, a lawyer may not accept a retainer from a defendant after he has given professional advice to the plaintiff concerning his claim; nor can he accept employment from another in a matter adversely affecting any interest of his former client. It is his duty to decline employment in 78 any of these and similar circumstances in view of the rule prohibiting representation of conflicting interests. The proscription against representation of conflicting interest applies "even if the lawyer would not be called upon to contend for one client that which the lawyer has to oppose for the other, or that there would be no occasion to use the confidential information acquired from one to the disadvantage of the other as the two 79 actions are wholly unrelated." The sole exception is provided in Canon 15, Rule 15.03 of the Code of Professional Responsibility if there is a written consent from all the parties after full disclosure. Based on the records, we find substantial evidence to hold the respondent liable for violating Canon 15, Rule 15.03 of the Code of Professional Responsibility. The facts of this case show that the respondent retained clients who had close dealings with each other. The respondent admits to acting as legal counsel for Cirilo Arellano, the 80 spouses Ylaya and Reynold at one point during the proceedings in Civil Case No. 2902. Subsequently, he 81 represented only Reynold in the same proceedings, asserting Reynolds ownership over the property against all 82 other claims, including that of the spouses Ylaya.

We find no record of any written consent from any of the parties involved and we cannot give the respondent the benefit of the doubt in this regard. We find it clear from the facts of this case that the respondent retained Reynold as his client and actively opposed the interests of his former client, the complainant. He thus violated Canon 15, Rule 15.03 of the Code of Professional Responsibility. We affirm the IBP Commissioners finding that the respondent violated Canon 16. The respondent admits to 83 losing certificates of land titles that were entrusted to his care by Reynold. According to the respondent, the complainant "maliciously retained" the TCTs over the properties sold by Laurentino to Reynold after she 84 borrowed them from his office. Reynold confirms that the TCTs were taken by the complainant from the 85 respondents law office. The respondent is reminded that his duty under Canon 16 is to "hold in trust all moneys and properties of his client that may come into his possession." Allowing a party to take the original TCTs of properties owned by another an act that could result in damage should merit a finding of legal malpractice. While we note that it was his legal staff who allowed the complainant to borrow the TCTs and it does not appear that the respondent 86 was aware or present when the complainant borrowed the TCTs, we nevertheless hold the respondent liable, as the TCTs were entrusted to his care and custody; he failed to exercise due diligence in caring for his clients properties that were in his custody. We likewise find the respondent liable for violating Canon 18, Rule 18.03 for neglecting a legal matter entrusted to him. Despite the respondents admission that he represented the complainant and her late husband in Civil Case No. 2902 and that he purportedly filed a Motion for Leave to Intervene in their behalf, the records show that he never filed such a motion for the spouses Ylaya. The complainant herself states that she and her late husband were forced to file the Motion for Leave to Intervene on their own behalf. The records of the case, 87 which include the Motion for Leave to Intervene filed by the spouses Ylaya, support this conclusion. Canon 18, Rule 18.03 requires that a lawyer "shall not neglect a legal matter entrusted to him, and his negligence in connection *therewith+ shall render him liable." What amounts to carelessness or negligence in a lawyers discharge of his duty to his client is incapable of an exact formulation, but the Court has consistently held that 88 the mere failure of a lawyer to perform the obligations due his client is per se a violation. In Canoy v. Ortiz, we held that a lawyers failure to file a position paper was per se a violation of Rule 18.03 of the Code of Professional Responsibility. Similar to Canoy, the respondent clearly failed in this case in his duty to his client when, without any explanation, he failed to file the Motion for Leave to Intervene on behalf of the spouses Ylaya. Under the circumstances, we find that there was want of diligence; without sufficient justification, this is sufficient to hold the respondent liable for violating Canon 18, Rule 18.03 of the Code of Professional Responsibility. d. The Complainants Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss the Case and her Affidavit
89

We are aware of the complainants Ex Parte Motion to Withdraw the Verified Complaint and To Dismiss the Case 90 91 dated November 14, 2006 and her Affidavit affirming and confirming the existence, genuineness and due 92 execution of the Deed of Absolute Sale notarized on March 6, 2000. The complainant explains that the parties have entered into a compromise agreement in Civil Case No. 2902, and that this disbarment complaint was filed 93 because of a "misunderstanding, miscommunication and improper appreciation of facts"; she erroneously accused the respondent of ill motives and bad intentions, but after being enlightened, she is convinced that he has no personal or pecuniary interests over the properties in Civil Case No. 2902; that such misunderstanding 94 was due to her unfamiliarity with the transactions of her late husband during his lifetime. The complainant now pleads for the respondents forgiveness, stating that he has been her and her late husbands lawyer for over a 95 decade and affirms her trust and confidence in him. We take note that under their Compromise Agreement 96 dated November 14, 2006 for the expropriation case, the complainant and Reynold equally share the just compensation, which have since increased to P10,000,000.00. While the submitted Ex Parte Motion to Withdraw the Verified Complaint and to Dismiss the Case and the Affidavit appear to exonerate the respondent, complete exoneration is not the necessary legal effect as the submitted motion and affidavit are immaterial for purposes of the present proceedings. Section 5, Rule 139-B of the Rules of Court states that, "No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of charges, or failure of the complainant to prosecute the same." In Angalan v. Delante, despite the Affidavit of Desistance, we disbarred the respondent therein for taking 98 advantage of his clients and for transferring the title of their property to his name. In Bautista v. Bernabe, we revoked the lawyers notarial commission, disqualified him from reappointment as a notary public for two years, and suspended him from the practice of law for one year for notarizing a document without requiring the affiant to personally appear before him. In this cited case, we said: Complainants desistance or withdrawal of the complaint does not exonerate res pondent or put an end to the administrative proceedings. A case of suspension or disbarment may proceed regardless of interest or lack of interest of the complainant. What matters is whether, on the basis of the facts borne out by the record, the charge of deceit and grossly immoral conduct has been proven. This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or disbarment is not a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare. They are undertaken for the purpose of preserving courts of justice from the official ministration of persons unfit to practice in them. The attorney is called to answer to the court for his conduct as an officer of the court. The complainant or the person who called the attention of the court to the attorneys alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper 99 administration of justice. In sum, in administrative proceedings against lawyers, the complainants desistance or withdrawal does not terminate the proceedings. This is particularly true in the present case where pecuniary consideration has been given to the complainant as a consideration for her desistance. We note in this regard that she would 100 receiveP5,000,000.00, or half of the just compensation under the Compromise Agreement, and thus agreed to
97

withdraw all charges against the respondent. From this perspective, we consider the complainants desistance to be suspect; it is not grounded on the fact that the respondent did not commit any actual misconduct; rather, because of the consideration, the complainant is now amenable to the position of the respondent and/or Reynold. e. Procedural aspect We remind all parties that resolutions from the IBP Board of Governors are merely recommendatory and do not attain finality without a final action from this Court. Section 12, Rule 139-B is clear on this point that: Section 12. Review and decision by the Board of Governors. xxxx (b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.1wphi1 The Supreme Court exercises exclusive jurisdiction to regulate the practice of law. It exercises such disciplinary functions through the IBP, but it does not relinquish its duty to form its own judgment. Disbarment proceedings are exercised under the sole jurisdiction of the Supreme Court, and the IBPs recommendations imposing the penalty of suspension from the practice of law or disbarment are always subject to this Courts review and approval. The Penalty In Solidon v. Macalalad, we imposed the penalty of suspension of six ( 6) months from the practice of law on the respondent therein for his violation of Canon 18, Rule 18.03 and Canon 16, Rule 16.01 of the Code of 104 Professional Responsibility. In Josefina M. Anion v. Atty. Clemencio Sabitsana, Jr., we suspended the respondent therein from the practice of law for one (1) year, for violating Canon 15, Rule 15.03 of the Code of Professional Responsibility. Under the circumstances, we find a one (1) year suspension to be a sufficient and appropriate sanction against the respondent. WHEREFORE, premises considered, we set aside Resolution No. XVIII-.2007-302 dated December 14, 2007 and Resolution No. XIX-2010-545 dated October 8, 2010 of the IBP Board of Governors, and find respondent Atty. Glenn Carlos Gacott GUILTY of violating Rule 15.03 of Canon 15, Canon 16, and Rule 18.03 of Canon 18 of the Code of Professional Responsibility. As a penalty, he is SUSPENDED from the practice of law for one (1) year, with a WARNING that a repetition of the same or similar act will be dealt with more severely. SO ORDERED.
103 102

101